David Gilbey v Lyndall Murray

Judgment 1David Gilbey was riding his motorbike along Coolangatta Road on the South Coast. The road runs between Berry and Shoalhaven Heads. Mr Gilbey was heading towards Shoalhaven Heads. 2Ms Lyndall Murray was driving her car in the same direction along the same road. She was ahead of Mr Gilbey. Ms Murray was heading towards her mother's home which was on Coolangatta Road at Far Meadow. The house was on the right along a straight stretch of a two lane road. 3Ms Murray turned from the lane she was in across the oncoming lane towards her mother's driveway. But Mr Gilbey was overtaking at the same time and he collided with her. It was a serious crash and Mr Gilbey was badly injured. The accident happened about 3:00pm on the afternoon of 18 July 2009. 4Mr Gilbey has sued Ms Murray claiming that the accident was her fault. He wants the Court to order her to pay him damages for his injuries. Ms Murray denies that she was at fault at all. Even if she was at fault she says that there was nothing she could have done to avoid the crash. If she is liable she says that the accident was in any event mostly Mr Gilbey's fault. 5Because it is Mr Gilbey is the plaintiff who is suing Ms Murray as the defendant for damages it is up to Mr Gilbey to satisfy me that it is more probable than not that his claims are right. Section 5E of the Civil Liability Act 2002 says as much. 6That is a basic outline of what this case is about. There are two fundamental issues for me to resolve. The first is whether Ms Murray was at fault at all. In other words whether she had breached her duty of care to Mr Gilbey. The second issue is whether any breach of duty on Ms Murray's part caused the accident. I should add that Ms Murray agreed that she owed Mr Gilbey a duty of care in the first place. 7Two very competent and experienced counsel conducted the case. Mr A. J. Stone appeared for Mr Gilbey and Mr W. M. Fitzsimmons appeared for Ms Murray. 8Before resolving those two fundamental issues I will say a little more about the case. 9Mr Stone called his client, Mr Gilbey, and the driver of the car immediately behind Ms Murray's car. That driver's name was Judith Sweeney. 10Mr Fitzsimmons called his client, Ms Murray, together with one of her passengers, her mother Mrs Alice Taylor. In addition Mr Fitzsimmons called a police officer, Senior Constable Dawes and another motorist, Mr Davendran Reddy. I need to make some assessments about some of those witnesses. 11Both parties tendered exhibits, most of them were photographs but there were also some medical and other reports as well as some claim forms and an RTA document. The hearing was conducted without transcript. Counsel and I have relied on notes. 12As Mr Stone acknowledged in his helpful outline of submissions which became MFI 2, his client's account of the accident was not consistent with accounts given by the other eyewitnesses. Mr Stone did not rely on his client's account of the accident. Indeed he placed "no reliance on the plaintiff's evidence except where independently verified". He argued that his client was not deliberately lying but genuinely mistaken in his recollection. 13Mr Stone submitted that I do not need to conclude that there was any deliberate dishonesty on his client's part. I think he is right in saying that I do not need to reach a conclusion on that question. Nor do I need to give an account of what his client's version of the accident was. 14As for the other witnesses, Mr Stone said that they were all doing their best. He said that inconsistencies should be expected because they were giving an account of fast moving events over a short period of time. I accept that too. 15In particular I think that description is accurate for Ms Murray's evidence. She was driving her mother and some of her children. The accident happened suddenly and, so for as she was concerned, without warning. The other vehicle involved had come from behind and the first she knew of its presence was the collision. I think it was a fairly shocking experience for her. She became upset in the witness box in recollecting it. 16Ms Murray's mother, Mrs Taylor, acknowledged that she did not know what had happened after the accident. She too was quite shocked by the accident and cannot even remember a bang. 17I found Mrs Sweeney to be the most impressive witness. She lived further along Coolangatta Road than Ms Murray's mother. She was immediately behind Ms Murray as Ms Murray was slowing down to turn right. That meant that Mrs Sweeney had to pay particular attention to Ms Murray's car in front of her. 18Mr Fitzsimmons described Mrs Sweeney's evidence as "considered". I think that is a fair description. As Mr Fitzsimmons said, Mrs Sweeney "wasn't going to be talked into anything". Mrs Sweeney on occasions during questioning paused and thought before providing an answer. Sometimes she asked for a question to be repeated. 