Berwick v Clark [2018] QSC 116

[1] On 9 August 2012, shortly after 6.50 pm, the plaintiff was driving his Mazda 6 northbound on Lacey Road, Carseldine. At the same time, the first defendant was driving home, south along Lacey Road, intending to turn across the northbound lane into Raynbird Place. As she drove across the intersection, her Mazda 2 collided with the plaintiff's Mazda 6. The Mazda 6 hit a pole and the plaintiff suffered catastrophic injuries. The Mazda 2 spun backwards and the first defendant was severely injured.

[2] The plaintiff alleges that the first defendant negligently drove her car across his path by:

• failing to keep a proper lookout in circumstances in which she was required to exercise "the high degree of vigilance"[1] required by a driver intending to turn across the path of an oncoming vehicle; and
• failing to yield way to the plaintiff's car, in breach of Regulation 72(5) of the Transport Operations (Road Use Management - Road Rules) Regulations 2009.

[3] The second defendant, the compulsory insurer of the Mazda 2, defends the claim and says the first defendant was not negligent because the Mazda 6 was not able to be observed by her. It says the Mazda 6 was travelling in dark conditions without illuminated headlights at an excessive speed. It also alleges contributory negligence on the basis that the plaintiff was driving:

• on a dark, moonless night with limited street lighting, without his headlights illuminated;
• at a dangerously excessive speed; and
• failed to keep a proper lookout, observe the Mazda 2 and lower his speed.

[4] The plaintiff's multiple injuries included very severe head injuries. He is permanently disabled. He sustained a 97 per cent whole person impairment as a consequence of his head injuries and cognitive deficit. He has spastic quadriparesis, various orthopaedic injuries and is confined to a wheelchair. He has no verbal communication ability. The quantum of his claim was compromised on the first morning of trial. Because of his cognitive deficits the plaintiff was not able to give evidence about the circumstances of the accident.

[5] He called witnesses, including an eye witness, Ms Iose, whose car was stopped at the

T-shaped intersection of Raynbird Place and Lacey Road. She looked to her right and saw a vehicle with its headlights on travelling north. She looked to her left and saw a car, which must have been the Mazda 2, travelling south in the turning lane with its indicator on. Ms Iose then looked down to change a cassette tape and heard the sound of the collision between the Mazda 6 and the Mazda 2.

[6] The first defendant gave evidence of her approach to the intersection and effecting the turn. She saw the headlights of a car approaching and thought that it was a long way off, and far enough to allow her to make the turn.

• Did Ms Iose see the Mazda 6 headlights?
• Did the first defendant see the Mazda 6 headlights?
• If they did not see the Mazda 6 headlights, then which vehicle's headlights did they see?

The last question raises what I will describe as the second defendant's three-car theory: that Ms Iose saw the headlights of a car in front of the Mazda 6, and the first defendant saw the headlights of a car following it. The three-car theory, with two cars with their headlights on, has to explain how Ms Iose and the first defendant each recall seeing only one northbound car with its lights on. Naturally, the plaintiff's submissions reject the three-car theory, and contend that it is far more probable that Ms Iose and the first defendant saw the headlights of the same car, and that the first defendant simply misjudged matters and turned into the path of the Mazda 6.

The first defendant's case that the Mazda 6's headlights were off before the collision is supported by the fact that accident investigators found the headlight switch at the end of the indicator column in an off position.

The plaintiff's case that the headlights were on relies on:

(a) the independent observations of Ms Iose and the first defendant of a northbound vehicle with its lights on immediately before the collision; and

(b) uncontradicted evidence that the Mazda 6 headlights were on when it left Red Hill on the plaintiff's journey home that evening.

The plaintiff submits that explanations exist as to why the light switch was found in an off position. One is that the collision between the cars or the Mazda 6's impact with the utility pole resulted in the switch being turned off. Another is that the lug on the light switch was knocked by heavy equipment used to cut open the vehicle and rescue the plaintiff, whose feet were trapped in the footwell of the vehicle.

1. What was the speed and direction of the Mazda 2 immediately before the collision?

This issue is relevant to the observations of the first defendant immediately before the collision, the primary issues of negligence and contributory negligence and to the next factual issue.

1. What was the speed and direction of the Mazda 6 immediately before the collision?

Neither Ms Iose nor the first defendant gave a precise estimate of the speed of the northbound car. Ms Iose told a police investigator on 22 August 2012 that she could not judge at what speed the northbound car was travelling because she could only see the headlights. She gave a written statement on 26 June 2013 which estimated the car's speed at between 60 and 70 kilometres per hour. Her evidence at trial was that it was "normal, like 60 something".

Any assessment of the speed of the Mazda 6 depends upon:

(a) resolution of the headlights issue;

(b) assessment of the evidence of eye witnesses about speed, distance and timing;

(c) "expert evidence"; and

(d) any inferences that can reasonably be drawn from the extent of damage to the vehicles.

[8] For reasons to be given, the "expert reports", to the extent they contain admissible opinion evidence, are of slight probative value. Any expert estimate or calculation of the pre-accident speed of the Mazda 6 depends upon numerous assumptions, including:

• (a) the pole impact speed of the Mazda 6;
• (b) the approach speed of the Mazda 2;
• (c) the way in which the Mazda 6 travelled between the point of impact and its impact with the kerb and nearby pole on the corner of Lacey Road and Raynbird Place, including for how long it was airborne or skidded before its left wheels hit the kerb and the car body hit the pole;
• (d) the way in which the Mazda 2 travelled after impact, including the way in which its shell and its dislodged engine travelled to their respective resting points;
• (e) the level of friction that was achieved after impact between the road surface and the Mazda 6, the Mazda 2 shell or tyres and the Mazda 2 engine.

[9] Mr Keramidas, who provided numerous reports to the second defendant, made a number of assumptions about these and other matters, some of which are unsupported by evidence. Leaving aside concerns about Mr Keramidas' reports not displaying the qualities of detachment and objectivity to be expected of an expert in such a case, and the unstated or inadequately explained basis for certain assumptions he made, his calculations of the speed of the Mazda 6 were based on many assumptions. An accident reconstruction opinion which depends on so many assumptions and variables may render the opinion unreliable and inadmissible.[2]

[10] The parties were content for me to not make a ruling on the admissibility of Mr Keramidas' reports, responsive reports of Dr Gilmore, their joint expert report and parts of a Queensland Police Service crash analysis report in which opinions were expressed, and make such use of them as I considered appropriate.

[11] The calculations or estimates arrived at by Mr Keramidas depend upon momentum equations to arrive at the pre-impact speed of the Mazda 6. The probative value of any such opinion depends on the assumptions that are made and, in the absence of reliable eye witness evidence or definitive physical evidence about these variables, the speed of the Mazda 6 cannot be reliably estimated by an expert using such equations. For example, the equations used by Mr Keramidas depended upon an assumption being made about the post-impact speed of the Mazda 6 as it hit the pole. I agree with Dr Gilmore's analysis that many of the assumptions made by Mr Keramidas are speculative and not founded on evidence. The police crash analysis report did not use such a momentum approach to calculate the impact speeds of both vehicles, recognising the difficulty of using such an approach due to the secondary collision of the Mazda 6 with the pole.

