Aziz v Kidd

(b) ANALYSIS

1. Mr Kidd said he stopped the bus at the intersection. Ms Banh said he did the same, as did Mr Visagomoorthi. Ms Wilson gave no evidence of the bus stopping, although she did not expressly deny it. Mrs Aziz and Mr Zadoyan gave no evidence either way. In those circumstances, I accept Mr Kidd's evidence of stopping. He is supported by Ms Banh and Mr Visagomoorthi and not contradicted by any witness.
2. In my view, that Mr Kidd stopped at the intersection renders it less likely that Mr Kidd went through a red arrow in proceeding to turn right at the intersection. That would likely be a more memorable and deliberate action, and any evidence to the contrary by him would then be more likely knowingly false, an unlikely event.
3. Mr Kidd's evidence was not contradicted by Ms Banh. She saw Mr Kidd waiting at a red light, and after she heard the collision, she looked up and saw a red light. Given that the length of the green arrow phase was short, sufficient only to permit two buses through, and that Mr Kidd proceeded into the intersection, slowed down and stopped before the collision, and Ms Banh only observed the red light after the collision, it seems likely, or at least as likely as not, that the arrow turned red after Mr Kidd had proceeded into the intersection.
4. I was left with doubt about Ms Wilson's evidence. Although she wrongly remembered the colour of the bus, I do not regard this as particularly significant. Her evidence was not carefully given, and in some cases, nonresponsive. She had seen many accidents at that intersection and it may be that some details of this particular accident were not clearly distinguished in her mind from others. She wrongly recalled giving a statement. She ultimately conceded that she may have seen the red light after the collision. She had not been asked to recall the circumstances for some three years or more since the accident. She recalled Mrs Aziz turning right, which was not supported by any other account, although Mr Visagomoorthi's evidence referred at one point to a belief that Mrs Aziz was in the right-hand (perhaps right turning) lane.
5. Ms Wilson, to my mind, was a little more abrupt and dogmatic about the bus driver's conduct than the extent of her recollection seemed to justify. I was also not persuaded that her job involved her necessarily observing lights more than 40 metres away on the other side of the intersection, especially at the time of a collision. Her primary attention would have been on the pedestrians at the pedestrian crossing (governed by pedestrian lights) that she was managing.
6. Evidence was also tendered to establish the phasing of the lights of which Mr Visagomoorthi and Mr Zadoyan testified: that when the left turn arrow light to Herring Road was red, so also was the straight ahead light red. Neither Mr Visagomoorthi nor Mr Zadoyan had any interest in the outcome. Neither of course did Ms Wilson or Ms Banh. No doubt each was giving evidence to the best of their honest recollection. But Mr Visagomoorthi gave detailed evidence about the movement of the bus, the conduct of Mrs Aziz in the car and the traffic lights. I accept that his evidence was honestly given. The details indicate to me that his evidence is reliable and his recollection is correct. That recollection is supported by his near contemporaneous statement. Mr Zadoyan's evidence was also supported by a statement in 2012.
7. Further, as the conduct of Mr Visagomoorthi and Mr Zadoyan was governed by the lights they observed, I think they are more likely to recall the lights (at least the Herring Road arrow light) and their related activity consequent on those lights, than would Ms Wilson when her actions were not dependent on the lights on the other side of a wide intersection, but on the separate light governing the pedestrian crossing. And as I have mentioned, the relevant observations of the traffic lights made by Ms Wilson and Ms Banh seemed to occur after the collision.
8. No real challenge was made to the credit of Mr Kidd, but Mrs Aziz's credit was challenged, including by reference to the evidence she gave about her health.
