Dent v Calcagno

Court of Appeal (NSW)|2016-08-24|Before: Basten JA, Macfarlan JA, Mr P

Solicitors: Grant Galvin, Hall & Wilcox Lawyers (Appellant) Ray Abbas, Gerard Malouf & Partners (Respondent) File Number(s): 2015/378154 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2015] NSWDC 308 Date of Decision: 26 October 2015 Before: Mahony SC DCJ File Number(s): 2013/43273

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

Factual background

The finding as to liability turned on the conduct of the two drivers over a period of less than 30 seconds prior to the collision. The course taken by the respondent during that period had to be determined as a matter of inference from limited objective circumstances. The appellant did not see the respondent and the respondent suffered amnesia as a result of his head injuries. He therefore did not remember anything from when he was at home working on his motorcycle, until he woke up in Westmead Hospital. [2]
The appellant ran beef cattle on a property which straddled Queens Pinch Road. On the afternoon in question, whilst driving back to her home, she pulled in to a gateway on the western side of the road in order to check cows which were due to calve. She pulled off to the left into what was known as the entrance to "the dairy", although there was no longer a dairy. [3] Deciding that it was "a bit early" she did not get out of the vehicle but decided to return home. She checked for approaching traffic, looking south down Queens Pinch Road, put on her right hand indicator and started the final 100 metre drive back to her home, which was on the eastern side of the road.
The evidence established that, when she looked back towards the south from the entrance to the dairy, her sightline was some 440 metres. There was no traffic heading north as she pulled out. Her right hand indicator automatically switched off as she straightened her vehicle when back on the sealed road.
The appellant was driving a Ford Maverick utility with a cabin and open tray behind the cabin. The appellant gave evidence that she proceeded north along the road at a speed of approximately 10-15 kph, put on her right hand indicator again, checking for southbound traffic which might be coming around a curve in the road not far ahead and then proceeded by a "gradual inclination" across the southbound lane (unmarked) and into her driveway. It was at the point at which she left the sealed roadway for the gravelled driveway that the motorcycle collided with the driver's side door of her vehicle.
The trial judge accepted her evidence that she travelled the distance of approximately 100 metres from the dairy gateway to her driveway at a speed of 10-15 kph. At that speed, the trip would have taken approximately 25-30 seconds. A vehicle travelling at close to 100 kph would have covered some 700-800 metres in that time. It followed that the respondent's vehicle would not have been visible to the appellant when she pulled out of the dairy gateway. She conceded that she did not look in her rear vision mirror before commencing the right hand turn into her driveway. However, had she done so, she should have seen the motorcycle behind her.
Although there was a challenge to her evidence that she engaged her right hand indicator before turning into her driveway, the trial judge accepted her evidence that she did; a significant issue remained, however, as to when she took that step.
The trial judge identified the two significant factual issues with respect to liability as: "(1) For how long was the defendant's indicator activated prior to impact?; and (2) What was the speed of the plaintiff before he braked?" [4]
The information available with respect to the respondent's driving of the motorcycle derived from a number of sources. First, the respondent himself gave evidence as to his practice in driving on that section of Queens Pinch Road, including a statement which the judge accepted that he would travel at "between 90 to 100 kph maximum along that section of the road". Secondly, a crane driver gave evidence that he was travelling at approximately 80-85 kph along the road that afternoon and the motorcycle overtook him travelling at what he estimated to be approximately 100 kph. [5] Thirdly, there were the skid marks left by the motorcycle as the respondent made a final and unsuccessful attempt to avoid a collision. Fourthly, there were also skid marks left by the appellant's vehicle at the point of collision. Although the impact occurred at an angle, the appellant said that the collision shifted her vehicle in a northerly direction.
Each party briefed an expert with qualifications in motor accident reconstruction, namely Mr Jamieson for the respondent and Mr Keramidas for the appellant. The evidence also included a statement of Senior Constable Crome, who has expertise in crash investigation. The conclusions of the experts were somewhat imprecise. For example, Mr Keramidas assessed the pre-braking speed of the motorcycle at between 78 and 93 kph, while Mr Jamieson considered it to be "within the lower end of that range". The trial judge's findings were not stated with any greater degree of precision. [6]
The appellant identified the point at which she engaged her right indicator, prior to turning into her driveway, as being alongside a yellow traffic advisory sign indicating a curve ahead. That sign was measured as 27 metres south of the appellant's driveway.
In a supplementary report, Mr Keramidas stated that the experts agreed that "the time difference between the indicator being activated 10 metres from impact or adjacent to the hazard warning sign, is significant, if not critical, to the analysis of the incident circumstances." [7] The trial judge accepted that view.

Resolution of issues on liability

The trial judge made a finding with respect to the time at which the indicator was activated. He said that he did not accept the appellant's evidence in that regard, but concluded that it was activated "approximately 10 metres to the south of the southern edge of that driveway." [8]
For reasons which will be explained, that finding should not be accepted. However, in determining the liability of the appellant, the trial judge reached the following conclusion: [9] "As agreed by the experts called on behalf of the parties, had the defendant [appellant] looked to the rear, by use of mirrors or otherwise, immediately before engaging her right indicator, she would or should have observed the motorcycle approaching or overtaking her vehicle. Its headlight was on and there was no reason why, had she looked, she would not have seen the plaintiff's [respondent's] motorcycle, and stopped her slow moving vehicle before turning thereby avoiding a collision. By not doing so, she breached her duty of care."
It should be accepted that the appellant should have looked in her rear vision mirror prior to making the right hand turn, although it must also be accepted that her primary focus of attention would have been on the road ahead, because there was a curve in the road to the north and she was about to cross in front of any southbound traffic. The problem with the conclusion as to liability in the form adopted by the trial judge, was its imprecision, which did not demonstrate that the breach was a contributing cause to the accident. It will be necessary to consider how the trial judge addressed the question of causation shortly.
Before addressing the two critical issues, it is appropriate to note that the appeal can be resolved within a narrow compass because the judgment of the trial judge was well structured and the reasoning readily accessible. Further, findings of fact were identified with clarity, including the limits of certainty imposed by the very real limitations of the evidence presented at trial.

