It should be noted that in the first line, the third column has the Greek capital letter "Delta" followed by the capital letter "T". It is "ΔT", not "AT". One will note that the first event recorded is the stopping of the Amarok in the driveway of 517 Dallinger Road. It enables a northbound vehicle to pass in front of it, that is, from south to north. 2.84 seconds later, the Amarok starts to exit the driveway, making a right hand turn southbound onto Dallinger Road. When one looks at the CCTV footage, which is Exhibit 4, I would describe the turn as "leisurely". There is a time between the passing of the car in front of the Amarok before the Amarok takes off and it does so at a very leisurely speed. The CCTV footage does not show the Amarok complying with the making of a right hand turn as prescribed by the Road Rules 2014 (relevantly, rule 31). They require the Amarok to pass over the northbound lane at 90 degrees to that lane and then when the vehicle is wholly within the southbound lane to turn to be parallel with the southbound lane.
- The actual route taken by the Defendant appears to be a relatively shallow arc, which I would describe as eventually being an angle of 45 degrees. Thereafter, there are only 4 seconds and 4/100 of a second between the commencement of that turn and the collision. In the following pages of Dr Rechnitzer's report, each of the events, numbered 1 to 9, is shown by a separate photograph. The still taken from the CCTV camera to show event 1 clearly shows the Defendant's Amarok to be partially on the carriageway, not wholly on the driveway, as the Defendant maintained strenuously in her evidence. It has been submitted on the Defendant's behalf that the Defendant's vehicle was wholly in the southbound lane of Dallinger Road at the time of the collision and that she was indeed parallel to both the theoretical centre line of the road and the kerb of the road at the relevant time. I am unable to accept that. That is not my view of the CCTV footage nor is it consistent with my view of the still photograph, figure 34, with which Dr Rechnitzer supports event six of the actual collision.
- According to Dr Rechnitzer, the point of impact was essentially on the centre line of the carriageway and the rear of the Amarok is clearly still on the westside of the carriageway. Ms Warren, for the Defendant, asked me to contrast that photograph with figure 2 on p 56 of Mr Keramidas' report, which shows the Defendant's Amarok wholly on the south side of the carriageway and the Defendant's motorcycle wholly on the south side of the carriageway, but even that does not show the Defendant's vehicle as being parallel with the centreline and the kerbing of Dallinger Road, but still at an angle to the centre line and the kerbing. That does show both vehicles to be wholly on the southbound lane. However, the experts could not reach agreement as to the point of impact. The Exhibit B, in section 1, records this:
"The experts agree that the 'area of impact' was near the notional centre line of Dallinger Road, about 2.5 to 3.5 metres north of the notional centreline of Conrad Place.
The experts agree the physical evidence is not definitive with respect to the 'point of impact'. It could range from being marginally either side of the 'notional centreline, which itself is only conceptual as the actual painted line markings terminate well south of the impact area. The impact 'area' was agreed by the experts as being consistent with GRA Fig 10 (page 24) which is reproduced below."
- The reference to 'GR' is a reference to Dr Rechnitzer's report and a figure in that report on p 24. Again, that shows the area of impact as straddling the notional centre line. It may be that there is more of it on the southbound lane than on the northbound lane, but even allowing for that, it appears to me to be unlikely that the whole of the Defendant's vehicle was on the southbound side of the carriageway at the point of impact.
- One of the difficulties with the CCTV footage is that because it is exposed at 90 degrees to relevant events, it is impossible to discern movements by the motorcyclist either to his right or to his left. The CCTV footage strongly suggests that there was no actual stopping by the Defendant in her making her turn prior to the collision but it is possible that there was some slowing down by her.
- There are a number of other things that I should say about the agreement of the experts besides agreeing to the area of impact as distinct from a point of impact.
- As ought be clear from what I have said earlier, the speed limit on Dallinger Road was 60 kph. The experts agreed that there was an area of roadworks on Dallinger Road located south of the impact location, and in that area the speed limit was 40 kph. There is independent corroboration of that fact in Exhibit 2. Exhibit 2 is an application made to the Albury City Council for "traffic control". The roadworks were to commence on 26 July 2019 and extend until 31 August 2019. The work was to be done from between 7:00am and 5.30pm on weekdays. It is clear from that document that the speed limit was to be 40 kph. That is on p 2 of the application. The application said that the roadworks were to commence 60 metres south of Conrad Place and they were to finish at 50 metres north of Vickers Road. The experts have agreed that the northernmost point of the roadwork was about 80 metres south of the impact area, based upon the photos taken by the NSW Police on the day of the accident.
