Ayre v Swan

Court of Appeal (NSW)|2019-06-24|Before: Basten JA, Macfarlan JA, McCallum JA, Mr P

Solicitors: Hall & Wilcox Lawyers (Appellant) Byrnes Lawyers (Respondent) File Number(s): 2019/8079 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 14 December 2018 Before: Yehia SC DCJ File Number(s): 2014/150247

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BASTEN JA: Mid-morning on 18 June 2012 the appellant, Vicki Ayre, was driving a Toyota Hilux utility in a north-westerly direction on Lake Road, Port Macquarie. Lake Road had two lanes travelling in each direction and traffic was subject to a 50kph speed limit. The appellant sought to make a right hand turn into a commercial driveway, in front of oncoming traffic. As she was completing the turn, a motorcycle ridden by the respondent, Mitchell Swan, hit the back passenger side of the appellant's vehicle. Mr Swan suffered injuries, particularly to his left leg and knee and multiple abrasions. In October 2014 he commenced proceedings in the District Court at Port Macquarie alleging that his injuries were caused by the negligence of Ms Ayre. It is convenient to refer to Mr Swan as the plaintiff and to Ms Ayre as the defendant.
A trial proceeded over six days in April, May, June and October 2018 before Judge Yehia SC. In a judgment delivered on 14 December 2018, the trial judge found the defendant liable, assessed the plaintiff's contributory negligence at 50% and gave judgment in favour of the plaintiff in an amount of $307,365.46.
By an amended notice of appeal filed on 19 March 2019, the appellant takes issue with the findings as to liability, contributory negligence and the quantum of the damages awarded. For the reasons explained below, the appeal with respect to liability should be upheld and judgment entered for the defendant in the proceedings below. It will not be necessary to consider other aspects of the appeal.

Evidence as to circumstances of collision

As the defendant approached the point at which she sought to make a right hand turn, Lake Road was relatively straight, but just past that point, began a gentle curve in a westerly direction (to the appellant's left). There was a slight crest just before the curve, as viewed by the defendant. Evidence was given at trial by the plaintiff, the defendant, and an independent witness, Michael John Smith.
As the defendant commenced her turn, there was a vehicle approaching in the outer of the two oncoming lanes. The driver, Mr Smith, gave evidence that he was a vehicle mechanic and travelled along Lake Road "probably four or five times a day." [1] He said that he did not have to take evasive action and there was plenty of time for the defendant to turn in front of him. [2] Mr Smith gave evidence that he was travelling at approximately the speed limit, namely 50kph.
As the defendant commenced her turn, the plaintiff on his motorcycle was behind Mr Smith's vehicle which, as the trial judge found, obscured the defendant's view of him. At about the moment that the defendant commenced her turn, the motorcycle moved into the kerbside lane, increased sped, and passed Mr Smith on the inside.
A critical issue in the assessment of liability was the speed at which the motorcycle was travelling over the period of some 2.25 seconds from the time the appellant commenced her right hand turn until the moment of impact. Both Mr Smith and the defendant estimated the speed as greatly in excess of the speed limit. Mr Smith said "[r]oughly 90, 100 kilometres". [3] The plaintiff said he couldn't estimate his speed exactly, but would not have been going "any more than 60, any more than 60 - 50 to 60 Ks an hour." [4] He denied that he was going over 100kph before applying his brakes. [5]
In resolving the discrepancies in evidence as to the speed at which the motorcycle was travelling, the Court had the benefit of evidence derived from a CCTV camera which captured the movement of the traffic on Lake Road at the time of the accident. The footage was analysed by a consulting traffic engineer, Roger Stuart-Smith called for the defendant. He recovered nine consecutive frames, time stamped, which allowed him to make calculations based on known distances, over the 2.5 seconds immediately prior to the collision. He identified the average speed of the vehicle driven by Mr Smith as about 47kph. He opined that Mr Smith was initially travelling at about 53kph and came to a stop in frame 10, the frame closest to the point of impact. Allowing for a margin of error, he estimated Mr Smith's initial speed between frames 1 and 6 at about 50-55kph. [6]
A similar calculation with respect to the plaintiff established a speed approaching the defendant's vehicle of about 100-120kph and a speed at the moment of impact as 70kph.
Mr Stuart-Smith was somewhat more guarded about the estimate of the defendant's speed, as the point of impact was distant from the camera and she was moving slowly. However, he estimated the average speed over the turn (a distance of 16.5m) as about 24kph.
There was other expert evidence. An initial report was undertaken by Fred Schnerring, consulting engineer, for the plaintiff, dated 10 February 2015. On 19 January 2017 Mr Schnerring provided a supplementary report in response to that of 24 May 2015 prepared by Mr Stuart-Smith. On 26 October 2017 the engineers produced a joint report answering 10 specific questions. On one point the experts were agreed: if the plaintiff had been travelling at the sign-posted speed limit of 50kph, he would have been able to avoid the collision, though Mr Schnerring said he would have had to brake. It will be appropriate to return to other aspects of the joint report below.
Two other experts provided reports with respect to the calculations undertaken by Mr Stuart-Smith based on the CCTV footage and known measurements of distance. The plaintiff obtained a report from Dr Glenn Porter, an associate professor of criminology at the University of New England, who had expertise as a "forensic photographer". The defendant obtained a report from Professor John Trinder, an emeritus professor in the School of Civil and Environmental Engineering at UNSW and a professional surveyor and photogrammetrist.
Dr Porter and Professor Trinder gave joint evidence at the trial; Mr Stuart-Smith was called and cross-examined; Mr Schnerring did not give evidence.
Although the trial judge described Mr Schnerring's evidence as "unchallenged", [7] the focus of the expert evidence was on Mr Stuart-Smith's calculations of the speed of the vehicles, particularly the plaintiff's motorcycle, based on the CCTV footage. The validity of his calculations obtained powerful support from the evidence of Professor Trinder. However, before turning to that material, it is convenient to identify the steps in the reasoning of the trial judge in upholding the plaintiff's claim as to liability. The challenges raised on appeal may conveniently be addressed at the same time.