19Mr Stone said Mrs Sweeney's evidence was based on her reconstruction of events rather than a recollection of events. He acknowledged that Mrs Sweeney was endeavouring as well as she could but he said I should prefer Ms Murray's own recollection on some issues. 20I prefer Mrs Sweeney's evidence. I agree that she was considered in her responses. The events unfolded right in front of her as she was paying particular attention to the car in front of her. Unlike Ms Murray and her mother, Mrs Sweeney was not personally involved in the collision. 21I will now consider the first issue of whether or not Ms Murray was in breach of her duty of care. 22I think she was. Ms Murray acknowledged as much in her evidence. She accepted the possibility there could have been additional cars behind Mrs Sweeney's car. She accepted the possibility that those additional cars may not have seen the indicator which she had on for her right turn. She said that immediately before her turn she did not check her side mirror. Indeed she acknowledged that at no stage did she check her side mirror as she came towards her right turn. She agreed that it would have been appropriate for her to check as she was about to turn. She said if she knew what was going to happen she would have checked her side mirror. She agreed that it would have been good driving practice. 23The breach which I find occurred was quite specific. Ms Murray failed to check either in her side mirror or by looking over her right shoulder. Such a check was not a counsel of perfection, as Mr Fitzsimmons argued, but in my opinion an important precaution to take against the possibility that someone was overtaking along a straight stretch and had not seen her indicator. 24I accept the submission made by Mr Stone in his outline of closing submissions (which became MFI 15) where he said at p 8 that Ms Murray's failure to look was critical. He said that Ms Murray "failing to look, breached the duty she owed to other road users, including the plaintiff". 25It had been suggested that there was some complexity in the turn which Ms Murray had to undertake into her mother's driveway. It is true that it was a fairly sharp right hand turn. I do not regard the turn as very complex. It had some challenges to it but, as Mr Stone argued, "if there was complexity, the defendant should have slowed so as to cope with the complexity". I also accept his argument that: "a driver has a duty to take reasonable care to handle the complexity of the road environment. A driver is not permitted to abandon part of their responsibility (to check for overtaking vehicles) simple because there are other challenges in the road environment. If the defendant was unable to handle the complexity of the situation (which she never claimed), she should have slowed further or driven ahead and come back." 26In terms of the Civil Liability Act and s 5B, I am of the opinion that there was a foreseeable risk that a person may have been attempting to overtake on a clear stretch of road where the speed limit was 90 kilometres per hour. That risk was not insignificant and, in my opinion, a reasonable person in Ms Murray's position would have checked either in her side mirror or over her shoulder. As I said, Ms Murray acknowledged as much. If she failed to check and someone were present then the probability of harm was significant and the seriousness of the harm was high. The burden of taking precautions, namely looking in the side mirror or over her shoulder was slight, if not negligible. 27Mr Stone argued that another of Ms Murray's breaches was her speed. Ms Murray's speed however does not appear to be pleaded amongst the particulars of negligence in the amended statement of claim. Nevertheless I will consider this issue. 28Mr Stone argued that Ms Murray was going too fast when she turned right. He says that I should find that she was travelling at 30 kilometres per hour. He pointed out that Ms Murray's own estimate was that she was travelling at 30 kilometres per hour when she turned and that, on the other hand, Mrs Sweeney gave a variety of versions of Ms Murray's speed. 29In addition Mr Stone argued that the post-impact movement of the vehicles was more consistent with Ms Murray's car travelling at 30 kilometres per hour. Mr Stone rhetorically asked how a motorbike could push a car the distance it travelled, given the observable damage to the vehicles. 