- The experts have also agreed that the Plaintiff was riding his motorcycle at a speed of 84 kph over the last 70 metres, or three seconds of the CCTV footage, prior to his impact with the Defendant's vehicle. The Plaintiff is well aware that the experts reached that conclusion. Nevertheless, he maintained in his evidence that he believed that he was only travelling at 60 kph. That belief, if genuinely held, is clearly erroneous. Furthermore, I find it difficult to accept that an experienced motorcyclist would not know the difference between travelling at 60 kph and travelling at 84 kph. There can be no doubt that the Plaintiff was speeding, and the matter put forward by the Plaintiff when interviewed by the NSW Police as to why he was not speeding is merely self-serving, designed to induce the NSW Police's belief that he was not speeding. The experts have also reached this conclusion:
"While the evidence of both the Plaintiff and the Defendant indicate a movement of the motorcycle to the right prior to impact, there is no basis on which the experts could arrive at any scientific/evidence method for estimating the path taken by the Plaintiff. Indeed, as the CCTV camera was at right angles to the Plaintiff's path the footage does not assist. Therefore, while the general description of the movement to the right is accepted by the experts, there is no way of quantifying that movement. The experts can say that the time impact occurred the Plaintiff's motion was generally parallel the orientation of the roadway."
- However, as it is the evidence of both the Plaintiff and the Defendant that the Plaintiff did move to his right, and he freely admitted that when interviewed by the NSW Police, I accept that he did move from somewhere on the northbound lane to the centre of the roadway. Of course, when the white lines ceased to exist he could judge the centre of the road, perhaps by the camber. The experts went on to agree that, assuming that the Defendant's vehicle remained stationary, it would not matter which line the Plaintiff took, the collision would not have occurred. It does not need an expert to reach that conclusion. If the Defendant had remained stationary with her car partially on the road and partially still on the driveway, the Plaintiff could have passed without there being any collision whatever.
- The experts also agree that, assuming that the Defendant entered the roadway and turned in the manner observed in the CCTV footage, the collision would likely have been avoided if the Plaintiff took a central path within the notional northbound lane. In other words, if he did not at all react, the collision may not have occurred. This is the highlight of the Defendant's case on liability. There is, however, a problem with that observation. Most drivers, especially the more experienced, often take defensive manoeuvres. I have never driven a motorcycle in Australia, but I do drive motor vehicles, and if somebody comes out on my left from, say, a driveway, or a cross street, I often move towards the centre line - a defensive precaution - in case I have not been seen by the motorist on my left, and if I move more towards the centre of the road, he has a greater opportunity of seeing me and giving way to me.
- I describe this defensive mechanism as giving the vehicle on the left a 'wide berth', and that is clearly what the Plaintiff did. In my view, he cannot be criticised for making that manoeuvre. The Plaintiff told me that he moved to the centre of the road but did not admit that he moved onto the incorrect side of the carriageway. I believe it unlikely that he did. I believe it more likely than not that he may have stayed in the middle of the road at the apex of the camber, where there was no painted centreline.
- The experts went on to agree that the CCTV footage shows that the Defendant moved onto the roadway in what appears to be one continuous motion, with a relatively constant speed, at the final segment, prior to the impact. The CCTV footage did not appear to show her vehicle to have stopped or to have slowed prior to the collision.
- The experts then pointed out that the reader of their joint report should note that there are limitations to the accuracy of the motion able to be established due to the distance of the camera from the vehicle. It is therefore not possible to say, definitively, whether the Defendant did brake or slow or did neither of those things prior to impact.
- Since both the Plaintiff and the Defendant say that the Defendant slowed, I am prepared to accept that, however, slowing was counterintuitive. A person in the position of the Defendant, confronted by a vehicle, approaching at, basically, right angles, will be well advised to put her foot heavily on the accelerator pedal, and accelerate out of the path of the oncoming vehicle. She did not do that.