[14] Before turning to the evidence of witnesses about their observations, it is appropriate to note the inference which is naturally drawn from photographs and other evidence of the aftermath of the collision. The Mazda 6 has been described as ending up "wrapped around" the pole. It slowly rotated and slid at some stage after the collision so that its left wheels hit the kerb on the north-western corner of the intersection, the car tilted and hit the nearby pole. It did not hit the pole in a direct sideways movement. It was not a side impact into the door area of the kind displayed in simulated tests. Instead, the Mazda 6 hit the pole at an angle causing its upper left-hand side and roof to crumble. The momentum of the front part of the car, including its engine, caused the body of the car to bend extensively around the pole.

[15] The impression gained from looking at photographs of the Mazda 6 after the collision is that it must have been travelling at a high speed. However, just how high that speed was, and whether it vastly exceeded the speed limit of 70 kilometres per hour, cannot be decided on the basis of impressions or guesses. It depends upon an assessment of the evidence of eye witnesses (including the absence of any eye witness evidence that the car was travelling at an excessively high speed), the drawing of reasonable inferences from the damage sustained to each vehicle and what can be ascertained from the accident scene about the post-collision movements of the cars. The expert evidence is useful in identifying the range of factors that need to be considered in arriving at any estimate of the pre-accident speed of the Mazda 6. There is a need for caution in reaching any conclusion about speed on the basis of an intuitive response to photographs of the Mazda 6 after the collision that, to sustain that much damage, the car must have been going at least 90 kilometres per hour or some other speed. Consideration of the evidence, including the fact that the point of impact on the nearby pole was in a vulnerable part of the body of the Mazda 6, leads to the obvious conclusion that this was a high speed accident. What speed depends on an assessment of all of the admissible evidence and the drawing of reasonable inferences. It begins with the eye witness evidence.

[16] The plaintiff grew up on a farming property near Dalby, completed his secondary studies and at the time of the accident was enrolled in a Bachelor of Business degree. The accident occurred just after his nineteenth birthday. He was a talented footballer and was contracted to play with the Brisbane Broncos in its under 20s side. By August 2012 he was living at Bracken Ridge, an outer suburb on Brisbane's north. On the afternoon of

9 August 2012 he attended a training session at the Brisbane Broncos training ground at Red Hill. After a recovery session he and some teammates left the training area and walked to the carpark, intending to leave in their respective cars. One of his friends,

Mr Cameron Cullen, was with him.

[17] Mr Cullen's uncontested evidence was that he, Daniel Alvaro and the plaintiff left the spa area and walked to the carpark together. The plaintiff had parked his Mazda 6 about ten metres from the door and Mr Cullen had parked his car further away towards the exit of the carpark. The area where Mr Cullen had parked his car was dimly lit. The plaintiff and Mr Cullen went to their respective vehicles. The plaintiff then drove his vehicle to where Mr Cullen was standing, and pulled up for a chat. Mr Cullen observed the Mazda 6's approach with its headlights illuminated. It was dark and the headlights shone in his face. The Mazda 6 came to a halt and Mr Cullen spoke to the plaintiff through the driver's side window. The plaintiff then drove off along a long, thin exit lane. Mr Cullen was not cross-examined about these matters. He was an impressive witness with a good recollection of detail, such as the hat the plaintiff was wearing as he left. The second defendant does not contest his evidence. I find that the Mazda 6's headlights were on when the plaintiff started his journey north.

[18] That journey started from the training ground at Fulcher Road, Red Hill. The plaintiff had an established route for journeys between the Broncos training ground and his home. Another teammate, Mr Kodi Nikorima, lived in the same area. In 2012, after

Mr Nikorima joined the Broncos, they would often share the driving to and from the Broncos' ground. At other times one of them might have another commitment, such as attending lectures. That was the case on 9 August 2012 when Mr Nikorima drove his own car. Mr Nikorima's evidence about the times when he and the plaintiff drove together was that they would always drive the same route between Red Hill and Bracken Ridge. Mr Nikorima's evidence was that after leaving Red Hill they would take some side streets by way of a shortcut, and then travel on major roads, including Maundrell Terrace which joins Gympie Road near the Aspley Hyperdome. They would then head north along Gympie Road, turn right into Beams Road at Carseldine and then turn left onto Lacey Road.

[26] Ms Iose is of Samoan heritage and had lived in Australia for a few years at the date of the accident. At that time she worked as a domestic cleaner at an aged care home. On

9 August 2012 she was on her way home from work and drove along Raynbird Place to its intersection with Lacey Road. She stopped at the T junction where she was required to give way. It is uncontroversial that:

• she stopped her car;
• she looked to her right and saw a car with headlights on travelling north;
• she then looked to her left and saw possibly two cars, one of which was in the vicinity of the intersection where there is a turning lane, and that car had its indicator on;
• having seen the two cars approaching the intersection, she looked down to change a tape in a cassette player and heard a loud bang;
• she looked up immediately and saw the Mazda 6 pass close in front of her and crash into the nearby utility pole;
• at some point she reversed her car back up Raynbird Place and remained in it, traumatised; and
• some time later she spoke to a bystander and asked him to call 000 because she did not have a telephone with her to do so.

[27] Ms Iose is a mature-aged woman and she required the assistance of an interpreter when giving evidence. She was interviewed by Senior Constable Bach without the assistance of an interpreter on 22 August 2012. The written record of that interview is not in the form of direct quotations of questions and answers.[4] On 26 June 2013 Ms Iose signed a statement in response to a request by the plaintiff's lawyers.[5] Ms Iose was obviously traumatised on the night of the accident. She returned to the vicinity of the accident scene in the following days. Shortly before the trial she attended the scene again in the company of the plaintiff's legal advisers.

[28] Some inconsistencies emerged between the police notebook statement of 22 August 2012, the one-page statement dated 26 June 2013 and her evidence at trial. The 2012 and 2013 statements give the impression that she only saw the northbound vehicle once and that was when it was a distance of about 40 metres from her. The plaintiff's case is that neither statement explored the issue of when she saw the northbound car, and this deficiency arises from her English language limitations and the fact that she did not have the assistance of an interpreter.

"I look at the car still on the normal, like, 60 something."

Ms Iose did not give any evidence of another car with headlights following the car which she saw to her right. She saw only one car with headlights on travelling north. Her evidence, both in statement form and in her oral evidence, puts this car in close proximity in place and time to the southbound car that was indicating. In other words, she saw the northbound car at about the same time as she saw what must have been the Mazda 2 preparing to make the turn.

[31] Ms Iose said that after hearing the bang and looking up and seeing smoke, she did not see any cars on the road.

[32] She was tested under cross-examination about the evidence she gave in-chief about two occasions when she looked down to the tape and whether she saw the car on her right twice. She agreed that she saw the car on her right, then saw the car on her left, then looked down to change the tape and that is when she heard the bang of the collision. When asked about when her memory of having looked down twice came to her, she said that sometimes when she stayed at home her memory came back to her, but she was not able to recall when she first remembered looking down twice.

[33] As to her recollection of the speed at which the northbound car was travelling, and what was recorded about that matter in the police notebook on 22 August 2012, she stated it was the best answer she could give to the police at the time. She later explained with the benefit of the interpreter that, when she spoke to the police on 22 August 2012, she was "still sort of traumatised by what happened" and that she did not think very clearly when the police called.