(a) finding as to activation of indicator

The evidence given by the appellant as to when she activated her indicator involved four elements, of which only one could be identified with certainty, namely (a) the first reference point, being the yellow traffic sign, (b) a second reference point, being the point at which she commenced her turn into her driveway, (c) the distance from the commencement of her turn to the point of impact and (d) the time during which the indicator was operating.
The point which was not in doubt was the distance between the traffic advisory sign and the driveway, which was measured at some 27 metres. The joint report of the experts expressed agreement that if the appellant had activated her right turn indicator for at least five seconds before impact, the crash was probably avoidable by the respondent. [10] The experts further agreed that if the appellant had been travelling at a speed of between 10 and 15 kph, and activated her indicator 27 metres from the point of impact, it would have been visible for a period between 6.5 and 9.7 seconds. [11]
These opinions appear to have been based on the assumption that the appellant, if she had activated the indicator at least 6.5 seconds before the impact, could reasonably have continued her turn into the driveway. However, no finding was made to that effect, once the trial judge had rejected the assumption as to the point at which the indicator was activated.
The finding that the indicator was not activated at or near the yellow advisory sign was rejected in three steps. The first step involved an explanation that the evidence given by the appellant was "unreliable" for identified reasons. Thus, the trial judge stated: [12] "The evidence established that estimates given by drivers of moving vehicles as to time and distance in a dynamic situation such as one leading to a major collision, are notoriously unreliable. In this case, no issue has been raised as to the credit of the plaintiff, who had no recollection of the accident as a result of his brain injury, nor the defendant, who was clearly shocked by the incident, and made frank concessions, particularly about her failure to look in the rear vision mirror, or side mirror, of her vehicle at any relevant time before the collision. The defendant's evidence as to when she activated the right hand blinker to signal her intention to turn right into the driveway at number … was, however, unreliable for the following reasons."
It will be convenient to return to the six reasons identified shortly. The second step involved a calculation that activation occurred "at a distance of approximately 10 metres to the south of the southern edge of that driveway" and "[a]llowing for an additional three metres of travel by the defendant's vehicle once she commenced her turn into the driveway", the total distance travelled was 13 metres. Finding that the right hand indicator was activated a total of 13 metres (and thus approximately three seconds) prior to the collision, the judge concluded there was insufficient time for the respondent to take evasive action. [13]
The third step involved the trial judge addressing an alternative reading of the appellant's evidence, that when she spoke of activating the indicator 10 metres before her turn, that was not inconsistent with activating the indicator at the 27 metre mark before the driveway, "as that would involve the vehicle turning in a shallow arc over a distance of 17 metres until it reached the driveway." The judge stated that that assumption was "not consistent with the objective evidence, namely, the skid and gouge marks referred to above, nor her evidence of turning into the gateway of her property." [14]
Dealing with the last proposition first, although the distance was not precisely determined, the submission that the appellant approached her driveway in a "shallow arc" was based on her express evidence, elicited in cross-examination, to the following effect: [15] "Q. You'd agree with me, would you not, that it was rather than a right angle, that is 90 degrees or close to it, the turn that you made into the driveway it was a gradual inclination across the roadway? … A. Yes."
Further, the skid and gouge marks, as identified by the trial judge in his express findings, [16] indicated "both front and rear wheel braking of about 20 to 21 metres, on the eastern carriageway", that is, on the right hand side of the road, heading north. The judge also accepted that the motorcycle collided with the appellant's vehicle at an angle of 30 degrees, being that described by Mr Jamieson as a "glancing blow". [17] Leaving to one side the precise distance of the shallow arc, none of the evidence was inconsistent with the appellant's evidence that she activated her indicator 10 metres before commencing her turn.
It is then necessary to return to the six matters relied upon by the trial judge as demonstrating the unreliability of the appellant's evidence that the indicator was activated at the yellow sign. His Honour explained the first matter as follows: [18] "(1) When first asked by the police at what stage in her journey between the two gates did she put her indicator on, the defendant answered 'probably at the yellow sign out here.' She was then asked: 'Q: Do you have a memory of when you put it on? A: Well I can remember going like that to turn it on. Q: Okay. A: But I just turned into the gate and he just hit me.'"
The precise element of unreliability demonstrated by this passage was not articulated, but presumably the point was the appellant's use of the word "probably" and her failure to answer directly the question as to whether she had a memory of turning it on. These were issues which could have been taken up in cross-examination, but were not.
The second element of unreliability was said by the trial judge to derive from another passage in her police interview: "(2) Notwithstanding that the yellow advisory sign that the defendant was referring to was situated 27 metres to the south of the driveway into which she was about to turn, she was asked: 'Q[159]: Then how long after you put your blinker on did you turn? A: I probably came down the road probably 10 metres, then when I went to turn into the gate, that's when he hit the door.'"
There was certainly a lack of precision in this evidence. [19] That passage was, however, clarified by the interviewing officer in the following exchange: "Q160: OK. OK. So just so I've got that straight mate, you turned your blinker on at the yellow sign? A: Yeah, thereabouts. Q161: Yep. And then travelled ten metres? A: Yeah, ten or fifteen. Q162: And then you turned, you commenced your turn into the gate? A: Into the gate. Q163: Is that, is that accurate? A: I do it every day."
There was no reference in the recorded interview to the 27 metre distance between the yellow sign and the driveway, nor any indication that the interviewing officer was aware of that distance.
The third point, which paraphrased the extract set out immediately above, but which the trial judge did not set out, was in the following terms: "(3) The defendant repeated her evidence that she had travelled 10 metres after she had turned her blinker on, before she turned into the driveway. She later described that process by saying: 'But all I, put the blinker on, turned into the gate and the next things he bounced off the door and he was gone … that's what I remember.'"
It is by no means clear how this passage demonstrated unreliability with respect to the statement that the indicator was activated at the yellow sign. The further answer was given at Q320 in response to a question, in very broad terms, as to cause of the accident, to be found at Q315.