Reasoning of trial judge

The judge adopted the approach of setting out and analysing the evidence of the witnesses before identifying the issues to which they were directed. However, before commencing a consideration of the issue of liability, the judge made the following critical findings of fact which appear to have informed the ultimate finding as to liability: [8] 1. the plaintiff was not travelling in excess of 100kph prior to impact; 2. the plaintiff applied the front wheel brake, without locking, and applied and locked the rear wheel brake; 3. the motorcycle was travelling "somewhere in the vicinity of" 82kph prior to impact; 4. had the plaintiff been travelling at 50kph the collision was avoidable although he would have had to apply his brakes; 5. the defendant commenced her turn at a speed of 30-35kph and slowed to about 15-20kph during the turn before increasing speed in an attempt to avoid the collision; 6. "Mr Smith's car created a block out that may have obscured the defendant's view of the plaintiff prior to her starting her turn".
The judge set out s 5B of the Civil Liability Act 2002 (NSW) and addressed in turn the requirements of subs (1)(a), (b) and (c). Nothing turns on (b), dealing with the significance of the risk of a collision. However, the judge unfortunately elided the distinction between pars (a), described as "what a reasonably prudent driver in the position of the defendant would have done", and (c) which identified what precaution a reasonable person in the position of the defendant would have taken.
The first step is to identify with some precision the risk of harm against which the defendant was required to take precautions. At a level of generality, the risk was a risk of collision with oncoming traffic when turning right across the path of such traffic. More particularly, the risk to be assessed by the driver is whether the turn can be completed safely given the distance and speed of approaching traffic. More specifically again, the risk in the present case was twofold, namely whether there was time to make the turn in front of, (i) Mr Smith's approaching vehicle, and (ii) any possible vehicle obscured by Mr Smith's vehicle.
The judge found that the appellant ought to have foreseen that there could be a vehicle in both oncoming lanes and that there could be a vehicle not visible to the appellant, because its presence was obscured by Mr Smith's car. [9] There was no finding (nor could there have been on the evidence) that the appellant should have seen the plaintiff's motorcycle before commencing her turn. Rather, the judge made the following findings: "[60] The defendant was aware of the flow of traffic and vehicles coming through the roundabout in the opposite direction. The defendant could see Mr Smith's vehicle in the lane closest to her travelling in the opposite direction. There can be no question that a reasonably prudent driver in the position of the defendant would have slowed down to a greater degree, or indeed, come to a full stop to enable her to keep a proper lookout before making the turn across oncoming traffic. … [62] … In my view the reasonably prudent driver in the circumstances the defendant found herself in would have come to a stop, or at the very least slowed down to a greater degree, before making the turn particularly in circumstances where Mr Smith's car created a 'block out'."
The requirement to slow down to a greater degree became (in [64]) a requirement to slow down to 5-10kph. The final conclusion was expressed in the following terms: "[66] For the above reasons, I am satisfied that the [appellant] was negligent as alleged. Ms Ayre failed to adequately reduce her speed, or indeed come to a stop so as to keep a proper lookout to see the plaintiff approach, and failed to desist in making the right-hand turn until it was safe to do so."
The appellant took issue with this reasoning on the basis that it involved an element of hindsight, namely that it was not in fact "safe" to make the turn because of the presence, unseen, of the plaintiff on his motorcycle. Further, the appellant submitted that the purpose of slowing down or stopping must have been, not to permit the appellant to keep a proper lookout, but to allow time for the motorcycle to come into view. This was, again, hindsight reasoning.
Accepting there was a risk that there was another vehicle obscured by Mr Smith's vehicle, the material question was whether there was a significant risk of that vehicle, unlike Mr Smith, travelling at a significantly higher speed, above the speed limit, or was about to accelerate fast. If the risk which materialised should have been foreseen, then the appellant should not have made the turn in front of Mr Smith. It was that precaution which had to be established in order to establish liability. The actual reasoning adopted by the trial judge was flawed, unless it incorporated a finding that the appellant ought reasonably to have foreseen that a vehicle, not visible behind Mr Smith, might accelerate to a speed in the vicinity of 82kph, or faster.
Secondly, the appellant was critical of the reasoning set out above on the basis that it took no account of the evidence of the defendant and Mr Smith who both considered that the defendant had time to complete her right hand turn safely. She gave evidence-in-chief that she had "ample time to make my turn" [10] and, in cross-examination, [11] disagreed that it was appropriate to stop before executing the right hand turn. [12] That assessment did not have to be accepted, but if not, it should have been expressly rejected, with reasons.
The trial judge dealt with Mr Smith's evidence in the following passage: "[35] Mr Smith gave an opinion that the defendant had sufficient time to complete her turn. I place little weight on that opinion having regard to the fact that it is a lay opinion not based on a qualified estimate as to speeds and based upon his own perspective at a time when he was unaware of the precise location of the plaintiff's motorcycle."
This analysis appears to have assumed that Mr Smith was expressing an opinion as to whether the appellant could have safely turned in front of a speeding motorcycle; rather, it is tolerably clear that he was expressing an opinion that the appellant had time to complete her turn in front of vehicles travelling, as he was, at the speed limit. There was no reason to reject his evidence in that respect: he was not giving expert evidence, but recounting an assessment he made as a driver involved in making decisions with respect to a turning vehicle at the critical time. The significance of this evidence was with respect to a finding of fact made by the trial judge that "[h]ad the plaintiff been travelling at an approach speed of 50 km/h, the collision was avoidable although [braking] would be required." [13] That finding was inconsistent with the evidence of the defendant and Mr Smith. If the plaintiff had been travelling at 50kph, he would not have passed Mr Smith, and would probably have remained behind him. His evidence in this regard was highly pertinent.
With respect to the plaintiff's speed, the trial judge rejected his evidence that he was travelling at 50-60kph and appears to have discounted Mr Smith's evidence as to his speed of 90-100kph, although she did not refer to it expressly. Rather, she seems to have accepted Mr Schnerring's calculations and rejected the evidence of Mr Stuart-Smith based on the CCTV footage. It is necessary to consider whether that approach was erroneous.
In addition to the CCTV footage, estimates of speed were available by reference to: 1. the length of a skid left by the motorcycle just prior to impact; 2. damage suffered by the vehicles as a result of the collision, and 3. the likelihood and extent of pre-skid braking.