[34] In re-examination she said that she could not now recall all the questions that the police asked that day, but said that the police had not asked her how many times she looked at the tape player or how many times she looked at the car coming from her right. Instead, her recollection is that she was asked by police if she checked the right side and checked the left side.

[35] Ms Iose impressed me as an honest witness. My assessment of her reliability must take account of her limitations with the English language and the fact that, particularly in 2012, she would not have been likely to give a fluent or full account to police of what happened. Instead, without the aid of an interpreter, her recollection would have needed to have been prompted by specific questions. Senior Constable Bach could not recall the circumstance of the interview and accepted that the police notebook was not a verbatim account of Ms Iose's words. For example, where it records, "I couldn't judge what speed the car was coming at because I could only see the headlights", this was not necessarily Ms Iose's words. It may have been the substance of an affirmative response to a question along those lines. I doubt whether Ms Iose can recall much about the detail of the police interview and I doubt whether she can now specifically recall whether she was asked by police how many times she looked at the tape player. Unfortunately, the notebook is not in the form of questions and answers and there is no audio recording of the interview. I conclude that Ms Iose had difficulty in giving a full and fluent account of matters in that police interview. She had difficulty with spoken English and I accept her evidence that she was still fairly traumatised by what she had seen. She did not have the benefit of an interpreter.

A reasonable inference from her observations is that the collision was between the car which she had just seen to her right and the Mazda 2. This inference is not undermined by the imprecision in her estimates of distance in which she gave estimates of 40, 30 and 20 metres. The relevant point is that both cars were fairly close to the intersection, but the Mazda 2 was closer than the northbound car.

[43] Other significant matters emerge from Ms Iose's evidence. She did not give evidence of seeing two cars with headlights on to her right. If there had been then, given the position at which she stopped her car so as to comply with the give way sign and to look right, she probably would have done so. The road to her right was flat and straight. According to the second defendant's three-car theory, there must have been some distance between the first and second illuminated car to Ms Iose's right.

[44] Next, Ms Iose did not report to police that the only car which she saw to her right was speeding. She told police that she could not judge its speed, but there is no evidence that she was asked specifically whether it was going very fast or very slow. If she had gained such an impression one would have expected that matter to be elicited, notwithstanding the difficulties under which she came to be interviewed. It is sufficient to conclude for present purposes that if the car she saw to her right was the Mazda 6, she does not say that it was travelling well in excess of the speed limit and at the kind of speeds for which the second defendant contends. In fact, her evidence at trial was that it was travelling at a normal speed.

[45] Having regard to the contents of the police statement, her June 2013 statement and her evidence at trial, I conclude that Ms Iose was not in a position to make any precise estimate of the speed of the car which she saw. However, she did not gain the impression from the speed at which it approached that it was travelling well in excess of the speed limit. The limitations upon her ability to precisely assess speed in the circumstances, and the absence of any explanation about how she was able to estimate the speed at 60 or 70 kilometres per hour, disincline me to rely upon her June 2013 statement or her evidence at trial to conclude that the Mazda 6 was travelling at a normal speed or at about the speed limit of 70 kilometres per hour. However, her statements to the police and her later statements do not support the conclusion that the Mazda 6 was travelling at a dangerous speed in excess of 100 kilometres per hour. If it had been, Ms Iose probably would have been in a position to observe that, even if she could not put a precise speed upon what she observed.

[46] In summary, I accept Ms Iose's evidence that she saw the car to her right and the car to her left a few seconds before the collision. A reasonable inference to be drawn from her evidence is that the two cars which she saw close to the intersection collided with each other.

[47] The first defendant, Ms Clark, was born in Brazil in 1975 and acquired her driver's licence when she was 19 or 20. By August 2012 she had been living in Australia for several years and was an experienced driver. She and her husband lived at Carseldine and she would drive along Lacey Road going to or from her home almost every day. She was used to driving along Lacey Road at both day and night.

[48] On the evening of 9 August 2012 she was returning home, having been to the supermarket and to a petrol station. She drove southbound along Lacey Road and, although she could not recall her precise speed, thought that she would have been doing around 60 kilometres per hour. Her usual practice in preparing to turn right into Raynbird Place would be to decelerate and change down through the gears. If she did not have to give way to oncoming cars she would make the turn at "around 20 kilometres an hour, probably less".

[49] The evidence of the first defendant's recollection of what she did and what she observed on the evening on 9 August 2012 is located in three sources. The first is an interview with Senior Constable Bach on 7 September 2012, which was recorded at her home. The recording is Exhibit 4 and a transcript of it became Exhibit 5. The second source is a statement which she gave to an investigator appointed by the second defendant, which was signed by her on 7 February 2013. The third is her evidence at trial. Counsel for the plaintiff points to alleged inconsistencies between her statements. In assessing the first defendant's evidence I have listened to Exhibit 4, and had to consider the accuracy of parts of the trial transcript by listening, at the parties' request, to some parts of the digitally recorded trial evidence. Simply reading the transcript of her police interview on

7 September 2012 and the trial transcript does not capture the manner in which the first defendant speaks. Although she displayed a good command of English, it is not her first language. The punctuation of Exhibit 5 and the punctuation of parts of the trial transcript do not always capture her intonation or the meaning which her words convey to a listener. She struck me as an intelligent woman who attempted to answer the questions asked of her to the best of her ability.

[50] The issues in contention between the parties in relation to her evidence include:

1. The position she was in when she first saw the headlights of a vehicle coming in the opposite direction;
2. How far away from her the lights were when she first saw them;
3. How far they were away when she committed herself to making the turn, and as she began to effect the turn into Raynbird Place; and
4. The speed of the Mazda 2.

[51] The first defendant fairly conceded that her recollection of matters was better when she spoke to police on 7 September 2012 compared to when she gave evidence almost six years after the events in question. Uncontentious matters in her record of interview are that the weather was fine, that she had "clear vision" and could see there was only one car coming in the opposite direction. On 7 September 2012 she could not remember if there were any cars behind her but could remember that "the traffic was really good, it was calm, I basically only remember that car there maybe there was more but I don't remember". She confirmed in her evidence at the trial that she did not remember seeing any vehicle passing her going in the opposite direction as she came towards the turn lane.

[52] After preliminary discussions on 7 September 2012 about her background, she was asked by Senior Constable Bach what she could remember. She gave the following response:

"Yep, I went to supermarket, I was coming to Lacey Road. I just I remember that the traffic, the traffic was normal, was really quiet. I remember the one car coming in the opposite direction. I think [it] was the only one that I saw was everything okay in my judgement. The car was really far and I think [I] remember that I actually was turning. ..."[8]

Prompted by her sister who was in attendance at the interview, she then refers to the white airbag that came into her face.

[53] Shortly later in the interview Senior Constable Bach asked the first defendant whether she stopped before she turned right, to which the first defendant responded:

"I just remember coming and giving sign you know to turn and I remember a car really far in my judgment was really far away and then I think I remember you know going, turning ..."

The first defendant could not be sure whether she stopped or only slowed down before making the right turn.