The next passage relied upon came immediately after that just quoted and was in the following terms: "(4) The defendant was then asked: 'Q: How long was your blinker on for? Like I think we said, I think you said 10 metres? A: Well, … Q: How many seconds though would it have been on for? A: Well I don't know, probably four, five, six. Q: So you say four, five or six seconds before you started to turn. Is that what you're saying? A: Yeah. Q: Four or five seconds passed and then you started your turn. Is that, is that what you're saying? A: Well I had the blinker on. Q: Yep. A: I approached the gate. And I turned and that's when he bounced off the door. Q: Yep okay. So four or five seconds your blinker was going for and I think about 10 metres you told me … A: Yeah, about 10 metres.'"
It is clear that in this passage the officer was putting back to the appellant what he understood to be the key parameters in relation to activating the indicator. The timing and the distance were both directed to the period before she started to turn and there was clearly an element of imprecision. If she had been travelling at 15 kph, she would have travelled 20 metres in five seconds, not 10 metres.
The next passage related to the appellant's evidence at trial: "(5) The defendant's evidence in respect to this issue is set out at para [43] above. In that evidence she said she had the blinker on for six or seven seconds. In cross-examination, the defendant said it was six or seven seconds before impact. She said it was engaged at the sign until the entrance of her property, a distance of '20-odd' metres, which was a sufficient warning to any overtaking vehicle of her intention to turn right."
In order to put the paraphrase in context, it is appropriate to set out the evidence which had been identified by the trial judge in the following terms: [20] "The defendant gave evidence that she did not have a routine for driving between the dairy and her home. She was not wearing a seatbelt on that day but did not concede that she never used a seatbelt when driving on that road. In respect of her evidence that she had the right blinker on for six or seven seconds prior to impact, she gave the following evidence: 'Q: Do you say that you had it on for six or seven seconds from the time that you engaged it to turn right? A: Yeah, at the sign. Q: How far is the sign from the entrance to your property? A: 20 - odd metres. Q: So you would agree with me, would you not, that the maximum distance over which you had that right blinker engaged, if you had it engaged, was about 20 metres? A: Yes. Q: And was that sufficient, in your view, to indicate your intention to turn right if a vehicle was following behind you? A: Yes. Q: But you didn't know if there was a vehicle following behind you, did you? A: No. Q: And do you suggest to this court that having a blinker engaged for 20 metres would have been sufficient notice to a vehicle following you at, say, 100 km/h, that you were going to turn right? A: Yes.'"
This passage did not demonstrate unreliability. First, the appellant expressly affirmed that she had turned the indicator on "at the sign." She agreed that the distance over which the blinker was engaged was "about 20 metres", but it was not put to her that this was a different figure from the known distance of 27 metres. To the extent that she accepted the proposition that this was a sufficient warning to a following vehicle, that evidence was consistent with the views expressed in the joint expert report.
The trial judge's final step in the reasoning to unreliability was contained in the following passage: "(6) When cross-examined on the evidence outlined above in relation to the distance of 10 metres travelled before she turned into the gate, the defendant agreed that she had travelled 10-15 metres with her indicator on before turning into the gate (see [46] above). She also agreed that she did not follow her habit on this occasion when she turned into the house, and that the journey she was undertaking was a routine journey from one part of the dairy property to the homestead. In that routine, she agreed that she had admitted the vital step of looking around to see if anyone was coming from behind."
The implications to be derived from these separate elements were not identified. They must be considered in turn. The first proposition related to evidence set out by the trial judge at [46] in the following terms: "Q: That's the fact of the matter? You travelled 10-15 metres with your indicator on and then turned into the gate? A: Yep."
This material demonstrated no degree of unreliability beyond the imprecision already identified. This question and answer occurred in the course of the cross-examiner putting to the appellant in the witness box the answers she gave to the police officers in respect of questions 160-162 in the police interview. [21] The question relied upon and the previous two questions taken together read as follows: [22] "Q: And 'Yep and then travelled 10 metres? A: Yeah, 10 or 15,' correct? A: Yeah. Q: Then 'You turned, you commenced your turn into the gate? A: Into the gate', correct? A: Yeah. Q: That's the fact of the matter? You travelled 10 to 15 metres with your indicator on and then turned into the gate? A: Yep."
It would be wrong to conclude that these three answers were inconsistent. The fact that the cross-examiner, probably not deliberately, omitted the word "commenced" once he sought agreement with the fact of the matter (as opposed to the fact that she had given those answers to the police) carried no weight. Thus, her evidence was consistent with and accepted that which she had said to the police. There was no additional element of unreliability.
The next aspect of this passage is that the appellant conceded that she did not follow her habit of checking the road behind before turning into her home. The inference implicit in this statement, but not explored, was that she also departed from her usual practice of turning her indicator on, either at all, or at the yellow sign.
If this last element were intended to demonstrate unreliability, it required further explication. In so far as it was expressly put to her in cross-examination that she failed to follow her habit in activating the blinker, she expressly denied it. [23] The trial judge did not disbelieve her in that regard and accepted that she put her blinker on. Accordingly, the only question was when she activated the blinker.
In this regard, the cross-examiner was content to extract her agreement with her statement to the police. At no stage was it put to her that to have activated the indicator 10-15 metres before commencing her turn was inconsistent with having activated the indicator at the yellow sign or thereabouts. At no stage was her evidence as to the commencement of the turn explored in cross-examination, except to elicit the evidence that it was not a right angle turn but a "gradual inclination" across the roadway, being the cross-examiner's words. [24]
Not only did the factors relied upon by the trial judge not demonstrate unreliability, but the finding that the judge made, namely that the indicator was in fact turned on, not at the yellow sign, but 10 metres prior to the southern edge of the driveway, was never put to the appellant in cross-examination. Nor, on a fair reading of her evidence, was it accepted by her either in the police interview, her examination-in-chief or her cross-examination. Accordingly, the finding of the trial judge in this respect should not have been made. If it were in fact a critical issue to the determination of the respondent's case, then it cannot be said that the respondent established on the probabilities that the appellant's indicator was not activated at the yellow sign. He therefore did not establish that she failed to activate her indicator at a point at which he would have had opportunity, on the evidence, to avoid the collision.