Expert evidence of speed of motorcycle

The trial judge rejected Mr Stuart-Smith's evidence that the plaintiff was travelling in excess of 100kph prior to impact. [14] She did that on the basis of a critique of the use made by Mr Stuart-Smith of the CCTV footage, although the way in which particular factors affected that decision was not explained. Clearly some factors favoured reliance on his methodology, such as the statement by Professor Trinder that "the method was a good one", while others appear to have been negative, including the absence of "peer review literature validating the methodology employed". The judge noted that Mr Stuart-Smith had "regard to a two metre margin of error in making his calculations", without indicating whether that was favourable or adverse to an acceptance of his conclusions.
With respect to the estimate of a speed in excess of 100kph made by Mr Stuart-Smith, the judge concluded: "[51] Notwithstanding the evidence of Professor Trinder as to the reliability of the methodology used by Mr Stuart Smith, I have some concerns about the probative value of Mr Stuart Smith's opinion about the speed of the motorcycle leading up to the collision. That concern emanates from the significant reliance placed on the CCTV footage by Mr Stuart Smith having regard to the criticisms raised about [its] poor quality and the resulting artefacts. Furthermore, although a 2 metre margin of error was taken into account, there is simply an absence of peer-reviewed literature going to the validity of the methodology used and the margin of error identified. While I do not reject the evidence of Stuart Smith, I have taken into account matters that may undermine the reliability of some of the opinions expressed."
Despite her statement that she did not reject the evidence of Mr Stuart-Smith appeared to include his opinion with respect to the speed of the motorcycle, in the next paragraph she expressly rejected it.
It is necessary to have regard to the exercise undertaken by Mr Stuart-Smith and the critique of it by Dr Porter and Professor Trinder.
Mr Stuart-Smith obtained nine frames from the CCTV footage which he described as taken "at intervals of about [sic] 0.281 seconds." This level of accuracy may be doubted. In any event, there was no challenge to the evidence that the nine frames covered a period of 2.25 seconds.
Mr Stuart-Smith, using an aerial photograph of the site, prepared a scaled site plan based on measurements taken on the ground, noting particular features visible in the footage. [15] He then drew sight lines from the point of the camera and marked on copies of the plan the position of each vehicle (the motorcycle, Mr Smith's car and the utility) as shown in each frame. In order to assess the speed of the vehicles, distances were calculated by reference to both the full set of frames and subsets. Thus, in the period of 2.25 seconds, the plan indicated that Mr Smith had travelled a distance of 29.6 metres at an average speed of about 47kph. However, taking only frames 1 and 6, the initial speed of Mr Smith's car was about 53kph. Mr Stuart-Smith allowed for a margin for error of up to one metre in the distance travelled and therefore assessed Mr Smith's initial speed at between 50 and 55kph.
Between frames 1 and 9, the plaintiff travelled a total distance of 62 metres (twice the distance travelled by Mr Smith) at an average speed of about 100kph. Following frame 5, the plaintiff appeared to slow, presumably braking, before the start of the skid mark which was located between the sight lines of frames 6 and 7. Mr Stuart-Smith calculated that between frames 2 and 5 the plaintiff's speed was 111kph, but allowing for a margin of error of up to two metres, the speed was identified as "about 100 to 120 km/h (in other words, in excess of 100 km/h)." [16]
Dr Porter raised quite general concerns about Mr Stuart-Smith's methodology in quite obscure language. It is easier to follow and assess his concerns by reference to Professor Trinder's responses. As Mr Stuart-Smith asserted and Professor Trinder explained, the technique adopted by Mr Stuart-Smith did not involve photogrammetry; that was because he was not making measurements from the photographs but rather superimposing the photographs onto an independently measured site plan. Professor Trinder noted that the images were not sufficiently well defined in order to permit measurements to be taken from the photographic footage. [17]
Professor Trinder described Mr Stuart-Smith's approach in the following terms: [18] "The extracted frames can be zoomed to identify the locations of the vehicles, but it is only possible to locate the centre of the motor cycle and the approximate locations of the front and back of the other vehicles in the pixelated images. Mr Stuart-Smith has adopted an approach … that involved projecting sight lines from the CCTV footage onto a scaled plan of the area using an aerial photograph as an underlay. Features on the ground were used as control points for defining the directions of the sight lines to the vehicles. Intersections of the sight lines onto Lake Rd provided positions of the vehicles on that road."
In response to a question as to the validity of Mr Stuart-Smith's findings, Professor Trinder stated: [19] "I consider the method used by Mr Stuart-Smith is valid. Therefore, I consider his estimate of the speed of the motor cycle is also valid within the accuracy of the location of the sight lines. From the estimated distance travelled by the motor cycle on Lake Rd, derived from the sight lines, the motor cycle speed is about 100 km/h or above. Mr Stuart-Smith has allowed for a margin of error of 2 m in the estimated distance travelled of 26.1m by the motor cycle in 0.8 s between frames 2 and 5 (page 32) or 8% in the speed, which is reasonable considering the lack of clarity of identification of the motor cycle."
The question whether the two metres allowed in calculating the speed of the motorcycle was a sufficient margin of error was addressed in the joint experts' report. [20] Dr Porter gave no precise answer to the question, but noted that Mr Stuart-Smith had not explained how he calculated the margin of error. Professor Trinder answered in the affirmative. Professor Trinder explained his acceptance of the margin of error in the following passages: "In Section 9.4 Stuart-Smith estimated that the motor cycle speed is at least 100 km/h or 7.8 m between several frames, so the margin of error is also about ¼ the distance travelled between 2 frames. In this case the margin of error is also about the length of a motor cycle or less than half the length of a car which is consistent with his estimate of accuracy. In order to provide a further estimate [of] the accuracy of locating features in the video frames I have investigated the size of the pixels in the region of Lake Rd. A vehicle (approximately 4.8 m in length) in the region of Lake Rd on [frame 1] measures approximately 38 pixels in length which means that a pixel in that part of the frame in the scene measures of the order of 0.13 m. … Regarding accuracy of locating background features which was the basis of the method by Mr Stuart-Smith, from my extensive experience in viewing aerial and satellite images, objects in digital frames can be located with a repeatability of 1 to 2 pixels or, in the video frames, 0.13 m to 0.26 m. For example, a tree trunk and a post in the above frame are of the order of 3 pixels in width, which means that they are about 0.4 m in [width]. It is estimated that it is possible to locate these objects with an accuracy of the order of 1 to 2 pixels … but let It be assumed that the accuracy is of the order of 0.3m. The vehicles in the images should be capable of being located with respect to these features with a similar accuracy. … Overall these accuracies are well within the accuracy estimated by Mr Stuart-Smith of half a car length. Therefore, the margins of error quoted by Mr Stuart-8mith are reasonable in terms of the distances [travelled] by the 2 vehicles between 2 frames, the frame pixel size on the object, and the scale of the plan used by Mr Stuart-Smith."
