Dickinson v Stackman

Division 1 Preliminary

5 Definitions

In this Part—

harm means harm of any kind, including the following—

(a) personal injury or death,

(b) damage to property,

(c) economic loss.

negligence means failure to exercise reasonable care and skill.

personal injury includes—

(a) pre-natal injury, and

(b) impairment of a person’s physical or mental condition, and

(c) disease.

Division 2 Duty of Care

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Division 3 Causation

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Division 8 Contributory Negligence

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose—

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

5T Contributory negligence—claims under the Compensation to Relatives Act 1897

(1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person.

(2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.

THE ISSUES

4. The following issues arise for determination:

(a) whether the Plaintiff has proved on the balance of probabilities that the Defendant was negligent. That is, whether she failed to exercise reasonable care and skill (s 5 CLA); (b) whether the risk of harm was foreseeable, not insignificant and a reasonable person in the Defendant’s position would have taken those precautions, taking into account the matters referred to in s 5B(2) of the CLA; (c) whether, if negligent, that negligence was a necessary condition of the occurrence of harm (s 5D CLA); (d) whether the Plaintiff was contributorily negligent (s 5R CLA); and, (e) if so, whether the Plaintiff’s negligence should defeat the claim (s 5S CLA).

PLEADINGS

5. The Plaintiff alleges negligence in failing to act in accordance with the standards of a reasonably prudent driver in the circumstances, on the following grounds, set out in the statement of claim (SOC):

(a) the Defendant stopping the vehicle intending to make a right hand turn into an area that did not enable access to walking trails; (b) the Defendant traversing across double unbroken white lines; (c) the Defendant failing to take a proper look out for the Plaintiff who was driving his motorcycle behind the Defendant; (d) the Defendant suddenly stopping her vehicle; (e) the Defendant traversing across double white lines to an undesignated area on the opposite side of the roadway; (f) the Defendant not recognising that a vehicle travelling behind her would be likely to collide with her, given the sudden and/or unnecessary manoeuvre the Defendant was about to make; (g) failing to use an access to walking trails about 200 metres from the point of collision.

6. The Defendant denies that she was negligent and alleges contributory negligence in the following terms. The Plaintiff:

(a) failed to take care for his own safety; (b) failed to keep a proper lookout; (c) failed to ride his motorcycle in a safe manner; (d) failed to maintain proper control of his motorcycle; (e) failed to leave sufficient distance between his motorcycle and the Defendant’s vehicle to stop, or otherwise avoid a collision; (f) failed to brake his motorcycle on observing that the Defendant’s vehicle’s indicator was illuminated; (g) failed to brake his motorcycle, causing his motorcycle to collide with the rear of the Defendant’s vehicle; (h) veered the motorcycle instead of braking the motorcycle after observing the Defendant’s vehicle; (i) attempted to overtake the Defendant’s vehicle when he was not lawfully permitted to do so; (j) attempted to overtake the right turning Defendant’s vehicle on the driver’s side after observing the Defendant’s vehicle indicating right.

AGREED FACTS

Liability

7. On 24 March 2021, at about 10:10 am, the Plaintiff and Defendant were riding/driving (respectively) motor vehicles generally north on Woy Woy Road, Kariong NSW when a collision occurred between the vehicles.

8. The collision occurred when the Plaintiff’s motorcycle, travelling behind the Defendant’s vehicle, collided with the Defendant’s vehicle as the Defendant attempted to make a right hand turn across double unbroken white lines.

9. Shortly before the collision, the Plaintiff’s vehicle had driven to the end of the slow vehicle lane before entering the single lane.

10. The Defendant’s attempted right-hand turn was about 15 meters from near the end of the slow lane allowing motor vehicles to merge with the single lane.

11. The Plaintiff’s motorcycle collided with the offside (driver’s) rear of the Defendant’s vehicle.

12. The Plaintiff was riding a green 1999 Yamaha XV1600A cruiser motorcycle NSW registered number XXX26.

13. The Defendant was driving a white 2010 Mazda 3 motor vehicle with manual transmission registered number XXX32A.

14. At the time of the motor vehicle accident, the Plaintiff was 51 years of age.

15. At the time of the motor vehicle accident, the Defendant was 20 years of age.

16. The Defendant had a front seat passenger.

17. The Plaintiff did not have a pillion passenger.

18. The Defendant was not familiar with Woy Woy Road.

19. The weather was fine.

20. The speed limit was 80kmph at the location of the collision.

21. Woy Woy Road had double lanes in parts allowing vehicles to overtake slow moving vehicles but was mostly single lane in each direction.

22. Generally speaking, including the accident site, Woy Woy Road is surrounded by the Brisbane Water National Park.

23. The Plaintiff was on his way to meet other motorcyclists at Mount Penang Garden Café.

24. The Defendant and (her passenger) were looking for a car park preparatory to accessing a walking trail to Kariong Brook Falls.

25. The accident site is about 250 meters south of Staples Lookout which provides a walking trail access to Kariong Brook Falls.

Damages

26. Damages are agreed at $500,000.

LAY EVIDENCE

Robert Dickinson

To police

27. The Plaintiff was interviewed by Senior Constable D’Angela, following the collision. The interview was recorded in a police notebook.

28. The Plaintiff confirmed he is the registered owner of a motorcycle with NSW registration XXX26 and was the rider of this motorcycle when it was involved in a motor vehicle collision on Woy Woy Road at about 10.10am on Wednesday 24 March 2021.