(b) failure to check the road behind

The finding as to liability, set out at [16] above, identified the breach of duty as a failure to look in the rear vision mirror prior to commencing the right hand turn. It may be accepted that, whilst travelling slowly on a country road with a known speed limit of 100 kph, the appellant should have checked her rear vision mirror (or side mirror) before commencing the turn. It may also be accepted that, had she done so, she would (or at least should) have observed the motorcycle approaching. [25] However, a further critical element in the finding was that she would have "stopped her slow moving vehicle before turning". [26] Why she would have stopped and whether she should have stopped were not explored in the evidence, nor in the reasons for judgment. Whether she would have stopped, or not commenced her turn, or should have done either of those things, would depend on where the motorcycle was when she ought to have observed it. The trial judge made no finding in that regard; nor on the evidence could he have done so.
On one view, based on the evidence of the experts, to allow her to turn safely she needed to give at least 5, if not 6 or 7, seconds warning of her intention. Had she done so, the motorcycle, then travelling at around 90 kph, would have been more than 150 metres behind her. There was no evidence to suggest that the respondent would then have been on the wrong side of the road, rather than approaching her from the rear. As she could safely turn in those circumstances, there is no reason why she should have stopped - indeed, stopping in such a situation would probably have been extremely dangerous and a breach of duty.
An alternative interpretation of the judge's finding was that she should have looked in her rear vision mirror immediately before she actually engaged her right hand indicator. On the view accepted by the trial judge, that was 13 metres before the point of impact, a distance which she would have covered in three seconds.
Leaving to one side the reason why that conclusion of fact should not be accepted (as explained above), there was a total absence of evidence as to what the appellant should have done in that circumstance. First, she would clearly have had to make an assessment of the situation. The experts accepted, in relation to a motorist perceiving a danger, that a 1.5 second reaction time should be accepted as reasonable. However, there are two further variables in this circumstance. The first is that the appellant, looking in a rear vision mirror or a side mirror, must be in a position to assess the speed at which the approaching vehicle is closing on her vehicle. It may very much be doubted that that can be done instantly and instinctively. Mr Keramidas described his own calculation of the distance at which the motorcyclist approaching from the rear would have "detected that he was closing rapidly on the Ford utility" and further, the point at which he would have been expected to have identified "that the rate of closure was 'dangerous'." [27] Absent expert assistance, the court would not be able to embark on calculations with respect to the perception of a driver, relying on the rear view mirror, to assess how long it would take to identify how fast the approaching vehicle was closing on her vehicle. Nevertheless, common sense would suggest that given the nature of the image obtained in a rear vision mirror it would require measurable time.
The driver of the slow moving vehicle then has to make a decision in an emergency (not of her own making) as to what to do next. (It is not dissimilar to the choices faced by a pedestrian seeking to cross three lanes of traffic and reaching the middle of the second lane before realising that a fast moving vehicle in the third lane will prevent him crossing safely. [28] ) To stop will decrease the time it will take the approaching vehicle to reach her vehicle; to deviate from her current course may be to confuse the motorcyclist as to her intentions; if both continue on the same course that may lead to a collision.
It seems that the trial judge was able to reach no answers in relation to this situation on the evidence before him. He said that what the appellant would have observed, had she looked when she should have, was "the motorcycle approaching or overtaking her vehicle." [29] The use of the disjunctive "or" is telling: the course she should have taken would almost certainly be different depending on whether the motorcyclist was already overtaking, or was approaching from behind. Understandably, there was no finding in that regard, partly because there was no finding as to the precise time at which she should have looked back, but also because there was no precise evidence as to where the motorcycle was at any particular time.
The trial judge addressed the question of causation in the following paragraph of the judgment, first referring to s 5D of the Civil Liability Act 2002 (NSW). His conclusion was expressed in the following terms: [30] "The appropriate test for factual causation is the 'but for' test, and I find in the circumstances pertaining here, that test if [is?] satisfied and the scope of liability is clearly established. I therefore find that the defendant was liable for the plaintiff's injuries."
The "circumstances pertaining here" required identification of the unresolved factors noted above, before any conclusion could be reached with respect to causation. That the unresolved factors could not be resolved on the evidence must mean that the respondent, having the burden of proof, has failed to demonstrate causation on the balance of probabilities. However, once the finding of the trial judge with respect to the activation of the indicator is rejected, it is open to this Court to reconsider these factors on the alternative basis noted above.