In her judgment, the trial judge noted Professor Trinder's view that Mr Stuart-Smith had adopted a "very good method" of calculation but stated that Professor Trinder "did not undertake the process of taking the measurements and reviewing whether the opinions formed by Stuart Smith were in fact accurate." [21] At least with respect to what appeared to be a critical issue, namely the sufficiency of the margin of error (identified by the trial judge as a relevant matter at [43(vi)]), that was not true: Professor Trinder had himself independently verified that the margin of error was acceptable, in the terms set out above. In the course of cross-examination, Professor Trinder stated: [22] "Well this is something that the two of us raised when we had our conclave. We were not aware of how the accuracy was determined, say of the order of 2 metres, which is the reason why I've covered that in the page 4, the rather lengthy description of how I would estimate, and that's really my estimates of the accuracy, keeping in mind that he was talking about 2 metres. I did some analysis of the information in the images, the pixel size for example, a plotting accuracy on the plan, which is to scale of 1 to 500, and my estimate was that the 2 metres is reasonable. COUNSEL: But it's certainly speculative, isn't it? WITNESS TRINDER: Well his - he might have been speculative, but I'm telling you here that that's why I've done this analysis and I don't - and my view is that my estimate is that it's not speculative."
To the extent that the margin of error was a matter of concern, there was no basis in the evidence to reject the figure adopted by Mr Stuart-Smith. At least, that was so in the absence of any explanation as to why Professor Trinder was rejected on this point (if he were).
The trial judge noted that Dr Porter had raised "a number of legitimate criticisms" in respect of Mr Stuart-Smith's report stating that while Dr Porter "did not express a view about whether the method was accurate or not, he did raise a number of concerns emanating from the poor quality of the CCTV footage and the failure by Mr Stuart-Smith, at least in his initial report, to explain how he took into account the artefacts in reaching his conclusions." [23] The trial judge stated that she took into account, among others, the following factors, namely: "i) the CCTV footage is of low resolution; ii) rectilinear distortion is present in the CCTV footage which may have the effect of 'curbing' [curving?] the image and distorting the appearance of the roadway; iii) the CCTV footage indicated a reduced frame rate producing a highly unnatural form of motion or movement; iv) the CCTV footage demonstrated interlacing artefacts which may result in a reduction in the level of detail and adversely impacting upon the determination of actual positions of objects…."
These headings were taken from Dr Porter's first report and identify "concerns" at a high level of generality. If, which is not clear, these factors were relied upon by the trial judge as a reason for rejecting Mr Stuart-Smith's evidence as to the speed of the motorcycle, that step should only have been taken having regard to Professor Trinder's evidence: his report addressed each of the concerns raised by Dr Porter. With respect to the first matter Professor Trinder stated: "I agree that the resolution of the images is poor, and the screen height of the motor cycle is about 2% or less of the height of the frame of 576 pixels. However, it is still possible to identify the general location of the motor cycle, though not the plaintiff himself. As stated above it is possible to measure to the centre of the motor cycle and the approximate locations of vehicles." The reference to the statements set out above was a reference to the findings with respect to the accepted margin of error.
With respect to "rectilinear lens distortion", Professor Trinder noted: "Dr Porter refers to the lens distortion which is apparent in the curving of the carpark line on the extreme lower edge of the image where I estimate that this distortion could be of the order of 10 or more pixels. … There appear to be no significant lens distortion effects towards the centre of the image …. As well, the important fact is that all measurements by Mr Stuart-Smith are made in similar parts of the images at about 60 to 70 pixels from the top of the image, which are likely to be subject to similar amounts of lens distortions. Since the speed of the plaintiff is estimated from differences in positions travelled between frames of the CCTV camera, which are in similar parts of the images, there would be minimal differences in the extent of lens distortions in each of the locations of the vehicles, and therefore, I do not believe that lens distortions would be a major factor in estimating the speeds of the vehicles."
With respect to "interlacing artefacts", Professor Trinder stated: "These artefacts are apparent in the images, especially those of the motor cycle. However, I do not believe that Mr Stuart-Smith has depended on locating the actual edges of the motor cycle. Indeed, Mr Stuart-Smith states … 'The Joint Report noted that accuracy of object identification in the images was possible to less than half a car length.' I believe this accuracy is consistent with those required for determining the speeds of the vehicles."
Finally, Professor Trinder stated: "[Mr Stuart-Smith] has interpreted sight lines from the images and superimposed them onto a scaled drawing. I believe this is an appropriate approach for the task of determining the speeds of the vehicles. Dr Porter commented … 'The novel method indicated by Mr Stuart-Smith using 'sight lines' has no known image interpretation basis and is fraught with the difficulties associated with the artefacts previously described.' This shows a lack of understanding of how an engineer, surveyor or photogrammetrist might use images derived from CCTV footage. Since the location of the camera is known, it is clearly appropriate to trace the sight lines as straight lines from the camera into the object space. It is an innovative approach in this case for which Mr Stuart-Smith has appropriately expressed its limitations. Dr Porter's conjectures that Mr Stuart-Smith's methods of the application of image source 'raises serious concerns regarding its reliability' are purely conjecture with no factual basis, in regard to methods or magnitudes of potential discrepancies in the results."
Neither the trial judge nor counsel identified any aspect of the oral testimony of Professor Trinder and Dr Porter which provided a basis for rejecting Professor Trinder's specific refutations of the generalities expressed in Dr Porter's critique.
There remain the calculations of Mr Schnerring. While it is no doubt possible to identify the speed at which the motorcycle was travelling when it hit the utility by reference to evidence of impact, and to identify the loss of speed which may have been achieved by braking where there were skid marks on the road, there must be a high level of imprecision attaching to such calculations. Further, Mr Schnerring was unable to ascertain whether there had been pre-skid braking. He noted that in a statement available to him, the plaintiff had described applying his rear brakes prior to the collision, but said nothing about his front brakes. In oral evidence, the plaintiff said that he believed he had applied his front brakes lightly as well. [24] While Mr Schnerring was not cross-examined, it was clear that the plaintiff's case with respect to undermining Mr Stuart-Smith's calculations based on the CCTV footage depended on Dr Porter, not Mr Schnerring.
In the circumstances, the balance of probabilities weighed heavily in favour of accepting Mr Stuart-Smith's calculations. Accordingly, the appropriate finding was that the plaintiff was travelling at a speed not less than 100kph as he passed Mr Smith.