29. The Plaintiff reported that he was riding up Woy Woy Road in the direction of Kariong. He pulled into the left-hand lane while travelling at a speed of approximately 75-80 kilometres per hour. The Plaintiff reported that the lane he was in was ending, so he looked in his right-side mirror to see if it was clear to merge. He then indicated to his right and merged. The Plaintiff then noticed that the vehicle in front of him had slowed, indicated, and stopped completely. The Plaintiff recalled having “about a three second reaction time.” The Plaintiff collided with the vehicle. He could not recall where he collided with the vehicle, but recalled hitting the left of his motorcycle. The Plaintiff recalled then feeling the impact of his helmet and right shoulder hitting the road.

30. Police asked the Plaintiff how fast he was travelling at the time of the collision, to which he responded that he was travelling approximately 75-80 kilometres per hour. The Plaintiff was wearing a helmet. When asked how close to the vehicle in front the Plaintiff was when it began to turn right, he told police, “After merging into the lane and I saw the indicator on.” Police asked if the Plaintiff was intending to overtake the vehicle, to which he replied “No.” Police asked the Plaintiff why he did not keep a safe distance behind the vehicle and wait to see what it was doing. The Plaintiff reported that he has never seen anybody turn there before, and that the area is not a road, nor does it have any U-turn bay or similar markings. The Plaintiff could not recall whether he crossed the two unbroken dividing lines.

To MJM Corporate Risk Services

31. The Plaintiff was interviewed by Ms Sherine Coffey of MJM Corporate Risk Services, via telephone, on 28 April 2021. A statement was taken.

32. The Plaintiff, at the time of the collision, held a NSW driver’s licence. The licence is a class CR with no conditions. The Plaintiff has been riding motorcycles on and off for about 10 years and would class himself as an experienced motorcyclist.

33. The Plaintiff reported riding up Woy Woy Road, towards Kariong from Woy Woy. At the overtaking lane, the Plaintiff remained in the slow lane. He recounted glancing ahead and noticing a couple of cars probably about 500 metres away. The Plaintiff continued to the end of the overtaking lane and looked in the side mirror of his motorcycle. There were no vehicles visible, so he indicated and merged right.

34. The Plaintiff recounted that he noticed a small white vehicle in front of him had suddenly indicated right and come to a complete stop. The Plaintiff reported that this left him no time, 3-4 seconds, to decide what to do. He said that to his left, there was a sign on the roadside, so going around the vehicle on the left was not an option. The Plaintiff recounted that it was clear ahead. He swerved to the right of the vehicle to go around it, however, the vehicle then started to make a right turn across the double white lines. The Plaintiff said that to the right, there appeared to be a small clearing in the bushland. The Plaintiff reported that in hindsight, he feels that the driver of the vehicle, being the Defendant, may have mistaken the clearing for the lookout. The Plaintiff said that as the vehicle turned right, he collided with the rear right-hand side of the vehicle, near the rear door. The vehicle looked to be a small white sedan and appeared to have two people in it. The Plaintiff recalled braking prior to the collision, slowing down to approximately 60-70 kilometres per hour. Prior to braking, he had been travelling at 80 kilometres per hour.

35. The week before the Plaintiff provided this report, he was contacted by the officer in charge of the collision. The Plaintiff was informed that the officer had found the Plaintiff to be at fault for the collision. The Plaintiff was informed that he would be receiving an infringement for not leaving enough distance to stop. This fact is of no relevance to these proceedings.

36. The Plaintiff reported that he believes that the collision was caused due to the negligence of the Defendant. He reported that he believes her attempt to turn right across double lines at the end of an overtaking lane on a notorious bad road, to either perform a U-turn or enter the other side of the road, which is not a marked driveway or parking area, negligently caused the collision. The Plaintiff reported he will be considering taking the option to have the Police fine reviewed.

In Claim Form to Shannons (insurer)

37. The Plaintiff completed a claim form for damage to his motorcycle, which was submitted to Shannons, his insurer, following the collision.

38. The Plaintiff stated in the form:

“I was going up a road towards a crest following another car up the road. Suddenly this car has flung on its indicator and come to a dead stop causing me to hit the rear of it and go over the car.”

In Application for Personal Injury Benefits (Exhibit 1)

39. The Plaintiff completed and signed an application for personal injury benefits form on 13 April 2021.

40. The Plaintiff stated in the form:

“I was following a white car. The driver in the car indicated to go left, veered left and stopped. I indicated to go around (right hand side) of car and as I began to pass car, they veered back on road and collected myself and my motorbike.”

41. This account provided by the Plaintiff is inconsistent with all other accounts, in plainly it is a version most inculpatory of the Defendant.

In evidence

42. The Plaintiff told the Court that he has lived on the Woy Woy Peninsula for approximately 28 years and has frequently used Woy Woy Road during this time [T9.20].

43. The collision took place approximately 200 metres south of Staples Lookout. Some time was spent in examination discussing the location of Kariong Brook Falls, relative to Staples Lookout, and an entryway to the falls located approximately 250 metres south of Staples Lookout. The following exchange then took place [T11.31]:

Q. This accident, you can assume that his Honour has exhibit A, which states that, "The collision occurred when the Plaintiff's motorcycle, travelling behind the Defendant's vehicle, collided with the Defendant's vehicle as the Defendant attempted to make a right‑hand turn across double unbroken white lines". Do you agree with that?