Conclusions

Reconsideration allows the question of causation to be determined affirmatively, rather than left uncertain, but against the interests of the respondent. The trial judge accepted the evidence of the respondent as to his usual practice, which was to the effect that if he identified a slow moving vehicle ahead (travelling at approximately 15 kph) and could perceive no risk in overtaking it (presumably referring to oncoming traffic) and could see no indication that the driver intended to do anything other than continue in a straight line, then he would "safely overtake confidently at between 60 and 70 kph". [31]
Assuming that he was approaching the appellant's vehicle at the bottom end of the range calculated by the experts, and assuming that the appellant, in the exercise of reasonable care, looked in her rear vision mirror 6 or 7 seconds before commencing her turn, she would have seen a motorcycle more than a 100 metres behind her with ample opportunity to avoid her if she commenced a gradual inclination across the road with her right hand indicator going. (There was, as senior counsel for the appellant noted, no evidence to suggest that the respondent had his right hand indicator flashing or had given any other indication of an intention to overtake.) Accordingly, there would have been no breach of duty in continuing on her intended course. In short, the failure to take the specific step identified as a breach of duty, and look in the rear vision mirror prior to indicating her intention to turn right, was not causative of the accident.
In these circumstances, the respondent did not establish liability. The appeal should be upheld and the judgment in favour of the respondent in the Court below should be set aside. In place thereof, the proceedings should be dismissed. The respondent must pay the appellant's costs at trial. He should also pay the appellant's costs of the appeal, but should have a certificate under the Suitors' Fund Act 1951 (NSW).
It follows that the cross-appeal brought by the respondent should be dismissed. Because it related to the question of contributory negligence, which was also a ground in the appellant's appeal, it may be assumed that the cross-appeal did not significantly increase the appellant's costs. There should be no specific order as to the costs of the cross-appeal.
MACFARLAN JA: I agree with the judgment of Sackville AJA and subject to the terms of that judgment, with the judgment of Basten JA. I add the following observations.
As is apparent from their Honours' analyses, the success or failure of Mr Calcagno's claim was dependent upon the length of the period for which Ms Dent had her vehicle's right indicator activated prior to her making the right turn into her driveway. For the reasons given by their Honours I agree that the primary judge's finding that Ms Dent commenced to signal only when she was about 10 metres from the southern edge of her driveway cannot be sustained. The primary judge did not make any adverse credit finding in relation to Ms Dent and there was no other basis for treating her evidence that she commenced to signal when adjacent to the yellow sign (proved to be about 27 metres from the driveway) as unreliable. Mr Calcagno was not able to contest this evidence as the injuries he suffered in the accident prevented him recalling what occurred.
Once it is accepted that Ms Dent commenced to signal about 27 metres before commencing her turn and that she was travelling slowly, it follows, for the reasons given by Basten JA and Sackville AJA, that she was not negligent in failing to check the road behind her in her mirrors: the period of her signalling gave any vehicle approaching from behind a sufficiently timely indication of her intentions.
In these circumstances, Mr Calcagno's negligence claim against Ms Dent must fail and the appeal must be allowed.
Whilst I consider this to be the correct conclusion on the evidence before the primary judge, I am left with some unease that its corollary is that Mr Calcagno rode his bike in an inexplicable fashion. If he had ample warning of Ms Dent's intention to make a right turn, why would he have attempted to overtake her vehicle? The road was straight, it was daylight, there were no other vehicles on the road, Mr Calcagno was riding a motorbike rather than driving a car (in which the possibility of him being distracted by a mobile phone or the like was much greater), there was no finding that Ms Dent's indicator light was not of ordinary prominence when illuminated and it is clear that Mr Calcagno in fact saw Ms Dent's vehicle as his bike skid marks indicate that he was attempting to overtake when the collision occurred.
Mr Calcagno's injuries precluded him giving evidence, possibly different to that of Ms Dent, about when she activated her turn signal. As a result he failed to prove negligence on her part.
SACKVILLE AJA: I have had the advantage of reading the judgment of Basten JA in draft. I agree with the orders proposed by his Honour and, subject to what follows, generally with his reasons.

The Pleadings

The respondent's case as originally pleaded in the Statement of Claim was that the appellant had indicated that she was turning left, but instead turned right without warning. On the first day of the trial, senior counsel for the respondent sought leave to amend the Statement of Claim by the addition of further particulars. The application, although made late, appears to have been prompted by the appellant's admission in her interview with Detective Senior Constable Holgate on 19 March 2012 (the day of the accident) that she had not looked in the rear vision mirror immediately prior to making the right hand turn into her driveway.
The primary Judge granted the application to add the following particulars: "(g) Failure to make any or any adequate observation as to the presence of the vehicle as approaching from behind before executing a righthand turn across the path of any such vehicle. (h) Failure to consult her internal or external rear view mirrors before executing a righthand turn across the path of any vehicle that may have been approaching or overtaking her vehicle, from the rear. (i) Failure to make an observation to the rear by looking to the rear through the rear window or otherwise before executing a righthand turn across the path of any vehicle that may have been approaching or overtaking her vehicle from the rear. (j) Making a right-hand turn across the path of another vehicle which was overtaking. (k) Failing to keep a proper lookout." The trial proceeded on the basis of these particulars.