Conclusions as to liability

The appropriate identification of the questions to be asked in determining whether there has been a breach of duty are expressed in s 5B of the Civil Liability Act in terms which are apt to apply to all cases of negligence. More precise factual inquiries will depend upon the circumstances of the case. Nevertheless, the precautions which a defendant is required to take against an identified risk of harm are limited to the precautions which "in the circumstances a reasonable person in the person's position would have taken": s 5B(1)(c).
In relation to a collision between two vehicles, self-preservation will usually operate in the same direction as one's duty to other road users. Thus, a reasonable person in the position of the defendant, turning across oncoming traffic, would have had a tangible interest in taking precautions not to collide with another vehicle. That does not mean that the defendant's subjective assessment must be accepted; it is, however, a circumstance to be taken into account in circumstances where both she and Mr Smith thought she could safely turn when she did and there was no effective challenge to her powers of observation, state of health, driving experience or responsibility.
As explained by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council: [25] "In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." In Roads and Traffic Authority of New South Wales v Dederer, [26] referring to that reasoning, Gummow J stated: "[47] The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe 'for users exercising reasonable care for their own safety'."
The test thus applied under s 5B(1)(c) does not require the taking of special precautions, not otherwise required, to avoid causing injury to a person on a motorcycle driving from a blind spot and overtaking on an inside lane, at a speed twice the posted speed limit. That conduct was not the conduct of a person exercising reasonable care for his own safety. Mr Smith was travelling at or slightly over the speed limit; on the probabilities, the plaintiff could have safely passed in front of a person passing Mr Smith on the inside at a reasonable speed travelling from behind Mr Smith's vehicle; the evidence did not establish that, at a reasonable speed the plaintiff would have passed him before reaching the point at which the defendant was turning.
Though it may not be this case, it is important note that a person driving a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public commits an offence carrying a maximum penalty of 9 months imprisonment. [27] That would constitute a "serious offence" which, if giving rise to injury to that person, would disentitle him or her from recovering damages, pursuant to s 54(1) of the Civil Liability Act. [28] Whilst it is no doubt reasonably foreseeable that persons will on occasion drive in the manner effected by the plaintiff in the present case, it is neither reasonable, nor practicable, to expect other road users to assume that drivers whose vehicles they cannot see may behave in such a manner and require them to take precautions against such conduct.
It is true that a road user, taking reasonable care for the safety of other road users, must expect that not everyone will comply with the letter of the road rules. Nevertheless, a driver is entitled to expect that other drivers will take reasonable care for their own safety. It was not reasonable to expect the defendant to take precautions against the risk of a motorcycle appearing from behind a vehicle at a speed approximately twice the speed limit.
The plaintiff failed to prove negligence on the part of the defendant. Accordingly, the proceedings should have been dismissed.