A. Yes.

Q. Was there something for the Defendant to turn into across those double white lines?

A. Yes.

Q. What was it? Can you describe it?

A. It's a council drop‑off area, so when they do road works‑‑

Q. Can you describe it, I've said?

A. It's just, like, a clearing with dirt mounds on it.

44. Some objection was made to the description of the area by Counsel for the Defendant. The exchange continued:

Q. How would you describe, in terms of road users, how would you describe that area?

A. Just as a clearance. Like, a clearance on the side of the road. I've never actually stopped there myself.

45. The Plaintiff was asked if he had witnessed vehicles parked in the area, or pulling into the area, prior to the day of the collision [T12.10]:

Q. Had you ever seen any other vehicle stop there in your 28 years?

A. Yes.

Q. What vehicle?

A. Just different types of vehicles as you're driving past that you'll see parked there.

Q. On the date of this accident, which was 24 March 2021, was that area signposted in any way?

A. No.

Q. Had you ever encountered a vehicle, as you were travelling north along Woy Woy Road, turn right into that area?

A. No.

Q. Had you ever encountered a vehicle, as you travelled north along Woy Woy Road, travelling south into that area?

A. No.

46. Whilst the Plaintiff’s evidence was that he has never seen any vehicles turning into the area described, by virtue of having seen vehicles parked there on numerous occasions, it follows that vehicles must have had to turn into the area at some stage.

47. The Plaintiff said that he could not see any vehicles behind him, as he travelled in the left-hand lane. After coming around a bend before the collision site, the markings on the road changed to smaller lines which indicate a merge. The Plaintiff noticed a white car driving in front of him, around this time. When he first noticed the vehicle, he was approximately 160 metres behind it [T15.39]. The vehicle was driving in the right-hand lane, in the same direction of travel as the Plaintiff.

48. The Plaintiff proceeded to check in his side mirror to see if it was safe to merge, in circumstances which align with his earlier evidence. He proceeded to merge into the right-hand lane. At the time of initially going to move into the right-hand lane, the Plaintiff noticed that the vehicle was now approximately 80 metres ahead of him [T16.22]. After moving into the right-hand lane, the Plaintiff noticed the vehicle was approximately 40 metres ahead of him [T16.25]. At the times of these observations, the Defendant’s vehicle was still travelling. I note that the Plaintiff recalled noticing getting closer to the vehicle in front of him. The only two inferences are either he was accelerating and going faster than 80 kilometres per hour, or that the Defendant was slowing. Given that the Plaintiff’s speed (75 to 80 kilometres per hour) did not change until the last moment, the compelling inference is that the Defendant was slowing, which ought to have been obvious to the Plaintiff.

49. The Plaintiff told the Court that the Defendant’s vehicle’s brake lights and right-hand indicator came on simultaneously [T16.43]. The Plaintiff was approximately 40 metres from the vehicle, travelling 80 kilometres per hour, at this time. Consistent with his earlier evidence, the Plaintiff told the Court he started to brake but knew he was going to hit the Defendant’s vehicle, so he tried to manoeuvre the bike around the vehicle to avoid a collision. The Plaintiff said that he couldn’t move to the left of the vehicle due to the presence of a temporary sign, which he would have collided with. The Plaintiff described his movements as follows (T17.42):

A. There was no option for me to go to the left. So, what I did was I looked at best option, which was no oncoming vehicles. My best option was to try and get the round them because I didn't know why they'd just stopped at the end of the overtaking lane. So, I basically tried to go. And the moment my front wheels and the bike was heading towards the other side of the road, they turned. So, I tried to turn the vehicle more to the ‑ sorry, my bike more to right, but momentum kept me going forward.

50. In cross-examination, the Plaintiff was asked about the road leading up to the incident. He told the Court that he was not prevented from seeing what the Defendant’s car was doing on the straight bit of road leading up to the collision site. When asked if whether after coming out of the bend he would have been able to see the Defendant’s vehicle for longer than 30 to 40 metres, the Plaintiff told the Court that he was “more worried about what’s behind me and what’s on the side”, noting that he could, at the time see the car in front, but they were not indicating or braking [T20.09].

51. The Plaintiff was questioned about the information he provided to Senior Constable D’Angelo following the incident, where he stated that the vehicle in front had slowed, indicated and stopped completely. It was put to him, and he accepted, that he did not tell the police officer that the vehicle came to a stop and turned on its indicator simultaneously. He told the Court that the vehicle “didn’t skid” [T22.21]. The Plaintiff told the Court that if the Defendant would have indicated first, before braking, The Plaintiff agreed that he would have known the Defendant’s intention, that being to turn off the roadway [T23.21]. When asked if the Defendant indicated and slowed down, the Plaintiff rejected this proposition, and told the Court that the Defendant, instead, indicated and stopped [T24.08].

52. The Plaintiff was then questioned by Counsel for the Defendant about the earlier statement he had made in Exhibit 1, regarding the Defendant’s vehicle veering left before stopping, then turning right [T24.32]. The below exchange took place [T24.26]:

Q. Do you recall what you said in that statement?

A. No, I don't.

Q. Can I read it out to you, and if you want me to show you the form, I can.

A. No, that's fine.

Q. "I was following a white car. The driver in the car indicated to go left, veered left and stopped. I indicated to go around (right hand side) of car and as I began to pass car, they veered back on road and collected myself and my motorbike".