The Primary Judgment

After considering the evidence, the primary Judge made factual findings, as follows: [32] "(1) The distance of the mid-point of the dairy entrance to the driveway of the [appellant's] home was approximately 100 metres. (2) From the driveway of the dairy to the south, there was a clear sight line of 440 metres. (3) From the driveway of number 823 [the home], the sight line to the south was 540 metres. (4) From the south towards the dairy, Queens Pinch Road had a slight downhill grade of 1.5 per cent. At a point between the dairy and number 823, that grade became 4.5 per cent. Thus, there was a shallow crest in the roadway approximately 60 metres to the south of number 823. (5) At a point 27 metres to the south of the driveway at number 823, on the western side of Queens Pinch Road, there was a yellow coloured traffic advisory sign for vehicles travelling north. (6) Opposite number 823, was a gate on the western side of Queens Pinch Road with a gravel turnout between the paved surface of the roadway and the gate. (7) I find that the [respondent] was riding his motorcycle north on Queens Pinch Road either at, or within the speed limit of 100 km/h for that road. (8) I find that the [appellant], when leaving the driveway to the dairy and before driving onto Queens Pinch Road, looked to the south and saw no vehicle on Queens Pinch Road heading north. (9) I find that the [appellant] activated her right blinker before manoeuvring her four wheel drive vehicle onto Queens Pinch Road, but that the blinker de-activated shortly thereafter automatically. (10) I find the [appellant] accelerated her vehicle from stationary to travelling at 15 km/h north on Queens Pinch Road. (11) I find that the [appellant] intended to turn right into the driveway of number 823 Queens Pinch Road, and prior to doing so, she activated her right blinker and engaged first gear, thereby slowing her vehicle speed down. (12) I find that at no time prior to the impact did the [appellant] look in her rear vision mirror or side mirrors, for vehicles travelling behind her, after leaving the dairy. (13) I find that the point of impact between the vehicles was on the eastern side of Queens Pinch Road, adjacent to the southern border of the gravel driveway entrance to number 823, just to the north of the termination of the motorcycle's skid mark. This was defined by the existence of the gouge mark identified by police marker 'F'. (14) At that point in time, the [appellant's] vehicle was turning into the driveway, and it was placed almost fully across the eastern side of Queens Pinch Road. (15) The motorcycle collided at a relative angle of 30 degrees between it and the [appellant's] vehicle. (16) The impact was a severe impact of considerable force, forcing the [appellant's] vehicle to the north of its intended course of travel. (17) Following impact, the [respondent] was thrown from his motorcycle in a generally north-easterly direction until he collided with the northern gatepost to the property. (18) The [appellant] braked heavily, causing her vehicle to skid to a stop, facing generally north-east across the driveway. (19) The [respondent's] motorcycle left skid marks indicating both front and rear wheel braking of about 20 to 21 metres, on the eastern carriageway. (20) Prior to the collision, the headlight on the motorcycle was on. (21) I find that had the [appellant] looked to the rear by means of her rear view and/or side mirrors, immediately before she engaged her right indicator, she would or should have observed the [respondent's] motorcycle approaching or overtaking her with its headlight on (thus making it more visible to her). (22) I find that the [respondent] slowed his motorcycle's speed as he approached the [appellant's] vehicle from behind. (23) I find the [respondent] commenced to overtake the [appellant's] vehicle by proceeding on to the eastern side of Queens Pinch Road. (24) At a point just to the south of the skid marks made by the motorcycle braking, the [respondent] perceived that the [appellant] was turning her vehicle into the driveway of number 823 Queens Pinch Road and undertook emergency braking. The collision was, at that point, unavoidable. (25) The [respondent] was a very experienced motorcyclist whose usual practice was to overtake vehicles in front of him when he considered it safe to do so."
As Basten JA has pointed out, his Honour identified two significant factual issues for determination: [33] "(1) For how long was the defendant's indicator activated prior to impact?; and (2) What was the speed of the plaintiff before he braked?"
The primary Judge then considered the relevant legislation and legal principles. In the course of doing so, he reproduced several provisions of the Road Rules 2008 (NSW) in force at the time of the accident, as follows: "48 Giving a right change of direction signal (1) Before a driver changes direction to the right, the driver must give a right change of direction signal in accordance with rule 49 for long enough to comply with subrule (2) … (2) The driver must give the change of direction signal for long enough to give sufficient warning to other drivers and pedestrians. 140 No overtaking unless safe to do so A driver must not overtake a vehicle unless: (a) the driver has a clear view of any approaching traffic, and (b) the driver can safely overtake the vehicle. 142 No overtaking to the right of a vehicle turning right etc (1) A driver must not overtake to the right of a vehicle if the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal. 144 Keeping a safe distance when overtaking A driver overtaking a vehicle: (a) must pass the vehicle at a sufficient distance to avoid a collision with the vehicle or obstructing the path of the vehicle, and (b) must not return to the marked lane or line of traffic where the vehicle is travelling until the driver is a sufficient distance past the vehicle to avoid a collision with the vehicle or obstructing the path of the vehicle."
As Basten JA has explained, the primary Judge gave six reasons for finding that the evidence of the respondent as to when she activated the right hand blinker was unreliable. [34] His Honour then made a critical finding: [35] "I therefore do not accept the [appellant's] evidence as to the time her right indicated was illuminated. Having regard to all of that evidence, I find, on the balance of probabilities, that the [appellant] activated her right hand indicator, indicating her intention to turn into the driveway of 823 Queens Pinch Road, at a distance of approximately 10 metres to the south of the southern edge of that driveway. At that time, her vehicle was travelling 15 km/h and therefore the time period during which the right hand indicator was activated prior to the [appellant] commencing her turn, would have been two and a half seconds. Allowing for an additional three metres of travel by the [appellant's] vehicle once she commenced her turn into the driveway, would result in a time approximating three seconds. On that analysis, there was insufficient time for the [respondent] to take evasive action, as he was already in the process of overtaking the [appellant's] vehicle."
The primary Judge addressed the speed at which the respondent was travelling as follows: [36] "It is impossible to make a concise finding of the exact speed of the motorcycle, but it is unnecessary to do so. What the expert evidence does confirm is that the [respondent] had slowed his motorcycle from the speed at which he had been travelling, namely, at approximately 100 km/h, which was the speed limit, down to a speed where he would have believed it was safe to travel to overtake the slow moving vehicle ahead of him. As outlined above, he was already on his incorrect side of the road, and inferentially, had commenced his overtaking procedure at the time when he perceived a hazard, namely, that the vehicle in front was about to turn right, and engaged in emergency braking of his motorcycle. Whilst it is somewhat speculative, one possibility is that the [respondent], having commenced his overtaking procedure, may have commenced to accelerate his motorcycle before engaging in emergency braking."
The primary Judge noted that both experts (Mr Jamieson and Mr Keramidas) agreed that the time difference between the indicator being activated ten metres from impact, or adjacent to the warning sign, was significant if not critical to the fact finding process. [37] Having found that the indicator had been on for only about three seconds prior to the impact, his Honour identified the relevant risk of harm for the purposes of s 5B of the Civil Liability Act 2002 (NSW) (CL Act) to be that the appellant: [38] "would make a right hand turn across the path of an overtaking vehicle, the presence of which she was not aware, because she at no time looked in her rear vision mirror or side mirrors, before turning. That risk was foreseeable and not insignificant."
It followed that a reasonable person in the appellant's position would have taken the precautions required by s 5B(1) of the CL Act: [39] "namely, to look in her rear vision mirror and side mirrors. As agreed by the experts called on behalf of the parties, had the [appellant] looked to the rear, by use of mirrors or otherwise, immediately before engaging her right indicator, she would or should have observed the motorcycle approaching or overtaking her vehicle. Its headlight was on and there was no reason why, had she looked, she would not have seen the [respondent's] motorcycle, and stopped her slow moving vehicle before turning thereby avoiding a collision. By not doing so, she breached her duty of care."