[54] She was then asked to explain what she meant when she said that the other car was "far away". She was asked whether she could give a distance in metres about how far away it was, or pick a spot on the road "where it might have been when you first saw it". The first defendant replied that maybe she could. She was prompted to give an estimate in terms of metres and Senior Constable Bach asked her whether she knew the size of a 50 metre Olympic-size pool. The first defendant did not reply to that question and instead asked Senior Constable Bach "how much would it be from here to let's say there?", and it is apparent that she was referring to a fence. Senior Constable Bach told her that it was about 30 metres or so. The first defendant's sister volunteered a figure of 60 metres and offered to step it out. Senior Constable Bach (seemingly in reference to the fence) asked, "So that far away?", to which the first defendant responded: "Yeah maybe something like that or even farther that". Senior Constable Bach asked "Further away?", to which the first defendant responded:

"Because I just remember this you know his small lights and was really far and in my mind ..."

[55] The discussion then turned to the lights and the first defendant said she remembered seeing "two really whole lights and then some small lights". She was asked whether these small lights would have been fog lights on the car, to which the first defendant said that she could not really remember. Later, the first defendant said "I just remember the car really far away".

[56] As to the first contentious issues, namely the position the first defendant was in when she first saw the headlights coming in the opposite direction, her initial substantive answer in the police interview tends to suggest that she first saw the lights when she started turning, however, the matter is far from clear. In her witness statement dated 7 February 2013, she said she could not recall whether there were any cars in front of her when she put her indicators on and could not recall seeing any cars with any headlights coming towards her. Relevantly, her statement continued:

"As I was turning I recall seeing lights coming towards me in my direction. I recall thinking it was a really big car and I had plenty of time to turn. I am not sure but I think that I had just started to turn right to when I saw the car lights and I thought I had plenty of time to turn." (emphasis added)

The only thing that she could remember was that the other car's lights were "very small and low down". The words which I have emphasised suggest that the first defendant only saw the lights of the oncoming vehicle as she was turning. Later in the statement she said:

"I can't remember how long it was between when I saw the headlights and when [the] explosion happened but the lights seemed to be a long way away and I didn't see nothing coming and then the bang."

[57] In summary, neither in her police interview nor in her statement to the second defendant's investigator did the first defendant clearly state the position she was in when she first saw the headlights coming in the opposite direction, or how far those lights were away when she first saw them. The plaintiff places particular reliance on the discussion in the police interview in which an attempt was made to judge the distance by reference to a fence at her home. Reference may be made to the survey plan and to photographs of the house where the interview took place in order to conclude that the fence which was pointed out was not that far away. Senior Constable Bach, who might be regarded as a good estimator of distance given her role as a forensic crash investigator, thought it was about 30 metres. The second defendant submits that the relevant exchange may have been about the length of an Olympic swimming pool and that the questioning introduced "a potentially culturally irrelevant concept" to the first defendant which served as a distraction to the inquiry being made. In my view, the questions and answers which related to the fence were not an attempt to arrive at the length of a 50 metre Olympic swimming pool. In any event, the exchanges about the distance to the fence were inconclusive. It seems that the first defendant was attempting to explain how far away the car was when she first saw it, and her answers tended to suggest that it was something like the distance to the fence or even further away. The end result is that the first defendant could not give to the police any reliable estimate of how far away the headlights of the approaching car were when she first saw them.

[58] Significantly, in her written statement dated 7 February 2013, the first defendant did not venture an estimate in terms of metres of how far away the lights were when she first saw them, or how far away they were as she was turning. She did not venture even a general estimate of whether they were more or less than 50 metres away from her at that time.

[59] In her evidence at the trial the first defendant said that she could "remember seeing the lights quite far away". Again, she did not venture an estimate in terms of metres or a place on the road by reference to photographs taken of Lacey Road. Instead, and whilst explaining that it "was a while ago", she said that the lights were "really far in the distance" and "a good distance that I could actually turn". In her evidence-in-chief she said that she did not feel "in a rush to cross or anything", and that it was "just really far and I could easily turn".

"Okay. All right. The only car you saw then was the headlights that you saw, which you describe as far away?Yes.

Okay. And your impression from seeing those headlights was that it was a big car far away?Yes, because the lights were quite separate, so I would say was, you know, a bigger car. It was - because it was dark, I couldn't see much of the car, because the lights were quite separate. So it was a bigger car, but there was - again, was six years ago, you know.

Yes. All right. But you're describing now seeing two distinct headlights?Yes. That is what I remember that I saw; the lights. Yes.

All right. And you saw a separation distance between those headlights?Yes.

But it might've been a small car much closer to you?That is not what I saw.

That's not what you understood from what you saw, is it?I - what I remember today - there's a lot of things that, again, I forgot, because a while ago, but what I remember was there was some lights; it was really far away, okay. I don't know how many metres, but was really far, and I was confident to go. I didn't hesitate that, you know, oh I should just rush now, you know, I have time if I go quickly. I just remember that there was some lights, you know, far away. That's what I saw.

Okay. By "far away", you mean far enough away that you had time to turn?Yes.

All right. By "far away", you're not suggesting these lights were hundreds of metres down the road?I don't know how many metres. Again, it was a long time ago. I just - the only thing that I remember now from that moment, you know, it is the lights. They were far away and it was okay for me to drive. It was six years ago."

[61] Leaving aside their differences over the proper punctuation of the transcript, the parties disagree about the proper interpretation of what the first defendant said. I did not understand the first defendant's words, when she said them or when I listened to them again from the recording of her evidence, as meaning that she thought that she should rush or that she would only have time if she went quickly. On the contrary, the meaning which I apprehend she was intending to convey is that she did not think those things. Incidentally, this accords with her evidence-in-chief in which she said that she did not feel that she had to rush and thought that she could easily turn.

[62] Later in her cross-examination the first defendant seemed to accept that if a car is a long way off with its headlights on then one cannot distinguish between the two headlights. However, her response was not altogether clear. Counsel for the plaintiff took the first defendant to her earlier statements and suggested to her that her observation of the oncoming headlights occurred as she was turning her car into Raynbird Place. The first defendant disagreed and said: "I saw the lights before". However, she could not say how long before. She accepted that what she said appeared in the transcript of the police interview, but sought to explain that she made a decision to turn and started to turn. She said that paragraph 14 of her February 2013 statement was wrong insofar as it suggested that she saw the light coming towards her only as she was turning. However, she accepted that her recollection in 2012 and 2013 was better than her recollection at the trial.

[63] I turn to assess the first defendant's evidence about the three issues which I earlier identified. The first is the first defendant's position when she first saw the headlights of the car coming in the opposite direction. Her statements to police and to the insurance investigator in 2012 and 2013 are open to the interpretation that she first saw the headlights only when she was actually turning. However, they are ambiguous since "as I was turning" may mean at a stage when she was in the turning lane with her indicator on.

[64] As to the related question of how far the lights were from her when she first saw them, the first defendant was unable to venture a good estimate of distance when asked that direct question in her police interview. The exchange to which I have earlier referred suggests that it was something like the distance to her fence or even further away.

[70] A critical issue is whether Ms Iose and the first defendant saw the headlights of the same northbound car. If so, was it the Mazda 6?