9. Mrs Aziz gave evidence that she had strained a back muscle working at a retirement village in March 2008 but had recovered after a period off work. She said, "It was a couple of days. I'm not sure. I don't know. I don't remember, sorry." She said she returned to work in the retirement village for the remainder of 2008 and that she subsequently obtained a job as a receptionist, "Just to try something new." She gave evidence that she was not taking any painkillers or medication "for any pain…or anything like that in any part of [her] body" before the car accident (T40/30-35).
10. However, Australian Government Job Capacity Assessment Reports in February 2009 confirmed the back injury at work, that "[c]urrent treatment includes continued use of pain medication and hot packs", that she, "experiences difficulties with prolonged sitting, standing, walking, bending, lifting and carrying due to medical conditions," and that, "[c]hronic pain reduces capacity to work or participate in activities for prolonged periods. Will impact on performance in the workplace." A similar report in November 2009 described her condition as, "back strain, facet joint strain, mild scoliosis at the mid lumbar spine…degenerative arthrosis is present at both L5/S1 facet joints." Later, the report states, "The client last worked in 2008 in Home Care before she sustained a back injury".
11. These reports are supported by the contemporaneous medical notes of Mrs Aziz's general practitioner, Dr Lilian Popovic, which record her receiving scripts for Panadeine Forte and Mobic in 2011 as her back was, "very painful". Complaints of back pain and use of Mobic continued into 2012. Mrs Aziz had cancelled a job seeking session on 9 February 2012 on account of her back injury, and was on 29 February 2012 (in the week before the accident) "certified unfit", presumably for work.
12. In short, Mrs Aziz denied having any back problems, back pain or taking pain medication prior to the car accident. Yet the records demonstrated a long history of back pain and injury and pain medication from a 2008 work incident which was current up to the week of the car accident, and which, contrary to her evidence, had been relied upon by her as a reason that she was unable to return to work. Her claimed limited recollection of back problems offers no explanation for this inconsistency.
13. Secondly, Mrs Aziz maintains that she was looking for work at the time of the car accident, notwithstanding her back problems and significant psychological problems arising from bullying and threats at her place of work in 2008. Prior to the accident, she said she was, "applying for jobs, going to job interviews, meeting up with, I don't know what you would call her, a job assistant lady." But the documentary records show that she told Dr Popovic in December 2011 that she, "[d]oesn't feel she is ready quite yet to seek employment," and was certified unfit for work. The record of her consultation on 10 February 2012 indicates that her psychological problems were still present and records, "[c]urrently not fit to seek employment," and she was certified unfit until 10 March 2012, a few days beyond the date of the accident.
14. When asked about these matters, Mrs Aziz answered that she was unable to remember. The medical evidence indicated that Mrs Aziz's account to medical experts was similar to that given to the Court, that before the accident she had recovered from the psychological injury and was looking to find new work.
15. A third aspect of her credit in describing her health relates to her obtaining work with Storage King sometime after the accident. She was repeatedly asked whether she had told Storage King of her physical problems from the accident, and she tended to avoid giving a direct answer, stating, "They were already aware", "She already knew, yes," and "As far as I understood management was aware of it". However, her employment application, although it disclosed her "post-traumatic stress" made no mention of physical issues.
16. These matters, along with Mrs Aziz's tendency to rely upon a lack of recollection or avoid a direct answer when challenged about documents inconsistent with her evidence, caused me to be cautious about accepting her evidence. In her police statement, she described herself as being in the right‑hand lane (perhaps consistent with the evidence of Ms Banh and Mr Visagomoorthi) but that lane was required to turn right and so would not have been the appropriate lane for her to proceed westward into the intersection. Photos tendered at the trial indicated that the accident occurred in the left of the two lanes in which she could have been travelling.