30On the other hand Ms Murray did describe braking as she approached the right turn. It involved quite a sharp right hand turn up a hill. The photographs confirmed that. Ms Murray said she braked enough to gradually stop just before the entrance. She acknowledged that she did not actually stop before the turn. Asked what her speed reduced to she estimated about 30 kilometres per hour. 31In cross-examination Ms Murray acknowledged that she would not normally accelerate as she was entering the driveway and would not shift her foot off the brake. She could not recall what she specifically did on that day. 32Mrs Sweeney was going downhill following Ms Murray. Mrs Sweeney's primary focus was on Ms Murray's car so that she would not collide with it. Mrs Sweeney said in her evidence-in-chief that both she and Ms Murray's car were slowing down as they approached the driveway. Mrs Sweeney said in cross-examination that she recalled Ms Murray's car stopping for the turn but acknowledged that it may not have come to a complete stop. Mrs Sweeney said that when Ms Murray's car commenced its turn it was travelling very, very slowly. 33I do not think Ms Murray was attempting to turn at 30 kilometres per hour. Both her evidence and the photographs suggest that it was quite a sharp turn to the right. It seems to me improbable that a driver would attempt that turn at 30 kilometres per hour. In any event Ms Murray's own estimate is of about 30 kilometres per hour and it seemed to be qualified and not confident and I prefer Mrs Sweeney's evidence because she was focussed on Ms Murray's car. 34Mr Stone has a point about the distance travelled by the bike and the car after the collision, but he wants me to attribute that distance to the speed travelled by Ms Murray. However, I am not satisfied that I can conclude that Ms Murray must have been travelling at 30 kilometres per hour because of the distance her car travelled after the accident. It involves uninformed speculation. It seems to me to be an area where I would need some opinion evidence about the dynamics of a collision. 35In my view Ms Murray was attempting her right hand turn travelling very slowly. 36I will now turn to the second fundamental issue to be resolved, causation. I have to be satisfied by Mr Gilbey that Ms Murray's negligence was a necessary condition of the injuries that he received in the accident. 37Mr Stone frankly and realistically acknowledged that the evidence for his client on breach of duty - and I have found in his favour on that issue - is much stronger than the evidence for causation. 38Causation is a live issue in this case because Ms Murray argues through Mr Fitzsimmons that even if she had discharged her duty of care and looked, she would not have seen Mr Gilbey. 39Mr Stone on the other hand argues that Mr Gilbey was there to be seen if Ms Murray had looked over her shoulder or into her side mirror. She would have seen him and had the option of going straight ahead or going further. As Mr Stone succinctly but accurately put it, Ms Murray "turned and hoped". 40So the essential question here is whether I am satisfied that Ms Murray would have seen Mr Gilbey had she checked before turning. 41Mr Fitzsimmons argues that I do not have enough evidence to make the finding that when his client commenced her turn Mr Gilbey was there to be seen by her. He points out that I need to make a precise finding given the breach claimed that at a particular time - the commencement of her turn - Mr Gilbey would have been in Ms Murray's rear view mirror and, furthermore, Ms Murray could do something to prevent the collision. 42Both parties focussed on the evidence of Mrs Sweeney. She said that the bike passed her in a flash. The critical question is what stage Ms Murray was when Mrs Sweeney saw the flash. 43Asked in evidence-in-chief by Mr Stone whether Mrs Sweeney saw Ms Murray commence her turn before Mrs Sweeney was aware of the motorbike she replied it was "simultaneous". More specifically she was asked: when she first saw the motorbike what was the car in front doing? She replied that it had commenced to turn and that it had left the left side of the road. 44Mr Stone argued in his written submissions that I should find that "the plaintiff was alongside Mrs Sweeney's vehicle as the defendant commenced her turn. The defendant could and should have checked her side mirror or over her shoulder prior to making her turn and then, after a sweep ahead and to the side she should have checked again as she made her turn." As Mr Stone argued, if his client was alongside Mrs Sweeney as Ms Murray commenced her turn "he would have to have been in the overtaking lane for longer. He has had to come out and pulled alongside (while Mrs Sweeney was still moving forward) before overtaking". He submitted that it was "possible for the defendant to observe the plaintiff either pulling out or alongside Mrs Sweeney's vehicle". 