[71] As to whether Ms Iose saw the Mazda 6 headlights, as summarised at [46], she saw the car to her right and the car to her left a few seconds before the collision. A reasonable inference to be drawn from her evidence is that the two cars which she saw close to the intersection collided with each other. This inference does not depend on the accuracy of her estimates of distances of 40, 30 or 20 metres. It arises because each car was relatively close to the intersection at the same time and no other car travelling north was observed by her. Given the imprecision of the first defendant's evidence about how far away the oncoming car was, her evidence is not necessarily inconsistent with the conclusion that the headlights which she saw were those of the Mazda 6, especially if she misjudged its distance from the intersection or its speed.

[72] The second defendant submits that the first defendant observed a lit vehicle that was further away than the Mazda 6, though it is not possible to say precisely how far. It raises the possibility that the other car may have been Mr Simmons' Land Rover, a car whose driver came to the scene of the accident and spoke to Ms Iose, or a car that may have turned right into Somerset Drive, 200 metres south of the intersection with Raynbird Place.

[73] As to the possibility that it was Mr Simmons' car, his evidence, which I accept, is that he had only travelled about 60 or 80 metres along Lacey Road from the Beams Road corner when he saw the light of the collision. According to his measurement he would have been about 1.2 kilometres away from the collision. According to the second defendant, the distance to the intersection from Beams Road is 1.03 kilometres, when scaled from a map. In any case, Mr Simmons was approximately a kilometre away from the collision. The first defendant's evidence that she could see the separate headlights of the oncoming car makes it unlikely that she saw the separate headlights of Mr Simmons' car from that distance. The first defendant's description in her interview with police of seeing "two really whole lights" and then some other lights (which were not fog lights) does not assist much in the identification of the car which she saw. The model of Land Rover which Mr Simmons drove is depicted in Exhibits 22 and 23 and it has standard lights. The Mazda 6 had a configuration of lights on its front, as depicted in Exhibit 18. Neither car appears to have lights "on top".

The speed and direction of the Mazda 2 immediately before the collision

[97] The first defendant was unable to recall if she stopped or only slowed before commencing to turn into the intersection. It is reasonable to assume that she slowed to substantially less than 20 kilometres per hour before deciding to turn, and then began to accelerate. The first defendant cannot say what speed she had reached at the point of impact. However, she did not perceive a need to accelerate rapidly to avoid a collision, and therefore the speed of the Mazda 2 at the point of impact was probably less than 20 kilometres per hour. No finding about its precise speed can be reached. Its probable speed was between 10 kilometres and 20 kilometres per hour.

[98] The point of impact between the Mazda 2 and the Mazda 6 in the northbound lane of Lacey Road is depicted in photograph 4 of Exhibit 21 by reference to the gouge and scrape marks located in that lane, and also on forensic maps that were prepared by Senior Constable Bach as part of her investigation (Exhibit 20). The position of the gouge marks is also depicted and discussed at page 32 of Mr Keramidas' report dated 30 September 2013 (Exhibit 25). The gouge marks are on the left side of the northbound carriageway. Their position creates the possibility that, immediately before impact, the Mazda 6 took evasive action and steered to the left side of the northbound carriageway. In any event, the point of impact indicates that the Mazda 2 had progressed some way into the turn. Its turning path cannot be charted with accuracy. It depends on the type of curve that the Mazda 2 took and from precisely where in the southbound turning lane it started the turn. The impact with the Mazda 6 was to the front part of the Mazda 2. Several panels suffered impact damage including the front bumper, grill, bonnet and front guards. The car's engine and transmission separated due to impact. The damage profile of the Mazda 2, as discussed in Mr Keramidas' first report, supports the conclusion that the Mazda 2 suffered a frontal impact which moved laterally.

[99] The impact configuration between the two cars requires an assessment of their respective damage profiles and an assumption about the turning path of the Mazda 2. Mr Keramidas' opinion of the likely impact configuration appears at page 35 of his first report. In my view, he is correct to conclude that while the front of the Mazda 6 collided with the front of the Mazda 2, it was not a direct head-on impact. He thought that the Mazda 2 collided at a 40 per cent angle from the near side of the Mazda 6, as depicted in his diagram. An assumption about the likely impact configuration is required for any momentum analysis of the kind undertaken by Mr Keramidas. It is one of many variables. As will be apparent, the selection of a 40 degree angle is a matter of opinion rather than measurement and it is possible that the angle of impact was substantially greater than 40 per cent. The angle of impact needs to be factored in to calculations of the kinds performed by Mr Keramidas. For example, if the Mazda 2 was travelling at a speed of about 20 kilometres per hour, then based upon the impact angle which he adopted, about 14 kilometres per hour of that speed would be directed towards the south and would need to be overcome by the Mazda 6's momentum prior to it commencing to push the Mazda 2 back in a northerly direction. On the same assumptions, any 10 kilometre per hour speed for the Mazda 2 would add about five to six kilometres per hour to the speed of the Mazda 6, using such calculations. However, Mr Keramidas notes the absence of witness accounts of the speed of the Mazda 2 and notes that it is not possible to calculate the speed of the Mazda 2 using certain processes.

The speed and direction of the Mazda 6 immediately before the collision

[101] Any finding about the speed and direction of the Mazda 6 before the collision depends upon an assessment of all of the evidence. This includes the evidence of eye witnesses, the contents of expert reports (to the extent certain opinions have any probative value) and the drawing of reasonable inferences from evidence, particularly evidence of the extent of damage to the vehicles and what is known about their movement after the collision.

[102] As discussed, Ms Iose did not venture an estimate of the speed of the Mazda 6 when she spoke to police in 2012, but estimated its speed as being between 60 and 70 kilometres when she spoke to a solicitor in June 2013. Her sworn evidence was that the Mazda 6 was travelling at a normal speed. She did not explain how she arrived at that estimate, but nor was she cross-examined specifically about it. While she did not explain in her evidence at trial how she came to form such an estimate in 2013 or in giving her evidence at trial, her estimate cannot be ignored. It must, however, be taken as an estimate only with a margin for error because the car to her right was travelling at night and she did not keep it under constant observation. Nevertheless, her estimate, with its margin for error, does not support a finding that the Mazda 6 was travelling at an extraordinarily high speed of 100 kilometres or more.

[103] The first defendant gave no assessment of the speed of the Mazda 6. Her evidence leaves open a number of possibilities, including the possibility that she misjudged the time she had to make the turn because she did not judge or misjudged the speed of the oncoming car. It is also possible that the Mazda 6 was travelling at about the speed limit and she simply misjudged its distance from her car. Account must be taken of the fact that the first defendant did not tell police or anyone else that she perceived the Mazda 6 to be speeding substantially in excess of the 70 kilometre speed limit, but still thought that she had sufficient time to make the turn.

[104] At the start of these reasons I previewed the expert evidence and my conclusion that the expert opinion about the speed of the Mazda 6, if admissible, is of slight probative value.