A. No, that's wrong. I don't know where you got ‑ where did you get that statement from? Because that's saying left and they didn't indicate left, they indicated right.

53. It was confirmed with the Plaintiff that he had signed the statement, dated 13 April 2021. The Plaintiff told the Court that the writing was not his own, and he can’t remember who wrote the statement.

54. The Plaintiff was questioned about his statements that he had seen cars parked at the clearing, near the collision site, in the past. It was put to him that for cars to get into the clearing, they must, inevitably, have turned left from the southbound lane or right from the northbound lane to enter the clearing. The Plaintiff told the Court that he always assumed cars in the clearing had entered left from the southbound lane, as he assumed (incorrectly) that cars were not allowed to turn right from the northbound lane, into the clearing [T28.12].

55. The Plaintiff was questioned about where he was looking upon approach to the point where the two lanes merge into one. Counsel for the Defendant put it to the Plaintiff that while he was looking in the mirror and performing a head check prior to merging, he was not looking forward. The Plaintiff rejected this assertion, telling the Court that peripheral vision allowed him to continue to see whether or not there was something up ahead, while checking his mirror and performing head checks [T29.02]. The Plaintiff told the Court that the size of the mirrors on his bike was approximately three inches by two inches. He confirmed that checking the mirrors required focusing on that area, superimposed upon a moving background, while wearing a helmet with a visor down.

56. The Plaintiff told the Court that he did not appreciate that the vehicle driven by the Defendant was slowing down. He also did not appreciate that the vehicle was turning right, as the brake lights and indicator were not turned on until after he had merged lanes.

57. It was put to the Plaintiff that as a motorcyclist, he would be expected to have regard to a range of drivers that are unpredictable but nevertheless drive within the scope of the road rules. He accepted this premise and agreed that as a vehicle travelling behind, it is your responsibility to at all times be aware of what the drivers ahead of you are doing with their vehicles [T32.15].

58. It was put to the Plaintiff that he was not paying adequate attention to the Defendant’s vehicle, which was travelling in front of The Plaintiff. He rejected this assertion. The Plaintiff told the Court that by the time he could appreciate the closing speed between himself and the Defendant’s vehicle, it was too late, and he was going to hit the vehicle. The following exchange took place [T34.18]:

Q. Because you hadn't made any sort of assessment when you first saw that car as to what the closing speed might have been between your two vehicles; correct? You hadn't, had you?

A. I was paying more attention to what was behind me and what was on the side. As a motorbike rider in the left‑hand lane you're more worried about what's on the side because if you go and someone comes and cleans you up, that's what you're looking at, yes. Do I know there's a vehicle in front? Yes. Peripheral vision has shown me that there is a vehicle in front. The speed that the vehicle was doing in front, I couldn't tell you. Okay? But when I moved over, okay, so you're doing it all at speed, okay, as you moved over, that's when, like I said, they indicated and the brake lights come on simultaneously, okay, and by that time ‑ by that time, okay, cause I'm on assumption, okay ‑ let's say, you know, I'm on the assumption that they're still doing at least 60 kilometres an hour and I'm assuming that, you know‑‑

Q. You can't assume that. You can't assume that, as a motorcyclist, can you?

A. Yes. I assume that because of me being on that road and no normal person would stop at the end of an overtaking lane.

Q. There are a lot of not‑normal drivers on the road, aren't there, sir?

A. I agree with that, yes.

59. It was further put to the Plaintiff [T35.5]:

Q. You entirely ignored the possibility that vehicle was slowing with the intent to stop. Is that right?

A. Yes.

60. The Plaintiff was briefly re-examined by his Counsel. Exhibit 1, the signed application for personal injury benefits, was shown to the Plaintiff, and he confirmed he was at Royal North Shore on the date that the statement was created and signed. He told the Court that he does not remember the document, and that he could not tell whose handwriting it is. In those circumstances, I place no weight on Exhibit 1.

61. There was some brief additional cross-examination of the Plaintiff by Counsel for the Defendant, pertaining to the walking trails in the area. The Plaintiff was then excused.

Laura Stackman

To police

62. The Defendant was interviewed by Senior Constable D’Angelo, following the collision. The interview was recorded in a police notebook.

63. The Defendant confirmed she was the driver of a motor vehicle with NSW registration XXX32A, registered to her mother, and involved in a motor vehicle collision on Woy Woy Road at about 10.10am on Wednesday 24 March 2021.

64. The Defendant said that she was driving north, and that the Plaintiff was behind her. She told police that she put her blinker on to turn into an off-road area, and that as she made the turn, the Plaintiff hit the back passenger side of her vehicle. The Defendant saw the Plaintiff go over the top of her car, landing on the roadway. She believed the Plaintiff was unconscious. The Defendant and her passenger, Ms Flach, then exited the vehicle and called an ambulance.

65. Police asked the Defendant how fast she was travelling at the time of the collision, to which she responded that she was below the speed limit as she was looking for somewhere to pull over. She told police that neither she, nor her passenger, Ms Flach, were injured because of the collision. They were both wearing seatbelts at the time, the vehicle’s headlights were off, and the airbags did not deploy as a result of the collision. The Defendant told police that she didn’t see the motorcycle being ridden by the Plaintiff behind her vehicle at any time, and that she did not think there is anything she could have done to avoid the collision.