The Significance of the Critical Finding

The breach of duty alleged by the respondent was that the appellant failed to look behind her before executing the right hand turn. The respondent's case was that if the appellant had looked in the rear vision mirror she would have seen the motorcycle "approaching or overtaking her vehicle from the rear". The amended particulars to the Statement of Claim did not identify what the respondent should have done if she had seen the motorcycle approaching or overtaking her vehicle. However, the primary Judge appears to have thought that the respondent would have stopped her slow moving vehicle before turning and thus avoided the accident.
The respondent's case as pleaded did not link the appellant's failure to check whether vehicles were approaching from behind to the timing of the activation of the right hand indicator. Nonetheless it is clear that the case was conducted on the basis that it was crucial to determine when the indicator had been activated. It was for this reason that the primary Judge said that the first of the two significant factual issues was the length of time the appellant's indicator had been activated prior to impact.
Although the respondent's case was not based on an allegation that the appellant activated the right hand indicator too late, the reason why the respondent focused attention on that question is clear enough. If the appellant gave adequate notice of her intention to turn right, having regard to the particular conditions prevailing at the time, it would be difficult to conclude that she had breached her duty of care by failing to look behind her prior to commencing the right turn. The difficulty can be seen by reference to the Road Rules and the evidence of the experts. If the respondent gave adequate notice of her intention to turn right, she complied with the requirements of Road Rule 48. [40] It was not suggested that if she gave adequate notice of her intention, her failure to look in the rear vision mirror breached the Road Rules.
The fact that a driver is not in breach of the Road Rules does not necessarily mean that he or she cannot be found to be negligent. The question is what precautions a reasonable person in the position of the driver would have taken to avoid the risk of harm. [41] The answer must depend on the circumstances of the case. In this case, however, the evidence from the experts did not suggest that if the appellant had given adequate notice to following vehicles of her intention to turn right, the exercise of reasonable care also obliged her to look in the rear vision mirror to ascertain whether vehicles were in fact approaching or attempting to overtake.
Mr Jamieson, whose report was tendered on behalf of the respondent, proceeded on the basis that the appellant activated her indicator late. He interpreted the evidence to mean that the appellant activated the indicator 10 metres from the driveway. Since he assumed that the appellant's vehicle was moving at 15 km/h, this allowed only 2.5 seconds before impact. This was insufficient time for the motorcyclist to avoid the collision, given a reaction time of 1.5 seconds and a further 1.3 seconds to brake. (The report seems to have made the calculation on the basis that 10 metres was the distance between the point at which the indicator was activated and the point of impact.)
Mr Keramidas, whose reports were tendered on behalf of the appellant, assumed that she activated the indicator adjacent to the yellow advisory sign, about 27 metres from the driveway. Mr Keramidas also assumed that the appellant travelled at a constant speed of 15 km/h to the point of impact. On this basis, the indicator was activated 6.5 seconds prior to impact, at which point the motorcyclist, assuming he was travelling at 100 km/h, was about 150 metres south of the appellant's vehicle. Since the respondent had an uninterrupted view of the appellant's vehicle, this distance should have enabled the respondent to discern the vehicle and initiate a "pre-emptive response". Allowing for reaction time, the respondent had a minimum of 56 metres to adjust his speed and position to avoid a potential impact. Indeed, according to Mr Keramidas, had the motorcyclist maintained a straight path on the left hand side of the road, he would have avoided the collision, since the appellant's vehicle would have cleared the western half of the roadway.
The joint report of the experts recorded their agreement on the following matters: "9. It is agreed that if the [appellant] had activated her right turn indicator for at least 5 seconds before impact, the crash was probably avoidable, by the [respondent]. 10. Assuming the [appellant] was travelling at a speed of 10 to 15 km/h, 5 seconds of indicator activation equates to 14 to 21 metres. Therefore if she activated her indicator only 10 metres from impact, then at these speeds the crash was unavoidable. Put another way, assuming she activated her indicator only 10 metres from impact, her indicator would only have been visible between 2.8 seconds and 4.2 seconds before impact. 11. Assuming the [appellant] was travelling at a speed of 10 to 15 km/h, and that she activated her indicator 27 metres from impact then it would have been visible between 6.5 seconds and 9.7 seconds. 12. Had she looked to the rear [mirrors or otherwise], immediately before engaging her right indicator, then she would or should have observed the motorcycle approaching or overtaking her vehicle."
Doubtless reflecting the way the case was conducted, neither expert was asked whether, in his opinion, the appellant, assuming that she activated the indicator at the yellow warning sign, should have looked in her rear vision mirror before doing so.

Activation of the Indicator

For the reasons given by Basten JA, I do not think that the primary Judge's finding as to the point at which the appellant activated the indicator can stand. The primary Judge did not suggest that the appellant had not given truthful evidence. His Honour's assessment of her reliability on the issue of the activation of the indicator was influenced by what he interpreted as inconsistencies in her account.
In my opinion, the appellant's account was consistent throughout. She said in the police interview that she activated the indicator at the yellow warning sign. There was some variation in her estimates of the distance between the yellow warning sign and the driveway or the point at which she commenced her right hand turn. But that reflected her uncertainty as to the precise distance between those points, rather than a departure from her statement that she activated the indicator at the warning sign.
The appellant's position in cross-examination remained that she engaged the indicator at the yellow warning sign, as shown by this passage: "Q. You told my friend, Mr Deakin, that you had the blinker on for six or seven second, I think you said? A. Yes. Q. Is that before the impact with the cycle, the six to seven seconds that you're talking about? A. Repeat your question, please. Q. Certainly. That was before the impact with the cycle that you're talking about? A. Yes. Q. Do you say that you had it on for six or seven seconds from the time that you engaged it to turn right? A. Yeah, at the sign. Q. How far is the sign from the entrance to your property? A. 20-odd metres. Q. So you would agree with me, would you not, that the maximum distance over which you had that right blinker engaged, if you had it engaged, was about 20 metres? A. Yes. Q. And was that sufficient, in your view, to indicate your intention to turn right if a vehicle was following behind you? A. Yes."
The subsequent cross-examination of the appellant was undertaken by reference to the transcript of the police interview. The distances to which she was asked to assent were her estimates of the distance either between the activation point and the commencement of the right hand turn or between the activation point and the point of impact. (The cross-examination is not always clear.) I do not think that the appellant's evidence can be read as supporting the primary Judge's finding [42] that her vehicle travelled only 13 metres between activation of the indicator and the point of impact.
The appellant estimated the period of time during which the indicator was on at anything from four to seven seconds. It is hardly surprising that her estimates varied, particularly as she underestimated the distance between the warning sign and the point of impact. The variation in these estimates does not demonstrate or constitute significant inconsistencies in her account.