45In cross-examination Mrs Sweeney acknowledged that the events all happened in seconds. She saw the flash of the bike out of the corner of her eye. She said that Ms Murray's car was travelling very slowly at impact. She said it was travelling very, very slowly at the start of the turn. Mrs Sweeney said she saw Ms Murray's car on the other side of the road, then the flash of the bike. She said the sequence was: a slow turn, then a flash, then a hit. The car's initial speed was very slow. Mrs Sweeney added that she thought that Ms Murray's car had travelled a reasonable distance on to the other side of the road when she saw the flash of the bike. I repeat she recalled the sequence being that Ms Murray's car was slowly turning, then there was a flash of the bike, then the collision. 46This is where my assessment of Mrs Sweeney's evidence becomes vital in the resolution of this case. There is a degree of inconsistency between her description of the flash of the bike and Ms Murray's turn being "simultaneous" in evidence-in-chief and, on the other hand, her description of the sequence of events in cross-examination. 47But I accept Mr Fitzsimmons' submission that Mrs Sweeney was a careful witness. I repeat my acceptance of Mr Fitzsimmons' point that if there was one thing regarding Mrs Sweeney, that is that her evidence was considered. She stopped, paused and thought before giving answers. I accept the account she gave in cross-examination. I think the forensic process of cross-examination produced an even more considered response from Mrs Sweeney. 48I think it more likely that Ms Murray was well committed to her turn when Mrs Sweeney saw the flash. 49Even if I did not prefer Mrs Sweeney's account given in cross-examination I cannot be satisfied on the balance of probabilities that her initial "simultaneous" response represents the case. That is because that initial response was later significantly qualified in cross-examination. 50Mr Gilbey has not satisfied me that he was there to be seen if Ms Murray had looked. I therefore find that even if Ms Murray had discharged her duty of care by looking in her side mirror or over her shoulder she would not have seen Mr Gilbey and it cannot be said that her negligence caused the accident. 51In terms of s 5D of the Civil Liability Act, Ms Murray's negligence was not a necessary condition of the occurrence of the harm. 52My recollection is that the parties invited me to make a finding on liability before any finding on damages. Hence my findings in this case will not include any assessment of damages. 53There are some specific issues which I should make some findings about. 54There is an issue about Mr Gilbey's speed. As Mr Stone argued in his written submissions, that is unknown from lay observations at the scene. It is not capable of amateur calculation, just as in my opinion I should not try to calculate Ms Murray's speed as an amateur exercise. 55The impression that one has is that Mr Gilbey's speed was fast. That impression comes from Mrs Sweeney's description of his passing as a "flash" and from evidence given by Mr Reddy who was overtaken by Mr Gilbey at some stage shortly before the accident. However, Mr Reddy was very effectively cross-examined by Mr Stone and it is clear that I cannot reach a conclusion about Mr Gilbey's speed at the time of the accident from any observations made by Mr Reddy. 56But I can, I think, safely conclude that Mr Gilbey was probably travelling fairly fast. I do not say that he was travelling too fast. I bear in mind, in finding that he was probably travelling fairly fast, that he was overtaking and that he was in a 90 kilometre per hour zone and that his passing was described as a flash by a motorist. I do not find that he was exceeding the speed limit. 57The point of impact in my opinion - consistently with Mrs Sweeney's evidence - was more likely towards the further side of the traffic lane in which the collision occurred. By further side I mean the side closer to the driveway entrance of the traffic lane. 58Mr Stone drew attention to evidence that an expert in accident reconstruction had been qualified on behalf of the defendant in the case but not called. He submitted that what accident reconstruction experts do is to attend the scene of an accident, take photographs and measurements, calculate speeds from impact damage and make further calculations about time and space available for overtaking. Mr Stone invited me to infer that "on none of these issues does the expert retained by the defendant assist in advancing any of the defendant's submissions within the scope of the expert's expertise." 