- The experts also agree that the CCTV footage appears to confirm the Plaintiff's account, that he did not apply the brakes on his motorcycle after observing the Defendant's motor vehicle prior to the collision. The Plaintiff, in his oral evidence, maintained that he did not brake. In his view, that was, again, a manoeuvre to be avoided because it could have caused his bike, with him on top, to fall to the ground and to throw him under the wheels of the Defendant's vehicle. In other words, heavy braking could have caused an accident. Seeking to avoid the path of the Defendant's vehicle was the choice made by the Plaintiff.
- It has been submitted, on behalf of the Plaintiff, that the choice, for example, to move towards the centre of the road was an exercise in defensive driving, but once he saw the vehicle travelling in a manoeuvre which would cause a collision, he decided to veer to the left in order to try to go behind the Amarok, but he was unsuccessful in that manoeuvre.
- It has been submitted by the Plaintiff that that was a decision made in the 'agony of the moment'. Counsel for the Plaintiff referred me to the decision of Stuart v Walsh [2012] NSWCA 186; (2012) 61 MVR 271, a decision of Tobias AJA, with whom Bathurst CJ and Basten JA concurred. In particular, I was referred to [61] to [65] of his Honour's reasons:
"61 It was in the context of Dr Walsh's over-reaction submission that reference should be made to the appellants' submissions based on their 'agony of the moment' contention. Reliance was placed on a passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 where the Chief Justice considered the question whether a defendant may rely on the principle of the 'agony of the moment' in answer to a claim that he acted negligently towards another. His Honour said:
'This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.'
62 This passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah v Newton (1998) 28 MVR 364 at 365-366. See also Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] per Ipp AJA with whom Hodgson JA and Rolf AJA agreed; Byrnes v Snare (1986) 4 MVR 97 at 99 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreeing.
63 Like the position in Abdallah, Mr Stuart found himself in a situation which was not of his making. He was driving his truck at 80 kph when, without warning, he suddenly observed between 65 and 90 metres in front of him a cyclist in the breakdown lane look right over his shoulder and then immediately turn 90 degrees onto the carriageway and, at least potentially, into the path of his vehicle. To adopt and adapt the observations of Street CJ in Leishman, Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes. It was never suggested to him that this was an inappropriate thing to do. Importantly, he responded to the potentially dangerous situation created by Dr Walsh as soon as it occurred: cf Vale v Eggins at [14] and [17].
64 In so reacting Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had remained in Lane 1, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. He found himself faced with a situation which, in my opinion, required immediate action of some sort. If steering to the right was in hindsight the wrong thing to do then it was, in my view, an error of judgment made in the 'agony of the moment'. To adopt and adapt what Ipp AJA said in Antypes, the fact is that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action he did. Being confronted with a situation with which he was required to make an instant decision or one with which it was necessary for him to deal in a matter of a few seconds, it cannot be the case that he acted unreasonably in any way.
65 In summary, the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself."
- I accept that the decision to veer to the left, that is, to try to pass behind the Amarok, was a decision made by the Plaintiff in the 'agony of the moment'. The time within which he could do so, make any decision, was extremely short, caused by the fact that the Defendant chose not to give way to the Plaintiff, as she was, by law, required to do.
- In the joint expert report, the following is stated:
"The experts agree that, all else being equal with respect to the Defendant's motion, had the Plaintiff been travelling at 60 km/h rather than 84 km/h at the point along his journey when he actually saw the Defendant's vehicle leave the kerb, he would have had sufficient time to avoid impact.
WK is of the opinion that no breaking would be required in that scenario. GR is of the opinion that the scenario is somewhat hypothetical as it assumes that changing one variable (the speed of the motorcycle) will have no effect on any other responses by the drivers involved."
- The opinion of Mr Keramidas is, of course, another strong point in the Defendant's argument. However, the fact is that the Plaintiff was not travelling at 60 kph. Of course, everyone is required to obey the law. However, courts are kept very, very busy by those who do not. Travelling above the speed limit is fairly common. Travelling at the speed the Plaintiff did on this road is not. However, one must make allowance for error. One cannot assume that everyone is going to obey every jot and tittle of the law. I agree with Dr Rechnitzer's assessment that it is merely hypothetical, because one would not know what else might change, if one changed the speed of the Plaintiff's motorcycle.