(c) CONCLUSIONS REGARDING TRAFFIC LIGHTS

1. Taking all of these matters into account, I prefer the evidence of Mr Kidd that he stopped at the lights and proceeded on a green arrow. I accept that Mrs Aziz may have been distracted by a child in the rear seat of her vehicle, as Mr Visagomoorthi testified, that she was speeding, as she admitted, and that she failed to pay sufficient attention to the traffic light she was facing when it showed red as she entered the intersection. Ms Wilson's and Ms Banh's evidence were conclusions based upon what they saw after the collision.
2. I note that the phasing chart contemplates that the green arrow for the bus may be accompanied by a green arrow for the right turn lane to the M2 where there is a compulsory right turn. If that is what Mrs Aziz saw, a green arrow for the right turn lane, it nevertheless did not permit her to drive straight ahead into the intersection, but allowed her only to turn right.
3. The phasing chart indicates that at least in some instances the green arrows for right turn traffic are followed by a green light for westbound traffic on Talavera Road, a matter that might suggest that Mrs Aziz could have faced a green light at the next change of lights after Mr Kidd had entered the intersection on a green arrow. In any event, in my view, Mr Kidd did not enter the intersection on a red arrow or a red light, and that aspect of the asserted negligence must be dismissed.

(2) THE ALTERNATIVE CASE

1. Through her counsel, Mrs Aziz advanced an alternative case, submitting that Mr Kidd was negligent even if he turned on a green arrow and she went through a red light at excessive speed. Going through a green arrow gives Mr Kidd a right of way but does not absolve Mr Kidd of the need to keep a proper lookout. But the uncontradicted evidence was that he did keep a proper lookout. Indeed, in cross-examination, it was suggested to Mr Kidd that his ability to see and his observation of seeing Mrs Aziz's car for some 100 metres travelling in excess of the speed limit should have caused him to stop the bus before entering her lane or manoeuvre the bus so that he did not enter her lane.
2. I was not persuaded by this submission. This is not a case of a failure to keep a proper lookout like Turkmani v Visvalingam [2009] NSWCA 211. Rather the submission was effectively that Mr Kidd made an error of judgment in proceeding across the lane when he knew there was a car travelling at speed approaching the intersection. As was stated in Marien v Gardiner [2013] NSWCA 396 at [34]-[37], quoted in Warth v Lafsky [2014] NSWCA 94 at [55]: "[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."
3. Certainly, under s 5B of the Civil Liability Act 2002, Mr Kidd was required to take reasonable care for the safety of other road users: Marien v Gardiner at [33]. He was required to "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections" (Turkmani at [28], Warth at [56]). Here, Mr Kidd did that, observing Ms Aziz's vehicle 100 metres away, observing that she seemed to be travelling fast, growing increasingly concerned that she might not stop at the intersection.
4. The real question is whether a reasonable person would have taken precautions other than or in addition to those taken by Mr Kidd: see s 5B(1) of the Civil Liability Act 2002. In answering this question, one must bear in mind the circumstance that Mr Kidd is facing a green arrow and has the general right of way that is occasioned by that green light. It is far less significant, in my view, that Mr Kidd was turning across a lane of traffic, unlike in a situation where a driver is turning across a lane of traffic at an uncontrolled intersection: see Tran v Government Insurance Office (NSW) (1994) 20 MVR 182, Ilsley v Boots [1970] 2 NSWR 551, David v Hartman [1953] SASR 109. As the intersection in Tran was not controlled by traffic lights, the turning vehicle in that case had no general right of way over oncoming traffic. Here, Mr Kidd was not "disturbing the flow of traffic" (Tran at 183), as was the driver in Tran; rather, it was the traffic lights that had that effect on the flow of traffic.
5. Some guidance is provided, in my view, in the decision of Tromp v Liddle (1941) 41 SR(NSW) 108. The headnote relevantly notes: "A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop; and he may, unless he gets some indication to the contrary, reasonably assume that the driver on his left is advancing to serve the normal purpose of seeing whether cars are approaching on the right."
6. This is also not a case of a car completing a crossing of an intersection after lights have turned red as in Grace v Sheppard Wine Tankers Pty Ltd (1978) 18 SASR 541.
7. Mr Kidd did not observe Mrs Aziz until he had proceeded into the intersection, and Mrs Aziz was 100 metres away. No criticism was or can be directed at him for entering the intersection in accordance with the green arrow. When he had travelled 15 metres into the intersection and then observed Mrs Aziz, it remained reasonable for him, given that she was 100 metres away, to assume that she would stop on the red light and, thus, he could proceed across the oncoming lanes. But as she came closer, and as she did not then reduce her speed, his concerns heightened, he then needed to consider the possibility that she would not stop. He slowed down and stopped, leaving enough room for her to pass. He was driving a bus containing passengers, a vehicle which did not permit, at least not without the real possibility of injury to passengers, Mr Kidd to slam on the brakes or to make a very sharp turn to the left to lessen the encroachment into the lane of oncoming traffic. Either step was, in my view, less reasonable and appropriate than the one he took.
8. A third alternative, to proceed across the intersection, would have increased the risk of serious injury to the occupants of the bus and the car by resulting in a collision directly into the side of the bus, rather than the glancing blow to the front of the bus that occurred.
9. Mr Kidd's actions were not only reasonable, but potentially saved Mrs Aziz and her children and his bus passengers from suffering serious injuries. That he did stop does not establish that he reasonably could or should have stopped earlier. He was attentive, carefully considering his options. I can find no fault or unreasonableness in the decisions he made at that time. In these circumstances, I can find no negligence in Mr Kidd.
10. Mrs Aziz submitted that a different action could have avoided the collision. With the benefit of hindsight, that is probably true. But retrospectively determining the best course is not the test of negligence: see Warth at [34]. To do so would render all parties liable in the event of a collision at an intersection for surely one can hypothesise ways that either car can avoid the collision. That is not the test of liability for negligence. Relevantly, here, it is to consider whether a reasonable person would have taken the precautions taken by Mr Kidd or other additional precautions. In my view, Mr Kidd at all times acted reasonably.
11. Whilst it is unnecessary to make a finding about contributory negligence, as no negligence has been found, I should make some comments as the matter was addressed by the parties.
12. If I am wrong in rejecting negligence by Mr Kidd, it seems to me that in the circumstances where he had a green light in his favour and where Mrs Aziz was speeding, was not keeping a proper lookout and went through a red light, that this may well be a case for the application of s 5S of the Civil Liability Act 2002, where Mrs Aziz's level of responsibility for damages is 100%, as the defendant submitted.
13. On the other hand, if negligence was found in Mr Kidd, any comparison of the relative levels of culpability would suggest that he bear some responsibility: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492, 495. I also find it difficult to see how Mrs Aziz's position is worsened because she was sober, as the defendant submitted in relying upon Mackenzie v The Nominal Defendant [2005] NSWCA 180.
14. In any event, I find no negligence and I do not propose to assume some level of negligence and assess what level of contributory negligence would have been involved, or what would have been a fair and equitable amount of responsibility, other than to say that Mrs Aziz's responsibility for the accident must necessarily have been more substantial, and probably far more substantial, than Mr Kidd's.