To MJM Corporate Risk Services

66. The Defendant was interviewed by Ms Sherine Coffey of MJM Corporate Risk Services, via telephone, on 14 May 2021. A statement was taken.

67. The Defendant reported that she was driving north along Woy Woy Road, towards Kariong. There is a section of road where the road changes from two lanes into one. There is an overtaking lane that continues for a while and then it merges back into one lane. The Defendant reported that the accident occurred about 10-15 metres past where the lane merges back into one lane. At the location, there was one lane in the other direction. The north and southbound lanes are separated by double unbroken lines.

68. The Defendant said that the speed limit is either 60 or 80 kilometres per hour. She reported that she was travelling under the speed limit and slowed down, as she was looking for somewhere to pull over. The Defendant reported that about 10-15 metres past where the overtaking lane ended, she saw a driveway to her right, so she indicated right and brought her vehicle virtually to a stop. The Defendant described the area as “sort of like a clearing in the bush where you can park your car to access the walking trails.”

69. The Defendant reported that there was no oncoming traffic, as she begun to make the right turn over the double lines towards the clearing. As she started to make the turn, her car was suddenly hit on the rear right-hand side. The Defendant reported that she was mostly across the lane and moving at low speed. After the impact, the Defendant saw the rider, being the Plaintiff, go over the top of her car and land on the road on the passenger side. She reported that the Plaintiff landed on the road shoulder on the oncoming traffic side, where the dirt meets the tar. The Defendant stopped her car just off the side of the road, before she and Ms Flach exited the vehicle and called an ambulance. The Defendant reported that two passers-by pulled over shortly afterwards, before going to the aid of the Plaintiff. One of the passers-by was an off-duty paramedic, and the other was a nurse.

70. The Defendant recounted that the Plaintiff was conscious and laying on his back, about ten metres from the impact site. The Plaintiff was communicating with the passers-by, but the Defendant was not close enough to hear the conversation.

71. The Defendant provided a verbal recount of the events to Senior Constable D’Angelo, on the scene, which was recorded in a police notebook and recorded on a camera. The Defendant was subject to an alcohol breath test which returned a negative reading. The Defendant’s vehicle was not able to be driven from the scene and was towed away by Woy Woy Towing.

72. The Defendant reported that prior to the collision, she was concentrating on driving her vehicle and was not using her mobile telephone or eating at the time. She had never been to the area before. Ms Flach, her passenger, was operating Google Maps and providing verbal navigation directions to the Defendant. The Defendant reported that she could not see Ms Flach’s phone screen, and was not distracted by Ms Flach, leading up to the collision.

73. The Defendant reported that prior to the collision, when she was in the overtaking lane, she was watching for cars behind her. She recounted that a van was driving behind her at one point before it overtook her. The Defendant reported that she was driving in the slow lane leading up to the accident site for the majority of the time. She was not aware that the motorcycle, being ridden by the Plaintiff, was behind her prior to the impact. The Defendant moved over to the right lane about 50 metres before it ended. The first time the Defendant saw the Plaintiff was when he flew through the air following the collision.

In evidence

74. The Defendant told the Court, consistently with her earlier statements, that she and Ms Flach were travelling along Woy Woy Road, heading north, looking for a waterfall and a track to it. Ms Flach was operating Google Maps and assisting the Defendant to find somewhere to park the vehicle.

75. The Defendant recounted seeing the clearing, near the site of the collision, from approximately 65-70 metres away. She told the Court she thought she could pull over into the clearing, so that she and Ms Flach could find their bearings. The Defendant told the Court that as she approached the clearing, she indicated to turn right, slowed down, and made the turn. The following exchange took place [T43.16]:

Q. So what did you do?

A. Yeah. Then as I continued straight, I indicated to turn right into that clearing. I slowed down and made the turn.

Q. How did you slow down?

A. I slowed down as I'd normally would for a turn, just cautiously. And, yeah, slowed down slowly, yeah.

Q. And did your vehicle come to a stop before you turned?

A. No, it didn't. It came‑‑

Q. How close to a stop, did it come?

A. It came to a safe point of turning. So it was virtually a stop; but, yeah, it was still moving.

76. The Defendant told the Court that after checking that there were no cars coming in the opposite direction, and making the turn, she felt the impact from the collision with the Plaintiff’s motorcycle. Consistent with her earlier statements, she recounted seeing the Plaintiff flying over the car, before pulling the car to the side of the road. It was then that Ms Flach called for an ambulance.

77. The Defendant told the Court that she had never driven along Woy Woy Road before the date of the collision. She gave evidence that she knew the speed limit of the road was 80 kilometres per hour, and that she would have been travelling slower than the speed limit, as she was looking for somewhere to pull over. She estimated her speed to be 60-70 kilometres per hour, before slowing and commencing the turn.

78. In cross-examination by Counsel for the Plaintiff, the Defendant was questioned as to her knowledge of access options to Kariong Brook Falls. The Defendant told the Court that she was trying to get access to a walking trail to get to Kariong Brook Falls. She said that her interest in attending a waterfall was sparked due to the rain in the weeks leading up to the accident. The Defendant told the Court that she didn’t know where the access to the Kariong Brook Falls walking trail was. It was put to the Defendant that if she had turned in at the Staples Lookout, she would have found a walking trail to Kariong Brook Falls. She agreed.