- The experts went on to agree that all else being equal (with respect to the Defendant's motion), there was sufficient time for the Plaintiff to brake (rather than swerve) so as to avoid impact. Again, this is an 'agony of the moment' situation. The Plaintiff could swerve, or he could brake, or he could attempt to do both. Attempting to do both could well have unsettled the motorcycle and caused an accident in any event. Swerving or braking each creates its own problems, especially if the braking causes the wheel to lock such that there can be no manoeuvring. Again, I accept that that is covered by the 'agony of the moment' position.
- The experts have agreed that, assuming the Plaintiff was travelling at 84 kph, that, with 'emergency' braking, the collision likely could have been avoided if the Plaintiff had braked at a minimum distance of 40 metres to have avoided impact. It is clear from figure 47 of the report of Dr Rechnitzer that at four seconds from the point of impact, the Plaintiff was 90 metres from the point of impact. At three seconds prior to impact, the Plaintiff was 70 metres prior to the point of impact, and at two seconds, the Plaintiff was 47 metres away from the point of impact.
- However, it is clear from the CCTV video collision event summary, which has been set out earlier in these reasons, that at 2.84 seconds prior to the collision, the Defendant started to exit the driveway making the right hand turn southbound onto Dallinger Road. At that time, the Plaintiff was somewhere between 47 metres and 70 metres from the accident scene - probably more in the vicinity of 60 metres. A difference, of course, between 60 metres and 40 metres when travelling at a speed of 84 kph is not particularly great.
- Again, I believe that, in the 'agony of the moment', the Plaintiff made the decision to veer to his left when he saw the Plaintiff's vehicle coming out and, of course, one must also allow for reaction time - generally 1.5 seconds - so that between when the Plaintiff first perceived the second movement of the Amarok from its position partially on the driveway and partially on the carriageway, to turning fully onto the carriageway, there would be 1.5 seconds before he could react.
- Looking at figure 47 in Dr Rechnitzer's report, which records the Plaintiff's position on the roadway and how far he was from the point of impact, at two seconds, three seconds, and four seconds, and then allowing for reaction time, it appears to me to be highly unlikely that there was sufficient time to enable the Plaintiff to make the emergency brake postulated in per 14 of the joint expert's report.
- The final finding in the joint experts report was that they agreed that the Plaintiff should have been visible to the Defendant for at least 95 metres away, being the distance covered by the Plaintiff's motorcycle, from the point at which the Defendant moved from stationary to the point of collision. In other words, the Defendant should have been able to assess whether it was safe to enter the roadway.
- At this point, it is necessary to observe that, on the first day of this hearing, the Court, sitting in Albury, took a view, in heavy rain, at the accident site, with the assistance of the parties and their Counsel and Solicitors. I estimated, despite the heavy rain, that there was good visibility for 300 metres to the south from where the Plaintiff was positioned partially on the driveway of 517 Dallinger Road and partially on the carriageway on the other side of the driveway.
- In fact, according to the report of Dr Rechnitzer, the distance that could be seen was 400 metres. To suggest, as the Defendant would have me believe, that she could only observe the Plaintiff when he emerged from the roadwork, some 80 kilometres away, must be rejected as being fanciful.
- Furthermore, if she did see him there, then it was reckless of her to make the turn, especially when she perceived that he was speeding. Her perception was that he was travelling at 90 kph. When she made that observation is not clear. If she saw him at 80 metres away, travelling at 90 kph, then one must ask oneself why she made the turn she did.
- I have thought long and hard about this issue, and have reached the view that the only thing that explains what happened here is that the Defendant did not look. She'd seen a car coming from the south, heading north. She gave way to it. When that passed, she moved out, it would appear to me, completely unaware that the Plaintiff was driving his motorcycle northwards on Dallinger Road. That is the effective cause of the collision is that the Defendant did not observe a primary Road Rule.