Orders

In my view the Court should make the following orders: 1. Allow the appeal and set aside orders 1-4 made in the District Court on 14 December 2018. 2. In place thereof, 1. Dismiss the plaintiff's claim against the defendant; 2. Order that the plaintiff pay the defendant's costs in the District Court. 1. Order that the respondent pay the appellant's cost of the appeal. 2. Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).
MACFARLAN JA: I agree with McCallum JA.
McCALLUM JA: I have had the benefit of reading the judgment of Basten JA in draft. I respectfully disagree with his Honour's conclusion as to liability, for the following reasons.
Justice Basten has set out the relevant facts in detail. The point on which my analysis differs from his Honour's is a narrow one. The basis for his Honour's conclusion is that the test applied under s 5B(1)(c) of the Civil Liability Act does not require the taking of "special precautions, not otherwise required, to avoid causing injury to a person on a motorcycle driving from a blind spot and overtaking on an inside lane, at a speed twice the posted speed limit".
In my respectful opinion, turning right across two lanes of traffic exercising reasonable care requires the driver to slow down to a point where he or she can see both lanes of oncoming traffic with no blind spot or blocked view. I would not regard that to be a special precaution or one which is unreasonable or impracticable. The risk that there was a second vehicle which the defendant could not see was foreseeable and not insignificant. I do not think the fact that, as it turned out, the rider was overtaking at speed on the kerbside lane derogates from that analysis. In the circumstances, a reasonable person turning right across two lanes of traffic would have taken the very small precaution of slowing down (to a stop if necessary) to a point where he or she could see any vehicle in either lane rather than making an assumption where the view of the second lane was blocked by a vehicle in the first.
I do not understand the passage in Dederer referred to by Basten JA to compel a different conclusion. First and foremost, the defendant owed a duty of care not to turn across the traffic until it was safe to do so. I do not think the fact that the plaintiff was not taking ordinary care for his own safety justified the approach of turning before a clear view of both lanes was available. For those reasons, I would not disturb the finding of the primary judge on liability.

Contributory negligence

It is accordingly necessary to consider the issues of contributory negligence and damages.
The defendant contends that the primary judge erred in assessing the plaintiff's contributory negligence at 50% and that this error was due to her Honour's failure to take into account that the accident was caused by the plaintiff's excessive speed. The defendant further contends that the overwhelming share of responsibility should have been apportioned to the plaintiff.
Section 5R of the Civil Liability Act provides that the principles applicable in determining whether a person has been negligent 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. The standard of care is that of a reasonable person in the position of the person who suffered harm and is to be determined on the basis of what that person knew or ought to have known at the time. [29]
In the circumstances of a motor accident, s 138 of the Motor Accidents Compensation Act 1999 (NSW) also applies. That section relevantly provides: (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage.
In Podrebersek v Australian Iron & Steel Pty Ltd, [30] the High Court set out the test at common law as follows (at 494): "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man 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." (citations omitted)
The application of that test is necessarily a complex and highly contextual task that involves finely balanced considerations. As the defendant recognised in her submissions, a finding of apportionment, if made by a judge, is "not lightly reviewed". [31] In the circumstances of the present case, I am nonetheless persuaded that this ground of appeal should be allowed and a different apportionment of liability made.
The focus of the defendant's challenge was the primary judge's determination that the plaintiff's contribution to the accident in "exceeding the speed limit by more than 30 km/h" was equal to the contribution of the defendant in failing "to slow down more significantly or indeed come to a complete stop" before executing her turn. In considering that contention it is appropriate to record that, for the reasons given by Basten JA, I agree that the primary judge should have found that the plaintiff was traveling at a speed of at least 100 kph rather than "at a speed in the vicinity of 82k/h".
The defendant noted the primary judge's finding that, if the plaintiff had been travelling at the designated speed limit of 50 kph, he could have taken action and avoided the collision by braking. [32] Indeed, as explained by Basten JA at [24], there is reason to doubt whether, at that speed, braking would have been necessary at all. The speed at which the plaintiff was travelling is accordingly of considerable significance in the apportionment of liability.
The plaintiff submits that the primary judge's apportionment of contributory negligence to him "was, if anything, excessively high". He sought to support that contention with the submission that the defendant "made no attempt to stop, or even slow down". That is inconsistent with the reasons of the primary judge. Her Honour found the defendant liable for failing to slow down "to a greater degree" or to reduce her speed "more significantly". [33]
The plaintiff also supported his contention that the apportionment of liability should not be disturbed with the submission that the defendant was driving "at an excessive speed". The submission appears to be based on the primary judge's finding that the accident was caused by the "excessive speed" of both the plaintiff and the defendant. [34] The defendant contends that her Honour erred in making that finding. However, it is clear that the primary judge did not mean that the defendant was travelling in excess of the speed limit. Her Honour found that the defendant commenced her turn at a speed of 30‑35 kph. [35] It is clear that her Honour intended to convey that the defendant was travelling at an excessive speed for the turn she was about to make. The primary judge considered that a reasonable person in the defendant's position would have slowed down to a speed of 5‑10 kph. [36]
In any event, the submission that a 50% apportionment to the defendant was, if anything, excessively high cannot be accepted in circumstances where the plaintiff was travelling grossly in excess of the speed limit and where compliance with the posted speed limit would have allowed for the accident to be avoided.
As observed by Basten JA in Gordon v Truong, [37] the precautions reasonably required of a party to a motor accident may be different in kind where the drivers were in control of different vehicles. A motorcyclist, like a pedestrian, faces a greater risk of harm relative to the driver of a car or truck. It is this harm against which the contributory negligence of the plaintiff is to be assessed. The plaintiff's wholesale disregard for his own safety in riding at a speed of at least 100 kph in an area where the designated speed limit was 50 kph and the very significant contribution of that excess speed in causing the accident justifies a substantially greater reduction in the liability of the defendant.
For those reasons, I would set aside the primary judge's determination as to contributory negligence and substitute an apportionment of 80% to the plaintiff and 20% to the defendant.