[105] I am not persuaded that the reports of Mr Keramidas display the detachment, objectivity and scientific rigour required to place any substantial weight upon his opinions. For example, at page 25 of his first report he reported upon retrieving the tail light assemblies from the Mazda 6 and examining the filaments. He stated that the absence of distortion to the filaments in either the brake lights or the tail lights was consistent with the car's tail lights (and therefore necessarily the headlights) not being on at the time of the incident. For the reasons given in Dr Gilmore's report dated 26 August 2014, which included as an appendix an article about lamp examination, the state of the Mazda 6's tail light filaments could not add any useful information to enable determination of whether the tail lights themselves were incandescent at the time of the collision. The second defendant, in its submissions on admissibility, pointed out that Mr Keramidas only said that examination of the tail lights was "consistent with" the vehicle's lights being off at the time of the incident. Mr Keramidas might just as well have said that they were consistent with the lights being on. The experts in their joint report agreed that the condition of the tail light filaments on the Mazda 6 could not establish with any certainty whether the Mazda 6 headlights were on or off at the time of impact. The form in which Mr Keramidas reported his finding about the condition of the tail light filaments is illustrative of a lack of detachment.

[106] A further concerning aspect of Mr Keramidas' report was his preparedness to go beyond expressing opinions in an area in which expert opinion is admissible and of assistance, and reaching conclusions about how the accident happened. This appears at pages 47 - 51 of his first report, where he canvasses the evidence of witnesses. Unfortunately,

Mr Keramidas did so without the benefit of Ms Iose's statement, having only had available to him a witness summary contained in one paragraph of the police report.

[107] I turn to areas of expertise possessed by Mr Keramidas and Dr Gilmore, such as calculations of momentum. As I previewed at [8]-[13], any estimate or calculation of the pre-accident speed of the Mazda 6 depends upon numerous assumptions. One of them is the pole impact speed of the Mazda 6. Mr Keramidas addresses this issue at page 41 and following of his first report and in subsequent reports. He describes how the intrusion of the utility pole into the passenger compartment at the "B" pillar led to the collapse of the roof and bowing of the entire structure. He refers to video footage from the European NCAP testing on a Mazda 6 of similar construction to the plaintiff's Mazda 6. The images from that testing depict intrusion into the driver's door and partial distortion of the "B" pillar. Mr Keramidas' report at page 44 states:

"Based on the European NCAP testing as well as the author's own experience of having examined numerous vehicles involved in high speed pole impacts, it is quite probable that the vehicle's speed would have been at least 50 km/h at the time of impact with the pole. It is possible that it could have been as high as 60 km/h to produce the damage observed."

Mr Keramidas then performs a calculation which includes a slip angle in arriving at a post-impact speed for the Mazda 6 of between 62 to 70 kilometres per hour. The difficulty with any such analysis is that it is based on images of an impact of a different configuration (the side of a Mazda 6) to an area reinforced for safety, a point which Mr Keramidas accepted after his first report was critiqued by Dr Gilmore. Still, the side impact test was an important "foundation"[9] for his estimation of the impact speed. Another was his unspecified "own experience" of having examined "numerous vehicles" involved in high speed pole impacts. His precise experience and the angle and speed at which those other vehicles hit poles is not explained.

[108] I agree with Dr Gilmore's comment about Mr Keramidas' assumptions. In particular, given that the Mazda 6 had rotated and hit the utility pole partly on its side and partly on its roof line, Mr Keramidas' assumption that the impact can be compared with a pure horizontal, unrotated side impact NCAP test on a Mazda 6 is unsupported. As Dr Gilmore notes, vehicles do not require impact strengthening bars in their roof line and are generally not designed against impact on the roofline. A vehicle such as the Mazda 6 in this case will reflect this lack of stiffness and bend more freely. The vehicle will appear as if significant speed has been involved, and a comparison with NCAP side impact tests will be misleading and over-estimate the impact speed.

[109] Another assumption made by Mr Keramidas, in arriving at a figure for the post-impact speed for the Mazda 6, was an assumption that the vehicle slid or skidded to the point where it collided with the kerb line. I have had regard to Dr Gilmore's comments about the validity of this assumption in the light of the absence of skid marks, together with Mr Keramidas' responses in relation to what Dr Gilmore referred to as "Assumption 5" and "Assumption 13" in Mr Keramidas' original report. I have also had regard to Mr Keramidas' assumption underlying the correction factors he adopted. It is sufficient for present purposes to comment that each assumption made by Mr Keramidas in arriving at the post-impact speed of each vehicle is contentious, and not supported by clear evidence about the behaviour of each vehicle after impact, including the distance each vehicle may have been airborne or skidded or how it skidded.

[110] To return to Mr Keramidas' assumption, based upon the NCAP testing and his "own experience", the decision of the South Australian Court of Criminal Appeal in

R v Bjordal[10] is instructive in this context. In that case, an expert purported to give an opinion about a co-efficient of friction, based upon the co-efficient of friction that had been determined after extensive empirical testing on bitumen roads. However, there had been little empirical testing of the co-efficient of friction for a vehicle sliding around a bend on a loose gravel surface. The expert had purported to take account of that by adopting a co-efficient of friction lower than the lowest shown on a table. The Court analysed the principles governing reception of expert evidence. The critical factual premise on which the expert's estimate of speed of the appellant's vehicle rested was a co-efficient of friction of the tyres in loose gravel. The issue was whether his adjustment was valid and whether he had the expertise to make the adjustment. The Court concluded that he did not and that the relevant evidence should not have been admitted. Besanko and Vanstone JJ identified the issue of whether there was "any reliable body of knowledge or experience which could justify his selection of an appropriate co-efficient of friction". The evidence failed to demonstrate that there was or, even if there was, that the expert was qualified to apply it so as to justify his methodology. Their Honours also noted that the estimate of speed provided by the expert was an extremely wide one. Having regard to the wide-ranging estimate before it, the jury could have determined that taking a mid-point was a safe course. However, that would have resulted in a miscarriage of justice and the appeal was allowed.

"Expert evidence, grounded in the proved testimony, can therefore occasionally be useful. But in the end, such evidence is weighed only in respect of matters within the relevant field of expertise and is only as helpful as the evidence and assumptions on which it is based. Such evidence may not usurp the ultimate decisions which remain for the trial judge."[16]

[116] I conclude that the opinions of Mr Keramidas about the speed of the Mazda 6, if admissible, are of slight probative value.

[117] Some of the assumptions made by Dr Gilmore are open to question. For example, it is possible to arrive at different calculations to his by adopting a forward speed of the Mazda 2 of 14 kilometres per hour in a southerly direction and a co-efficient of friction of 0.7. On the last matter, there was evidence from a police officer who conducted friction tests on Lacey Road, many months after the event in question, using a police vehicle. He also gave evidence about the range of co-efficients which he had experienced in performing such tests on different Brisbane roads using police vehicles. The co-efficient of friction adopted by the police may be a useful working assumption. However, the officer's evidence that "slight" differences might be called for in respect of a different car with a different suspension and similar tyres does not permit one to arrive at a precise coefficient of friction for the relevant vehicles on the relevant day. He did not refer to tests using different vehicles, or the basis upon which he concluded that the differences would therefore be "slight". His evidence means that the co-efficient of friction may not be markedly different from that used for calculation purposes by the police in the police report.