- Road Rule 74 is this:
"(1) A driver entering a road from a road related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to -
(a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road related area or adjacent land), and
(aa) a driver making a U-turn on the road, and
(b) any pedestrian on the road, and
(c) any vehicle or pedestrian on any road related area that the driver crosses to enter the road, and
(d) for a driver entering the road from a road related area -
(i) any pedestrian on the road related area, and
(ii) any other vehicle ahead of the driver's vehicle or approaching from the left or right."
- The Defendant's primary duty was to give way to any person lawfully using the road into which she intended to turn. She did not. It appears to me that she only saw the motorcycle for the first time when she was halfway through making her turn, and, at that moment she panicked, which led her to slow down, as she said. The Defendant said she slowed down. She certainly did not come to a stop, as she said, and as the experts joint report tells me. But equally, it is hard for the experts to discern, from the CCTV footage, whether she did slow because of relative angles.
- In their submissions, Mr Dooley SC and Mr Hunt submitted that I should dismiss the Defendant's evidence in its entirety. They pointed out that the Defendant's evidence was entirely inconsistent with the mechanics of the accident as found by the experts and as shown on the CCTV footage. They submitted that it amounted to no more than a reconstruction of events in order to exculpate her gross failings. Those gross failings were, of course, a failure to keep any, or any proper, lookout, and a failure to give way to a vehicle to which she was required to give way. They submitted that the process began at the scene of the accident when she moved the vehicle from where it had ended up after the collision in order to avoid the NSW Police finding where the point of impact might be and as to how the accident occurred.
- It was submitted that the Court would form the view that the Defendant's sole purpose in removing the vehicle from the accident scene was to remove evidence of her alleged wrongdoing. They also pointed out, quite correctly, that the Defendant could offer no reasonable explanation for moving the vehicle when she had been asked to leave it in situ by the independent witness, Mr Bathis. I agree. I found the Defendant's evidence exasperating. Every time she was required to answer a question that might cause her a problem, she said that she had been affected by shock. I do not give any weight whatever to anything that the Defendant has said.
- Equally, I can give no weight to the Plaintiff for the evidence that he would have me believe about his speed. Clearly, he was speeding. He must have known it, and although he tried to lay some tracks to cover up that fact, the fact remains that he probably was unaware of the CCTV from the Hanson depot, and only by the use of that technology could his actual speed be determined. Though the Plaintiff had been, earlier in the day, at the function at Beaurepaires, he was returning there to help tidy up after the event. He may have thought that he was in a hurry. He may have given a little credence to the roadworks because, as most people would know, roadworks are hardly ever done on a weekend, especially in local government areas (not on major arterial roads).
- I have no hesitation in finding that the Defendant was negligent. I have no hesitation in finding that the Plaintiff was speeding. Clearly, this is a case in which the Plaintiff's speed contributed to the accident. I am therefore required to apportion liability. The Defendant's submissions refer me to the well-known line of cases, beginning with Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, Nominal Defendant v Green [2017] NSWCA 280, and in the many cases where those authorities have been repeated. Again, the case law makes clear that there is the concept of "causal potency", which is referred to in [77] of the submission on behalf of the Defendant by Ms Warren.
- In my view, the most potent cause of this motor accident was the failure of the Defendant to keep any proper lookout, to see the Plaintiff approaching on his motorcycle, burning its headlight, making the noise referred to by her husband in his statement, and turning, essentially, across the path that it must take. The Road Rule required her to give way to anyone using the carriageway. She did not. I accept that the decision of the Plaintiff to move one metre from the northbound lane to the centre of the road and to continue along the centre of the road was done for a legitimate defensive reason initially. There is no suggestion that there was any traffic in the southbound lane prior to or after the Defendant turned into the southbound lane.
- Then, when confronted by the Defendant's unexpected move from halfway between the carriageway and the roadway, the Plaintiff had to make a decision either to brake, to change his path, or to swerve in the opposite direction, which is what he did. Unfortunately, his swerve was insufficient.
- Equally, if he had not been travelling at such a speed, his options may have been greater. The ability to brake may have been greater, with less impact. There would have been more time for him to effect a braking manoeuvre or perhaps a more successful avoidance mechanism by manoeuvring behind the Defendant's vehicle.
- Doing the best that I can, I accept that 25% of the liability for this collision should be apportioned to the Plaintiff, in other words, his being guilty of contributory negligence of 25%.