Damages

The defendant also challenges the primary judge's findings on damages and contends that the amounts awarded for past economic loss and future economic loss were excessive. Those issues were not addressed orally. The defendant was content to rely on her brief written submissions.

Past economic loss

The primary judge assessed past economic loss at $150,000. The defendant contends that, in doing so, her Honour erred in having regard to lost income rather than lost earning capacity; in accepting that the plaintiff's income would have increased by 10% every year between 2013 and 2018 and in failing to disclose her reasoning for that conclusion.
The plaintiff submits that there were two assumptions upon which the primary judge's assessment of past economic loss was based and that those assumptions were made good on the evidence before her Honour.
The first was that the plaintiff's actual income in the period between 2013 and 2018 was reflective of his residual earning capacity. The plaintiff submits that so much was established by the oral evidence of the plaintiff's father Richard Swan and the contract tiler Darren Roach. Both witnesses gave evidence that, following the accident, the plaintiff was unable to complete tiling work as quickly as he had done previously. The primary judge set out that evidence in her reasons [38] and clearly accepted it.
The second assumption was that, in the five years between the accident and the award of damages, there was significant demand for tilers in Port Macquarie and their income had increased by approximately 10% per annum. In support of that assumption, Richard Swan gave evidence that in 2012 tilers charged about $30 to $35 per square metre and that at the time of the hearing in 2018 that figure was "probably $60 to $65". Darren Roach also gave evidence that the amount charged for tiling in 2012 was "probably around [the] $40 a metre mark" and in 2018 was "probably up to $65 plus". Those estimates were set out in the judgment. [39] It is clear that the primary judge accepted that evidence and that it formed the basis for her acceptance of the plaintiff's calculation set out at [133] of the judgment (including that there would have been a 10% increase in earnings per annum but for the accident).
That evidence, which was unchallenged, provided a proper foundation for her Honour's assessment of past economic loss. I would dismiss the grounds of appeal challenging that assessment.