79. The Defendant was questioned about her movements prior to the collision. She told the Court that she had travelled too far South for a turn off to Kariong Brook Falls and had to do a U-turn near Woy Woy, before travelling northbound again. Counsel for the Plaintiff further questioned the Defendant on her knowledge of access points to the walking trail, and she confirmed she did not know where access was. It was put to her that because of her lack of knowledge of access, the Defendant was trying to focus on seeing a place to get access. The Defendant told the Court that she had decided, with Ms Flach, that they needed to pull over and figure out where the access was, by using the internet.

80. The Defendant told the Court that her intention in pulling into the clearing near the collision site was to pull over and search for further information regarding access to the walking trail. She did not know one way or another whether the clearing was an access point to the walking trail, at the time of pulling over.

81. The Defendant was shown Exhibits C1 and C2, depicting the clearing. She was questioned by Counsel for the Plaintiff as to why she didn’t access the clearing from the south entry point, as opposed to the north entry point. She told the Court she couldn’t remember [T51.19].

82. The Defendant was questioned regarding what lane she was in leading up to the collision. She told the Court that she couldn’t remember when she had merged into the right-hand lane but had done so before commencing her turn into the clearing.

83. It was put to the Defendant that, given she was driving a manual transmission vehicle, she had to concentrate on lowering the gears to slow the vehicle, before turning into the clearing. She told the Court that she had become good at doing it automatically, and wasn’t overly thinking about it. She recounted that the decision to turn into the clearing was made before slowing down the vehicle. It was put to her that there were several options to pull over onto the left hand side of the road while travelling north along Woy Woy Road, prior to the clearing. She agreed, but told the Court that the decision to pull over hadn’t been made yet, and once it was, the clearing was the next viable option to pull over into [T54.24].

84. The Defendant couldn’t recall if she was looking into her rear vision mirror, or not, prior to slowing down and turning. She told the Court that slowing down and turning is an automatic process. She agreed that looking into her rear vision mirror would have been an important thing to do. Some further questions were put to the Defendant relating to the rear vision mirror, in that she did not see the Plaintiff until he was over the Defendant’s vehicle and crashed onto the ground, and that the Defendant didn’t see any motorcycles as she travelled to where the incident occurred [T62.07].

85. The Defendant was shown and questioned on her statement dated 14 May 2021 (Exhibit D) about where she began to indicate and brake her vehicle. The following exchange took place [T55.44]:

Q. I'm putting to you that you didn't put your indicator on and brake until you were about 10 to 15 meters past where the overtaking lane ends.

A. From my memory, I can't recall, but from here, yeah.

Q. But you do recall braking and putting your right‑hand indicator on simultaneously?

A. I believe that my normal process is that I indicate and then slow down.

86. I formed the view that this line of questioning was unfair as what appeared in the statement was [at para 43]:

“The accident occurred about 10-15 metres past where the lane merges back into one lane.”

87. And [at para 47]:

“About 10-15 metres past where the overtaking lane ended, I saw a driveway to my right, so I indicated right and brought my car virtually to a stop.”

88. The proposition put at [T55.44] based on the statement that “you didn’t put your indicator on and brake until you were about 10-15 metres past where the overtaking lane ends” was, although not objected to, a misrepresentation of what the Defendant in fact said in her statement. The reference to 10-15 metres was the identification of the distance between where the end of where the lanes merged to the point of collision. The question was unfair and temporarily confused the Defendant.

89. As a matter of common sense, a distance of 10-15 metres would be insufficient for the Defendant to indicate, slow and commence the turn. It would also be insufficient time for the Plaintiff to perceive the danger and react at all. A fact agreed by the Plaintiff’s expert, Grant Johnston [T113.44].

90. Some clarification on the distance was sought [T58.20]:

Q. You're being asked as to your recollection, and what is your recollection, about how far from starting the turn that you indicated and began slowing?

A. I believe now I'm more aware that it takes a longer time to actually slow down the car than what I initially thought, so I believe that it was more closer to the distance I estimated; 60, 65 to, yeah, sorry.

Q. Sorry, 65 to 70?

A. Yes.

91. It was put to the Defendant that this estimate of distance was not included in her written statement to MJM Corporate Risk Services, which she accepted.

92. Counsel for the Plaintiff put to the Defendant that it was a sudden decision to make the right-hand turn into the clearing. She rejected this, confirming that the decision was made 65-70 metres before the clearing. It was further put to the Defendant that putting on her indicator 65-70 metres before the turn was not sufficient notice for vehicles behind her. The Defendant stated that she believed it was fair notice [T59.23]. When questioned again by Counsel for the Plaintiff as to the distance from the clearing that the Defendant indicated, she stated that while she had earlier accepted, based on what I consider to be a misrepresentation of what she said in her statement, that it was a distance of 10-15 metres, this estimate was made in light of a lack of awareness of how long it takes a car to slow down, and that the actual distance is in fact longer than 10-15 metres [T60.04].

93. On re-examination, the Defendant was briefly questioned about the rear vision mirror. She told the Court that looking in the rear vision mirror is an automatic process and would form part of her standard practice in making any turn. The Defendant didn’t believe there would be any reason for her to have not looked in the rear vision mirror, prior to the collision.

94. I accept the Defendant’s evidence. Despite submissions to the contrary for the Plaintiff, I found her to be an honest and reliable witness.