C. DAMAGES

1. In case Mrs Aziz is entitled to damages, I proceed to make findings on damages.
2. Mrs Aziz's evidence on damages is relevant to her credit on liability, and I have taken it into account in rejecting her account of proceeding through the intersection on a green light.
3. Mrs Aziz has an agreed amount of past out of pocket expenses of $3,317.05. The defendant submits a further $1,500 buffer should be allowed whereas Mrs Aziz suggests an amount of $24,165 based on $25 a week. However, in the past, Mrs Aziz has incurred about $14 a week in the period from the accident to the trial, including the initial higher expenses in the period immediately following the accident. I would allow an amount of $5,000 as a buffer.
4. Mrs Aziz claimed past and future economic loss of $150 a week, totalling, with superannuation added, about $170,000. In my view, this loss is not established at all. Mrs Aziz had not worked for about four years before the accident. She had ceased work initially because of a back injury suffered at work, which was compounded by post-traumatic stress resulting from bullying and intimidation at work. As indicated in my credit findings earlier, these conditions persisted up to and beyond the accident, Mrs Aziz being certified before the accident as being unfit for work until a date after the accident.
5. In my view, her pre-existing complaints were the reason why Mrs Aziz did not return to work until about October 2014. She made no mention of a back problem in her application for employment at Storage King. Since January 2015 she has worked for Budget Rental, often doing overtime (contrary to her evidence). I find that she has suffered no loss of earning capacity as a result of the accident. I do not accept her evidence that she would have worked longer hours than she now currently works but for the accident, which in any event, seems to be evidence which is inadmissible under s 5D(3)(b) of the Civil Liability Act 2002.
6. On the same basis, I am not satisfied of any need for commercial care of two hours per week as a result of the accident. Her evidence was that she is now assisted by her partner performing or helping to perform some domestic tasks. But I am not satisfied that she is likely to engage commercial care to assist given that she never has in the past. On occasions recently she has worked substantial overtime and received significant additional income which, given the extended hours she worked, would ordinarily have increased the need for domestic assistance and provided some resources to procure it. But she never availed herself of that: see Miller v Galderisi [2009] NSWCA 353 at [7] to [11].
7. In any event, the disabilities Mrs Aziz faces are largely due to her pre-existing conditions identified above. Though the defendant bears the onus of disentangling the impact of pre-existing conditions from damage arising from negligence, I am satisfied that so far as the need for future care or reduced earning capacity is concerned, the disabilities arising from the accident are minimal. A buffer may be appropriate for possible future circumstances which have not currently occurred, but I would not allow an amount in excess of $10,000 as a buffer for that potential future circumstance for care and reduced earning capacity arising from the accident.
8. Accordingly, I would calculate damages to be $18,317.05, an amount that would need to be substantially reduced for contributory negligence if liability were established.

D. ORDERS

1. The orders of the Court are: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs. 3. Stay entry of order (2) for 2 weeks, and, if an application is made in respect of a varied costs order, stay entry of order (2) until that application is determined.

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