59On the other hand I must be aware that the inference - which is in accordance with the High Court's judgment in Jones v Dunkel (1959) 101 CLR 298 - is one which cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into inference. I do not think that any inference that might be available about the absence of the accident reconstruction evidence can overcome or counterbalance the significance of the evidence of Mrs Sweeney as an eyewitness and having the qualities of a witness which I have described. 60Finally the parties devoted some attention to the issue of contributory negligence. I should make a finding about that. 61Mr Gilbey substantially contributed to the accident. Mr Stone realistically and in my opinion correctly concedes that he could have been responsible for 50 per cent of the accident. 62Mr Fitzsimmons on the other hand says that Mr Gilbey's responsibility should be assessed at seventy per cent. I have examined the authorities which the parties have referred me to which include Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492, Vale v Eggins [2006] NSWCA 348; (2006) Aust Torts Reports 81-869, Hawthorne v Hillcoat [2008] NSWCA 340 and Zanner v Zanner [2010] NSWCA 343. 63I do not think that Mr Gilbey's negligence was in the category of the negligence referred to in Hawthorne v Hillcoat and Zanner v Zanner. Mr Gilbey's culpability was in my opinion greater than Ms Murray's. Her culpability was a failure to guard against the possibility that someone may be carelessly overtaking. 64On the other hand Mr Gilbey was very careless, if not reckless, in overtaking when the traffic was slowing. I think a finding of 65 per cent contributory negligence by Mr Gilbey is a reasonable assessment in the circumstances. 65I therefore find a verdict for the defendant in these proceedings and I enter judgment accordingly. HIS HONOUR: Ms James, Ms Smart, what if anything? Costs? SMART: I've got an application to make your Honour. If I can just hand up a document which is a facsimile, a confirmation sheet and then a letter with enclosures to John Maguire and Associates. HIS HONOUR: Right. So what's your application? I assume it's something to do with costs. SMART: Yes your Honour, it's an application for costs to be paid by the plaintiff to the defendant from 5 February 2011, which is the day following the day on which the offer of compromise was made and it's pursuant to rule 20/26-- HIS HONOUR: And to be paid on a particular basis. SMART: Or an indemnity basis. HIS HONOUR: Indemnity basis, okay. You've made available to me some correspondence on the costs application. Ms James do you object to the tender of the correspondence? JAMES: No your Honour. EXHIBIT # FILLIN "NUMBER space DESCRIPTION" * MERGEFORMAT C1 DEFENDANT'S COSTS APPLICATION TENDERED, ADMITTED WITHOUT OBJECTION HIS HONOUR: All right, any other evidence on the application from you Ms James or Ms Smart? Evidence as distinct from argument? SMART: No, not from me your Honour. HIS HONOUR: Now what do you say about that Ms James, are you ready to argue it? JAMES: I am able to argue it now your Honour. HIS HONOUR: You are? JAMES: I am, yes. Your Honour we submit that this is a matter in which the Court should otherwise order. Whilst there has been a compromise by the defendant whilst the plaintiff has not been successful this was a walk-away offer and in those circumstances it's subject to different assessment. HIS HONOUR: Yes there's some authority on that isn't there? JAMES: Yes there is, I have a case of Regency Media and I have a copy for the Court if that's of assistance. HIS HONOUR: Regency Media v AAV Australia [2009] NSWCCA 368, yes, where do I look? JAMES: I submit that the paragraph that assists us the most is [31]. HIS HONOUR: All right, let me just go to that and have a look. JAMES: And I do apologise because that refers to another case of Robb Evans that I don't have. HIS HONOUR: Yes it does but they've picked up what Basten JA said in Robb Evans, yes. In fact it's referred to at [20]. No, no, that must be a reference to [20] of Robb Evans, yes go on. So you say that it was a reasonable case to run and indeed you've got a finding-- JAMES: It was and we've been successful on breach. It was a difficult issue on causation. It involves some detailed assessment in respect of credibility of witnesses-- HIS HONOUR: I'll stop you there. Ms Smart, what do you say? I'm inclined to agree with Ms James. Do you want a moment to look at those authorities? SMART: Your Honour I'm just considering, this appears to relate to the costs of an appeal. HIS HONOUR: Yes by all means, yes, no take your time. SMART: Which isn't the case in this matter. The rule provides that unless-- HIS HONOUR: Just remind me the rule, I've brought the practice down. SMART: It's unless the Court in an exceptional-- HIS HONOUR: No, no, sorry, it's 20/26 is it? SMART: Yes your Honour. HIS HONOUR: Just let me look at the rule. I'm just looking at that commentary in the rule, the procedures intend and encourage true compromise reasonable offers. But I think it was quite in a sense a reasonable offer, but I'm not sure that I would be inclined to allow it to trigger the mechanism in this case because there was an arguable case for Mr Gilbey and as Ms James has pointed out he in fact succeeded on breach, failed on causation. But I'll hear you. SMART: I suppose your Honour where I'd start is there is a presumptive rule in the defendant's favour and there have to be unusual circumstances in order for your Honour to find contrary to that finding. JAMES: If your Honour's looking for the rules that relate to the actual consequences they're in 42.13 and specifically 42.15. I think Capital Way is the one where it's the defendant's offer. HIS HONOUR: So it's a question of unless I order or otherwise, so it's an otherwise order situation. JAMES: Yes your Honour. HIS HONOUR: I see, yes Ms Smart? SMART: Your Honour I would draw your attention to the fact the offer of compromise it was made at a stage when the parties were aware of the evidence. They were aware of the nature of what would be said by witnesses. There were reports served, there were police documents available. It's not a case as in Regency where the offer was made at such an early point in the proceedings that in effect the plaintiff was unable to assess the validity of the offer or the nature of whatever his case would end up, it was made at a late stage in the proceedings comparatively and a stage at which a fair assessment could be made. If the defendant is not able to have the benefit of an offer of this kind made at this stage in the proceedings then there are a few cases in effect where the defendant would be able to make such an offer and be successful in relation to a costs application and we'd argue that it's appropriate for the order as per the rules to be applied in this case. HIS HONOUR: Ms James, what do you say about that that it was made at a later stage when parties knew about the strength of the cases? JAMES: We do say your Honour that these walk away type offers are in a particular class of their own because they do remove really any real element of compromise which is a necessary requirement in an offer of compromise. Now this wasn't an open and shut case by any means as again and not to belabour it the plaintiff was successful on breach. The whole case essentially turned on witness credibility that the plaintiff was not able to make an assessment of I think it's Ms Sweeney's credibility and even had very little information in my submission about her evidence. So this is that type of case that required specialist-- HIS HONOUR: Stop right there, I don't need to hear you any further. 66Ms T. F. Smart who appears for the defendant on the judgment has tendered exhibit C1 which concerns an offer of compromise. She asks for an order that the plaintiff pay her client's costs on an indemnity basis since the offer of compromise. The offer dated 4 February 2011 was in terms of a verdict for the defendant with each party to bear their own costs. The plaintiff has of course achieved a result less successful than that. 67Ms Smart argues that the offer was genuine and made at a quite late stage in the proceedings before the hearing and the parties were aware of the evidence. She argued that if on offer such as this was not effective in a case such as this then, she asks rhetorically, when would they be effective? 68Ms K James on the other hand, on behalf of the plaintiff, argues that it was not a real offer of compromise. This was not an open and shut case as borne out by the fact that her client was successful on the issue of breach of duty of care. She pointed out that, as it turned out, much turned on the credibility of witnesses including, as I have found, answers given in cross-examination. 69I think on balance Ms James is right and I will not order her client to pay costs on an indemnity basis. 70I order the plaintiff to pay the defendant's costs on an ordinary basis.