Louisa Flach

In evidence

95. Ms Flach gave evidence due to her role as passenger in the Defendant’s vehicle at the time of the collision.

96. Ms Flach confirmed that she and the Defendant had been searching for a waterfall on the morning of 24 March 2021. She recounted the movements of the vehicle leading up to the collision, consistent with the evidence of the Defendant.

97. Regarding the rate at which the Defendant slowed the vehicle when approaching the clearing, the following exchange took place [T67.06]:

Q. At what sort of rate when you say, "she slowed down" did she slow down, was it a sudden slow down or just a gradual slow down?

A. No, it was a gradual slow down.

Q. If you don't know the answer to any of these questions, just say, "I don't know", okay. Do you recall about what speed Ms Stackman was travelling before she started to slow down?

A. No, but it wasn't very fast.

Q. Do you know if the vehicle came to a complete stop before she actually turned or not? If you don't remember, please say.

A. I can't remember.

98. Ms Flach recounted the collision, and exiting the vehicle to call an ambulance.

99. In cross-examination by Counsel for the Plaintiff, Ms Flach was asked about her role as the navigator. Ms Flach was accessing Google Maps via the internet, on her telephone. There was no problem with the internet connection. They did not attempt to pull over to improve internet access. Ms Flach was passing on information from Google maps to the Defendant. She confirmed that the intention was to pull over to look at Google Maps together.

100. Ms Flach said that she was looking for a clearing, saw it, and said “There’s a clearing” [T76.22]. She was unsure whether the Defendant had seen the clearing before that point. Ms Flach agreed that the Defendant’s reaction to becoming aware of the clearing was to put on the indicator and slow the vehicle. She confirmed that she heard the indicator being activated by the Defendant, but was unable to recall how far the vehicle travelled after she first heard the indicator.

101. The witness was excused without being cross-examined on two important aspects of her evidence. The first is that when the vehicle began slowing, it was a gradual slow down, and second, that prior to slowing, the vehicle was not travelling very fast.

EXPERT EVIDENCE

Nigel McDonald report dated 17 October 2023

102. Mr McDonald authored the first report dated 17 October 2023 (commencing page 140 of Exhibit E), at the request of the Defendant’s insurer. In the executive summary to his report, Mr McDonald expressed the following conclusions based upon his analysis:

(a) if the Plaintiff had braked rather than veered, he could have brought his motorcycle to a stop before reaching the Defendant, and avoided a collision and injury entirely; (b) the Plaintiff had sufficient time and distance available to brake and avoid a collision; (c) the Plaintiff could and should have braked rather than veer; (d) the Defendant was permitted to slow and turn off the road; (e) the Plaintiff was not permitted to overtake the Defendant.

103. Over the course of his 46-page report, Mr McDonald sets out the scientific basis and reasoning for his opinion. Significantly, the expert expressed the opinion that from 80 kilometres per hour, a motorcycle can be braked to a stop in just 37 metres. That is to be compared with the evasive manoeuvre chosen by the Plaintiff, to veer, which would require a distance of some 40 to 58 metres.

Grant Johnston report dated 3 February 2024

104. Mr Johnston reviewed all of the available material before embarking upon a discussion of the incident commencing at page 43. At [7.16], he expressed the following opinion:

“It is therefore my opinion that although the insured driver was performing a technically legal manoeuvre, the manoeuvre was ambiguous and difficult to perceive, that she potentially did not give the following driver sufficient time to interpret her intention and to take evasive action to avoid impact. The above analysis has suggested that even if he was maintaining a reasonable space of three seconds, that and the notice given was so short that many reasonable vehicle operators would not have been able to avoid impacting with the Insured vehicle.”

105. Essentially, it is the opinion of Mr Johnston that it was “an unwise decision” on the part of the Defendant to “stop suddenly and with minimal warning at the end of an overtaking lane, especially into an ambiguous location.”

106. The difficulty with Mr Johnston’s opinion is that it is based upon assumptions which are not supported by the preponderance of the evidence.

Nigel McDonald report dated 23 April 2024

107. Mr McDonald was furnished with a copy of the report by Mr Johnston, dated 3 February 2024. He was asked to consider that report and to indicate whether it caused him to change his opinion. Accordingly, he created a second report dated 23 April 2025 (commencing page 211 of Exhibit E). His opinion was unchanged. In addition to the five conclusions he reached in his first report, he expressed the following further opinions:

(a) the actions of the Defendant were reasonable; and (b) the statements of both parties indicate the Plaintiff closed rapidly on the Defendant over an extended time, rather than the Defendant braking rapidly ahead of the Plaintiff.

108. The latter observation, supported by the evidence of the Plaintiff himself, who said that he was travelling at about 80 kilometres per hour (22.22 metres per second) when he first saw the Defendant’s vehicle 160 metres ahead, without any change to the Plaintiff’s speed, it would have taken him approximately 7.2 seconds to traverse the distance of 160 metres. Further, it follows that there was a gap between the vehicles of 7.2 seconds, not 3 seconds, as was assumed by Mr Johnston. That extremely safe gap closed by a combination of two factors:

(a) the Defendant slowing by braking; and, (b) the Plaintiff continuing to ride at about 80 kilometres per hour making a collision inevitable.

109. Mr McDonald expressed the opinion that in order to commence the right hand turn, the Defendant would have slowed to a speed of about 10 kilometres per hour. Changing her speed from 80 kilometres per hour (the speed limit) to 10 kilometres per hour at a normal rate of braking would take eight to ten seconds. It follows that it is probable that the Defendant had already commenced braking when the Plaintiff saw her vehicle 160 metres away. He ought to have seen the brake lights and right hand indicator at that time, and ought to have commenced slowing.