[118] Whilst it is possible to adjust some of the assumptions used by Dr Gilmore in arriving at the figure at the lower end of the broad range which he calculated, Dr Gilmore did not say that the assumptions that he used were the most conservative which could be adopted. Ultimately, the expert evidence involves making numerous assumptions. The number of assumptions means that the result is highly sensitive to variations in each of them. In the absence of a reliable basis to support all or most of the assumptions made, including the absence of an accurate figure for the impact speed of the Mazda 6 before it hit the post, I place little weight upon the opinions of Mr Keramidas. In addition, there is a need for a cautionary approach in the use of any range of speeds which is arrived at, given the numerous assumptions that need to be made in order to calculate the pre-impact speed of the Mazda 6 and the lack of a reliable foundation for many of them. I have concluded that the expert opinions about the speed of the Mazda 6, if admissible, are of slight probative value.

Intuitive responses to the extent of damage and reasonable inferences

[122] These issues were previewed at [14] - [15] of my reasons. The photographs of the wreckage of the Mazda 6 and the Mazda 2 show that this was a "high speed" collision. However, that is a term of indeterminate reference. The expert evidence helpfully identifies the range of factors that need to be taken into account in arriving at any assessment of the pre-impact speed of the Mazda 6. They also identify how, after the collision, the Mazda 6 moved and collided with a nearby utility pole. It was not a simple horizontal impact into the side door, but also along the roof line. An intuitive response to photographs of the Mazda 6 after the collision to the effect that it must have been travelling at least 100 kilometres per hour to sustain such damage may be wrong, since it is possible that such damage could have been sustained at a lower speed.

[123] Mr Waugh from the Queensland Fire and Emergency Services, who was one of the leaders of the rescue effort that night, said that it was "the most extensive entanglement of a vehicle he had witnessed". The number of car impacts with a utility pole that he had seen, whether they were horizontal side impacts or some other angle and the cars' speeds were not the subject of evidence from Mr Waugh. His passing observation in a solicitor's file note confirms that this was a remarkable accident in terms of the appearance of the Mazda 6 being bent around the utility pole.

[124] Caution is required in basing any conclusion about the speed of the Mazda 6 simply upon an intuitive reaction to the extent of damage sustained to the Mazda 6 and the Mazda 2. This is because the angle of impact on the pole made the Mazda 6 especially vulnerable to crumpling and bending in the way it did, so as to cause greater damage to it than a horizontal side impact with a pole.

[125] While it would be an error to simply adopt a mid-point in the wide range of speeds left open by the expert evidence or to guess at a speed based simply upon an intuitive response to photographs of the Mazda 6 wrapped around the utility pole, it is still possible to draw reasonable inferences based on the extent of damage to the Mazda 6 and to the Mazda 2. Any such inference must take account of the point of impact of each vehicle and the likely angle at which they collided, so as to cause the Mazda 2's engine to be dislodged and for the Mazda 2 and its engine to each travel a substantial distance. How each of those components moved cannot be said for certain, save that tyre marks indicate where some of the wheels of the Mazda 2 skidded and engine oil on the road also assists in ascertaining a trajectory for the engine.

[128] The evidence establishes that the plaintiff was a good driver who did not usually speed. There is no evidence of any speeding or other traffic infringements by either the plaintiff or the first defendant.

[129] Evidence of the plaintiff's good driving habits, like evidence of the good habits of the first defendant, is relevant and I take it into account. Evidence of the plaintiff's good driving habits would make it wrong for anyone to assume that he fell into some stereotype of impulsive young men who may tend to drive at an excessive speed.

[130] Evidence that he was a good driver must be taken into account. However, it does not preclude a finding that, contrary to his usual habit, he exceeded the speed limit on a straight road which was relatively free of traffic that night.

Finding in relation to the speed of the Mazda 6

[131] My finding in relation to the speed of the Mazda 6 turns on the different categories of evidence I have discussed, and a consideration of what inferences may reasonably be drawn from what is known about the movement of each vehicle before and after the collision. The first category is the evidence of the two eye witnesses, neither of whom was able to give a precise estimate of the speed of the Mazda 6. As earlier noted, Ms Iose's estimate of a normal speed or a speed of between 60 and 70 kilometres per hour is simply that, and subject to a margin of error in the circumstances.

[132] The opinions of the experts, if admissible, are of slight probative value. A supposition that the speed must have been somewhere around the midpoint of a broad range cannot be made. The speed of the Mazda 2 at the point of impact is uncertain, but it is unlikely to have exceeded 20 kilometres per hour and may have been substantially less. It must have had a certain momentum which must be adjusted to take account of the angle of impact.

[133] While recognising that on certain assumptions made by Dr Gilmore it is possible that the Mazda 6 was travelling close to, or even slightly below, 70 kilometres per hour, account must be taken of:

• (a) the inability of Ms Iose to originally judge the speed of the Mazda 6, and the margin for error in her later estimate of its speed as normal;
• (b) the absence of any estimate by the first defendant of the speed of the vehicle whose headlights she saw;
• (c) the fact that the Mazda 2 probably was travelling at a speed of between 10 and 20 kilometres per hour, at a substantial but uncertain angle to the approaching Mazda 6, and thereby contributed a southbound momentum to the collision (whereas Dr Gilmore's calculations adopted a nil speed for the Mazda 2); and
• (d) the extent of damage to the cars, and what can reasonably be inferred from that and what is known about the movement of the cars before and after the collision.

[134] Having regard to the eye witness evidence and inferences that can reasonably be drawn from what is known about the movement of the vehicles, I conclude that it is more probable than not that the Mazda 6 was travelling substantially in excess of 70 kilometres per hour. However, the evidence does not persuade me that it is more probable than not that its speed exceeded 100 kilometres per hour. Whilst its precise speed cannot be stated, it probably was close to 90 kilometres per hour.

[135] My conclusion about the probable speed of the Mazda 6 accords with my conclusion that the Mazda 6 was the car which both Ms Iose and the first defendant saw in the northbound lane.

[136] If the Mazda 6 was travelling at a speed of close to 90 kilometres per hour, it would have covered close to 25 metres per second. If the first defendant saw the Mazda 6 when it was and seemed a long way off, say in the vicinity of 150 metres away, and Ms Iose saw it a few seconds later, the Mazda 6 would by then have been somewhere between 50 and 100 metres south of the intersection. Ms Iose then looked to her left and saw the Mazda 2 approaching the intersection, before she looked down for a few seconds. During those few seconds the Mazda 6 would have reached the point of collision, and the Mazda 2 would have covered the relatively shorter distance to the same point. If, on the other hand, the first defendant and Ms Iose saw the Mazda 6 at almost the same time, when it was about 100 metres south of the intersection, then there were four seconds for each vehicle to travel to the point of impact.

[137] I find that the first defendant failed to keep a proper lookout in circumstances in which she was required to exercise a high degree of vigilance as a driver intending to turn across the path of an oncoming vehicle. I conclude that she did not properly assess the distance to the Mazda 6 when she first saw it or its speed, and misjudged that it was further away from her than it actually was. Having failed to keep a proper lookout, and being confident that she could turn in front of the oncoming car, the first defendant probably looked in the direction of her intended path of travel and continued to fail to keep a proper observation of the car whose path she intended to cross. The first defendant also was negligent in failing to yield way to the plaintiff's car, as required by transport regulations. Leaving aside those regulations, if she was not sure of the distance to, and speed of, the oncoming car, her duty of care required her to yield to it rather than risk a collision.