Future economic loss

The plaintiff sought an amount of $567,217 for future economic loss, being the difference between his actual earnings in 2018 of $915 per week and what he contended would have been his income but for the accident, being $1,597 per week, up to a retirement age of 67. The defendant initially conceded the sum of $100,000 for future economic loss but argued in final submissions that no damages should be awarded under that head. The primary judge allowed a buffer of $250,000.
The defendant contends that the amount awarded was excessive and that the primary judge erred in failing to apply the terms of s 126 of the Motor Accidents Compensation Act. The written submissions in support of those grounds were extremely brief, going little further than to note that the judge failed to articulate assumptions reflecting the terms of s 126.
Section 126 provides: 126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
The primary judge did not expressly refer to s 126. However, her Honour did approach the task of estimating future economic loss in a manner broadly reflecting the discussion of that section in the decision of this Court in Cervantes. [40] In that case Basten JA said at [33]: "The calculation of economic loss, whether in the past or for the future, involves a comparison between the actual circumstances of the claimant, as a result of the accident, and the circumstances which would probably have continued or come to pass but for the accident. On the assumption that the accident has resulted in a loss of earning capacity, the Court must also consider whether such a loss might have occurred independently of the accident."
The primary judge said at [137] that the plaintiff's entitlement to damages for future economic loss involved "the comparison between the economic benefit to the plaintiff from exercising earning capacity before the injury and the economic benefit from exercising earning capacity after the injury".
Although her Honour did not then expressly articulate the assumptions she made about the plaintiff's "most likely future circumstances but for the injury", those assumptions may readily be inferred from her Honour's reasoning. It is clear that the award was based on the assumption that the plaintiff would most likely have continued to work as a tiler in the field of work addressed in the evidence of Richard Swan and Darren Roach. The evidence suggested no basis for making any different assumption.
As to future earning capacity, the primary judge noted the plaintiff's submission that, but for the injury, he would have been earning $1,597 net per week rather than his actual income in 2018 of $915 net per week. [41] Her Honour was not satisfied that the plaintiff would have been earning as much as $1,597 net per week but accepted that, if not for the accident, his income would have been more than $915 net per week. [42]
The defendant submits that the judge failed to disclose adequate reasons for that finding. I do not accept that submission. Her Honour expressly found that the plaintiff's future earning capacity would be adversely impacted as a consequence of the accident. [43] There was ample evidence to support that finding.
It is also relevant to note in this context that the primary judge "generally" accepted the calculations provided by the plaintiff as to past income but for the injury. [44] In doing so, as already noted, her Honour implicitly accepted the evidence of Mr Swan and Mr Roach. That evidence supported two important matters. First, it established that tilers were earning approximately 60% more in 2018 than in 2012. Secondly, it established that the plaintiff displayed less earning capacity after the accident than before.
However, the calculation of future loss based on those assumptions was necessarily imprecise. As already noted, the plaintiff provided a calculation by reference to the difference between a net weekly income of $1,597 which he contended he could have earned and his actual net weekly income in 2018 of $915 per week, being a difference of $682 per week. The calculation multiplied that figure by the actuarial multiplier based on a retirement age of 67. That figure was then reduced by 15% for vicissitudes and superannuation was added. The calculation provided the figure of $567,217 as follows: "$682 x 865.9 x 85% = 501,962. Together with superannuation at 13% = $65,255."
The primary judge did not accept the projected net weekly income contended for by the plaintiff. Her Honour also rejected the posited retirement age of 67, noting the unchallenged evidence of Mr Stinson that a tiler living in country NSW would generally retire at 55.4 years of age.
Finally, it is clear that her Honour turned her mind to losses that might have occurred independently of the accident. In the judgment at [138], her Honour had regard to the experience of the past five years, saying: "On the evidence adduced, the plaintiff's claim for damages for future loss of earning capacity is somewhat difficult to assess because the plaintiff has shown a post-injury capacity for labouring work and tiling work which has provided varying income as set out in the tax returns for the years 2013 to 2018."
That implicitly invoked the reasoning in respect of post-injury capacity earlier in the judgment, where the judge had considered the prospect of "fluctuations in the industry in part influenced by the degree of development in the local area" [45] . In that context her Honour noted, in assessing future economic loss, the plaintiff's "varying income" between the years 2013 and 2018. [46]
Her Honour then considered the particular physical consequences of the accident in the context of the physical demands of the work of tilers, noting that he finds it difficult to squat and kneel for long periods.
The judge concluded that the case was one in which it was "difficult to determine the earning capacity after injury" [47] and proceeded for that reason to assess damages for future economic loss by way of a buffer, as she was entitled to do. I am not persuaded that the amount awarded was excessive. As noted by Basten JA in Cervantes at [36], the degree of uncertainty involved in such estimates renders any precision misleading.
Further, although s 126(3) of the Motor Accidents Compensation Act requires the primary judge to state the relevant percentage by which damages were adjusted, in the case of a buffer (in which case adjustment for vicissitudes is incorporated into the global assessment) this discount may be nil. Failure to state that a nil adjustment has been made does not constitute appellable error: see Penrith City Council v Parks [2004] NSWCA 201 at [5]-[6] (Giles JA); Cervantes at [39].
Although her Honour did not adopt the structured approach required by s 126, [48] I am satisfied that the judgment discloses the following assumptions upon which the award of damages was based: 1. that the plaintiff was capable of continuing to engage in his trade as a tiler; [49] 2. that there would be an adverse impact on his earning capacity due to the injuries he sustained as a result of the accident; [50] 3. that his post-injury capacity for labouring and tiling work had provided him with varying income and was difficult to assess; [51] 4. that his actual net income in 2018 was around $915 per week; [52] 5. that, but for the injury, he had the capacity to earn more than $915 net per week but less than the income of $1,597 net per week for which he contended; [53] 6. that, but for the injury, contrary to the plaintiff's contention, he would likely have retired from his work as a tiler at approximately 55 years of age based on the unchallenged evidence of Mr Stinson. [54]
The buffer of $250,000 was amply supported by those assumptions. Accordingly, I would reject the grounds of appeal challenging that part of the award.
Having been successful on the issue of liability, the plaintiff should retain the benefit of the costs order made by the primary judge. However, the defendant has been substantially successful in this Court and accordingly should have her costs of the appeal.
For those reasons, I propose the following orders: 1. Appeal allowed in part. 2. Set aside the primary judge's determination as to contributory negligence and in lieu thereof assess the contributory negligence of the plaintiff at 80%. 3. Set aside the judgment of the District Court and in lieu thereof enter judgment for the plaintiff in the amount of $122,947. 4. Order that the respondent pay the appellant's costs of the appeal.

Endnotes

Tcpt, 02/05/18, p 173(44).
Tcpt, pp 176(10), 178(40)-(45), 180(30).
Tcpt, p 175(20).
Tcpt, 30/04/18, p 26(45).
Tcpt, 01/05/18, p 110(35)-(40).
Report, 24 May 2015, par 9.3.
Judgment at [44].
Judgment at [52 (b), (c), (d), (e), (g), (i)].
Judgment at [62].
Tcpt, 01/05/18, p 151(33).
Tcpt, pp 156(1)-(25), 157(10).
Tcpt, p 162(23)-(36).
Judgment at [52(e)]
Judgment at [52(b)].
Report, 24 May 2015, par 9.2.
Report, par 9.4.
J C Trinder, Report, 18 May 2018, par 5.2.
Report, par 5.3.
Report, par 5.4.
Joint Report, photogrammetry experts, 14 September 2018, Q 7.
Judgment at [40].
Tcpt, 08/10/18, pp 11(40)-12(3).
Judgment at [41].
Tcpt, 30/04/18, p 26(30) - "I didn't grab too much of the front brake …"
(2001) 206 CLR 512; [2001] HCA 29 at [160].
(2007) 234 CLR 330; [2007] HCA 42.
Road Transport Act 2013 (NSW), s 117(2).
A "serious offence" is an offence punishable by imprisonment for 6 months or more: Civil Liability Act, s 54(3).
Civil Liability Act, s 5R(2).
[1985] HCA 34; (1985) 59 ALJR 492.
Podrebersek at [8].
Judgment at 52, [86].
Judgment at [66], [74].
Judgment at [90].
Judgment at [52] (g).
Judgment at [64]-[65].
[2014] NSWCA 97; (2016) 66 MVR 241 at [15].
Judgment at [24], [29].
Judgment at [26], [30].
Allianz v Cervantes [2012] NSWCA 244.
Judgment at [135].
Judgment at [141].
Judgment at [139].
Judgment at [133].
Judgment at [134].
Judgment at [138].
Judgment at [143].
Nominal Defendant v Livaja [2011] NSWCA 121 at [39].
Judgment at [139].
Judgment at [139].
Judgment at [138].
Judgment at [135],
Judgment at [141].
Judgment at [140]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2019

Suitors' Fund Act 1951(NSW)

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Judgment (14 paragraphs)

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