Finding as to Negligence

Once the appellant's evidence is accepted, it follows that she must have activated the indicator at least 6.5 seconds prior to impact. The likelihood is that the actual period was somewhat longer, because Mr Keramidas' calculations assumed that the appellant was travelling at a constant speed of 15 km/h (the upper limit of the appellant's own estimate of her speed). The appellant's evidence was that she slowed down to turn into the gate and put the vehicle into first gear. That evidence, which was not challenged, suggests that the vehicle was travelling at less than 15 km/h during the turn into the driveway. If that is correct, as I think it must be, the indicator was on for more than 6.5 seconds before the collision occurred.
The primary Judge's finding that the appellant was negligent was predicated on the anterior finding that she gave insufficient warning of her intention to turn right at the driveway. In my view, the question of whether the appellant breached her duty of care has to be approached on the following basis:

the appellant complied with the Road Rules in that she gave sufficient warning that she intended to turn right into the driveway;
the activation of the indicator gave the respondent sufficient time to avoid a potential collision assuming (as the primary Judge found) that he was travelling at about 100 km/h; and
there was no evidence from the experts that the appellant's failure to look behind her involved a departure from the standard of care reasonably to be expected of a driver in the appellant's position, given that she activated the indicator more than 6.5 seconds before the impact. In my opinion, these matters preclude a finding that the appellant breached the duty of care she owed to the respondent in the operation of her vehicle.

Causation

In view of this conclusion, it is not necessary to consider the question of causation. However, assuming, contrary to my opinion, that the appellant breached her duty of care, I agree with Basten JA that the evidence did not establish that the respondent's injuries were caused by the appellant's breach of duty. Once it is accepted that the appellant activated the indicator at least 6.5 seconds prior to the impact, the evidence does not enable a finding to be made that the collision would have been avoided had the appellant looked in her rear vision mirror before commencing the right hand turn.

Contributory Negligence

Since the appeal must be allowed for the reasons I have given, the correctness of the primary Judge's finding on contributory negligence does not fall for consideration.

Damages

In the event that the appeal on liability failed, the appellant challenged the primary Judge's award of $162,300 in respect of future paid care. (This award formed part of his Honour's assessment of the respondent's damages of $672,701. His Honour reduced this amount by 25 per cent, producing a verdict in favour of the respondent of $504,525.) Since the appeal should be allowed, it is not necessary to consider the appellant's challenge to the award in respect of future paid care.
Had it been necessary to address the issue, I would not have interfered with the primary Judge's assessment. His Honour accepted the respondent's evidence that he required assistance to cope with the heavier household and domestic chores and that there was no-one available to provide the required services gratuitously. [43] His Honour allowed four hours per week of paid care at $44.00 per hour for a period of 40 years.
It is true, as Mr Deakin submitted, that Professor Jones, whose report was tendered on behalf of the respondent, suggested that he required eight hours per month by way of domestic assistance. However, there was evidence from an occupational therapist that supported the primary Judge's approach.

Orders

The following orders should be made:
Appeal allowed.
Set aside Orders 1 and 2 made by the primary Judge on 18 December 2015.
In lieu thereof make the following orders:
Judgment for the defendant.
The plaintiff pay the defendant's costs.
Dismiss the cross-appeal.
The respondent pay the appellant's costs of the appeal.
The respondent have a certificate under the Suitors' Fund Act 1951 (NSW).
No order as to the costs of the cross-appeal.

Endnotes

Calcagno v Dent [2015] NSWDC 308 (Primary Judgment).
Primary Judgment at [5].
Tcpt, 28/10/15, pp 136(33) and 139(35)-(45).
Primary Judgment at [77].
Statement, Dale Menchin, 21 March 2012, par 6.
Primary Judgment at [96].
Primary Judgment at [51] and also [100].
Primary Judgment at [94].
Primary Judgment at [101].
Joint expert report, 29 October 2015, par 9.
Joint expert report, par 11.
Primary Judgment at [93].
Primary Judgment at [94].
Primary Judgment at [95].
Tcpt, p 162(30).
Primary Judgment at 76.
Primary Judgment at [61]; Tcpt, p 188(44).
Primary Judgment at [93].
The transcript of the answer to Q159 given to the police had the word "and" after the reference to 10 metres, and no comma.
Primary Judgment at [43].
See at [30] above.
Tcpt, p 166(3)-(12).
Tcpt, p 167(25).
Tcpt, p 162(30).
Joint experts' report, par 12.
Primary Judgment at [101].
Report, 19 March 2012, p 44(10)-(15).
See Gordon v Truong [2014] NSWCA 97.
Primary Judgment at [101], emphasis added.
Primary Judgment at [102].
Primary Judgment at [16].
Calcagno v Dent [2015] NSWDC 308 (Primary Judgment) at [76].
Primary Judgment at [77].
Primary Judgment at [93].
Primary Judgment at [94].
Primary Judgment at [96].
Primary Judgment at [100].
Primary Judgment at [101].
Primary Judgment at [101].
Reproduced at [70] above.
CL Act, s 5B(1). In determining the precautions a reasonable person would have taken, the Court is to consider the matters specified in s 5B(2).
Primary Judgment at [94].
Primary Judgment at [159].

Amendments 02 February 2017 - corrected typographical error in paragraph [24] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2017

Suitors' Fund Act 1951(NSW)

Road Rules 2008(NSW)rr 48, 140, 142, 144

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)

Cited By (2)