[138] The first defendant was negligent in failing to keep a proper lookout and in failing to yield.

[139] The second defendant's submissions fairly acknowledge that the precise speed at which the Mazda 6 was travelling "is not able to be identified". However, I am satisfied that it is more probable than not that it was travelling substantially in excess of 70 kilometres per hour. The evidence does not persuade me, and the second defendant has not proven, that it was probably travelling in excess of 100 kilometres per hour. It was probably travelling close to 90 kilometres per hour.

[140] The plaintiff's excessive speed was negligent.

[141] The negligence of the first defendant and the contributory negligence of the plaintiff was each a cause of the collision and the plaintiff's consequent injuries. If the first defendant had kept a proper lookout she would have yielded way to the Mazda 6. If she had kept a proper lookout then she would have better assessed its distance and speed. If she was in doubt about those matters, then her duty of care required her to exercise vigilance and yield way to the Mazda 6.

[142] The plaintiff argues that the collision would have occurred regardless of what speed his vehicle was travelling because the first defendant's actions would have placed her vehicle in the direct path of travel of his with a right of way in less than one second, without warning, and, indeed, where her earlier actions would have been reasonably perceived as indicating an intention to give way to the northbound vehicle. The plaintiff contends that once the first defendant turned, "a collision was inevitable and that is so regardless of any inflated evidence of the plaintiff's speed".

[143] I do not agree that a collision still would have happened had the plaintiff been travelling at 70 kilometres per hour or less as he approached the intersection. Had the Mazda 6 been travelling at less than 70 kilometres per hour rather than substantially in excess of it, it would have arrived at the intersection later, probably after the first defendant had completed the turn. The first defendant misjudged the amount of time which she had to complete the turn and the speed of the Mazda 6 contributed to that misjudgement. A collision was not inevitable and it probably would not have occurred if the plaintiff had not been speeding in the first place or reduced his speed to 70 kilometres or less when he was a substantial distance from the intersection. In any case, the plaintiff's excessive speed contributed to the first defendant's perception that she had sufficient time to complete the turn, based upon an assumption that the oncoming car was observing the speed limit.

[144] Because I have concluded that the first defendant was negligent and that there was also contributory negligence, responsibility must be apportioned. I should have regard to the degree of departure of each party from the standard of care of a reasonable driver and the relative importance of their respective conduct in causing the loss sustained by the plaintiff.[17] In short, regard should be had to the degree of culpability of each driver and the causative force to be attributed to each of them.

[145] In my view, the first defendant's degree of departure from the standard of care of a reasonable driver was significantly greater than the plaintiff's.

[146] The first defendant was expected to exercise the high degree of vigilance required of a driver approaching an intersection, contemplating a turn across the path of an oncoming vehicle. It might be said that the plaintiff was expected to exercise a similar, high degree of vigilance in approaching the intersection, at a time when the Mazda 2 was in the turning lane and indicating an intention to turn across the northbound lane. Whilst the possibility that the Mazda 2 might turn across his path required consideration, it did not require the plaintiff to slow down to the extent that he could stop or take evasive action. That would place upon a driver approaching an intersection an unreasonably high duty of care.[18] A driver is not required to be in a position where he or she can react to everything that 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.[19]

[147] Whilst the plaintiff was not required upon seeing the Mazda 2 to either stop or slow to such a speed as to be able to avoid any collision, he was required to be vigilant and to lower his speed to a speed at or below the designated speed limit. I have concluded that he was driving at a speed substantially in excess of the speed limit, probably close to 90 kilometres per hour. In driving at that speed he contributed to the collision and the first defendant's misjudgement that she had sufficient time to turn.

[148] Having regard to the degree of culpability of each driver and the respects in which each driver's negligence caused the collision, I conclude that the liability should be apportioned in favour of the plaintiff and that there should be a reduction on account of contributory negligence of 30 per cent.

[149] For completeness, I should refer to a possible view of the evidence which I canvassed in the course of oral submissions: the possibility that the plaintiff had his lights on the parking setting. This possibility arises because of the first defendant's reference in her evidence to thinking that the approaching lights were "maybe low beam lights". The expression "low beam" in that context seemed to be intended by her to mean parking lights. She was not making a distinction between headlights being on low or high beam. I record that a statement which the first defendant gave to an insurance investigator dated 25 October 2012, and which was quoted at page 13 of Mr Keramidas's report, gave an account of the headlights not being "very bright, they were maybe on low beam". This statement was not admitted into evidence and was marked "I" for identification. In a witness statement dated 7 February 2013 (Exhibit 36) the first defendant said that she could remember that the other cars' lights were "very small and low down".

[150] I was not invited by either party to find that the headlights of the Mazda 6 were on parking mode. I have not found that they were, notwithstanding the first defendant's evidence and what I took her to mean by "low beam". This is because:

• (a) The first defendant did not have a very good recollection of many matters, including distance and the intensity of the headlights; and
• (b) Ms Iose did not give evidence that the headlights which she saw were not fully illuminated.

[151] Nevertheless, I recognise that a different view is open on the evidence in circumstances in which the first defendant noticed lights that were separate and thought that they may have been what she described as "low beam lights". The possibility that Mazda 6's lights were in parking mode arises if the plaintiff had stopped on his journey to make a purchase and, upon returning to his car, neglected to turn the light switch fully on. If his lights were in parking mode then this might explain why he did not detect that his lights were not fully on, particularly if his speedometer dial was illuminated and his parking lights provided some illumination of the road ahead. On this scenario, the two collisions (and the consequent damage to the car's interior) or rescue efforts knocked the light switch through one station, rather than two, into an off position.

[153] There will be judgment for the plaintiff.

[154] Quantum having been agreed, it will be necessary for the parties to calculate damages on the basis of my apportionment of liability and agree, if possible, appropriate orders to sanction the settlement of the plaintiff's quantum.

[155] I will adjourn the matter to a date to be fixed to enable the parties to resolve these matters or identify any matter which requires my determination.

[1] Turkmani v Visvalingham [2009] NSWCA 211; (2009) 53 MVR 176 at 182 [28].

[2] R v Stephenson [1999] QCA 519 at [10].

[3] R v Bjordal [2005] SASC 422; (2005) 93 SASR 237 at 254 [64].

[8] I have modified the punctuation slightly from that appearing in Exhibit 5 to reflect what I understood to be the sentence structure. However, these changes do not affect the essential meaning of what she recalled.

[10] [2005] SASC 422; (2005) 93 SASR 237.

[12] Nominal Defendant v Stephens [2011] NSWCA 312 at [57].

[13] [2003] HCA 22; (2003) 214 CLR 118 at 167 [150].

[14] [1999] QCA 519.

[15] [2007] QSC 297 at [6] citing Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 166-167.

[16] [2004] HCA 64; (2004) 211 ALR 621 at 627 [28] at [28].

[17] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 529 at 532-533.

[18] Schill v O'Rourke (1985) 3 MVR 137 at 138-139.

[19] Marien v Gardiner [2013] NSWCA 396 at [37] and the cases cited therein.