110. I note the Defendant’s evidence that she was travelling under the speed limit of 80 kilometres per hour, estimated at 60 to 70 kilometres per hour. This means that it may have taken less time to slow to 10 kilometres per hour. This depends on the rate of deceleration. Nevertheless, there remained sufficient time and distance to safely indicate and slow.

111. Mr McDonald expressed the following opinion [2.14]:

“The claimant’s statement appears to indicate that it was he who came rapidly upon the insured rather than the insured stopping suddenly ahead of him. If that is the case, it is likely the claimant had a relatively lengthy period of time and distance to respond to the presence of the insured and, in the absence of the insured turning, the claimant needed to slow as he was closing rapidly on a vehicle travelling ahead of him within the northbound lane”.

112. And at [2.18]:

“It is not known at what time the claimant became aware of the insured’s intention to turn. What is apparent is that the insured would have been travelling slowly or slowing prior to turning and that over that time, the claimant should have been able to brake and avoid a collision. Given the options of braking and remaining in the northbound lane, or veering into the southbound lane, the claimant could and should have braked and remained within the northbound lane.”

113. And at [2.23]:

“The location of the insured’s turn afforded a good line of sight for following traffic, as it was not on or beyond a crest or a horizontal curve. For vehicles following at a safe distance, it should have been possible to slow behind the insured and remain within the northbound lane without a collision.”

Grant Johnston report dated 28 November 2024

114. Mr Johnston was then provided with a copy of Mr McDonald’s second report, leading to the creation of a second report by Mr Johnston, dated 28 November 2024 (commencing at page 116 of Exhibit E).

115. Mr Johnston provides his opinion in response to the same questions which were directed to Mr McDonald for his second report [at 2.6], Mr Johnston said that even if the Defendant had indicated well before the clearing, that would not decrease the “ambiguity” as “it would be assumed that the indicator was for the lane change at the end of the overtaking lane, and not a turn into an off road area.” This is contrary to the evidence. In her statement, the Defendant said that she made the lane change from the slow lane to the soon-becoming single lane about 50 metres before the slow lane ended. In her evidence when being cross-examined, she told the Court that she couldn’t remember when she had merged into the right-hand lane but had done so before commencing her turn into the clearing. There is no suggestion in the evidence that the activation of the indicator was for any purpose other than to make the turn into the clearing. Furthermore, the Plaintiff’s clear evidence was that he only noticed the right-hand indicator at the very last moment, causing him to take evasive action. Nowhere in his evidence does he say that he ever saw the Defendant’s vehicle in the slow lane. In fact, he said when he first noticed the Defendant’s car it was in the right hand lane [T15.43].

116. Mr Johnston’s theory concerning the ambiguity of the Defendant’s conduct is further weakened by reason of the fact that the Plaintiff had on previous occasions seen vehicles parked in the clearing, into which the Defendant was turning. Although, he did say that he had always “assumed” that cars in the clearing had entered left from the southbound lane, as he was mistakenly under the assumption that cars were not permitted to turn right from the northbound lane.

117. The other difficulty with the opinion of Mr Johnston is that throughout, he has proceeded on the erroneous assumption that the Defendant “braked and turned suddenly” [2.2]. This is contrary to the evidence of the Defendant which, when read fairly, warrants a finding that she began to indicate and brake about 65-70 metres before the clearing. It is also inconsistent with the unchallenged evidence of Ms Flach that the slowing of the vehicle by the Defendant was not sudden, but a “gradual slowdown”. At [2.11] Mr Johnston stated, “in any event, this again misses the point that if the indicator was on for that period of time, (Mr McDonald suggested 20 seconds) any reasonable driver in a position of the claimant would assume that it was for the merge at the end of the overtaking lane and was, therefore, by definition, ambiguous.” Again, this is not consistent with the evidence and, in any event, the Plaintiff at no time observed the Defendant in the slow lane. At [2.12] Mr Johnston stated,

“Mr McDonald makes various suggestions that it was not the Insured Driver slowing, but the Claimant who came rapidly upon the Insured Driver. I don’t understand this logic as there is no suggestion that the Claimant was rapidly gaining speed so the only reason he would suddenly, rapidly gain on the Insured Driver was if the Insured Driver slowed down and there appears to be no dispute that the Insured Driver did indeed slow down to make the right hand turn so I do not understand what the alternative hypotheses is that Mr McDonald is suggesting.”

118. Again, this misrepresents the evidence. There was, in fact, evidence from the Plaintiff that he observed the Defendant’s vehicle, at a distance – initially 160 metres, then at 80 metres, then at 40 metres – during which time, he maintained his speed of 75 or 80 kilometres per hour. The only available inference is that the gap between the two vehicles was closing, because the Defendant was slowing her vehicle. Next, Mr Johnston sought to challenge Mr McDonald’s answer to question 3 at [2.20] he stated,

“Clearly, this area (that is the clearing) cannot be discerned as a parking area from either of these position (referencing figure 2.2 and 2.3), indeed in my opinion it cannot even be seen, so given that the Insured Driver was unfamiliar with the area, had no knowledge of this offroad area, and by their own statement were actively looking for somewhere to stop, Mr McDonald’s hypothesis is highly improbable as it is effectively impossible that they had made a decision at this point to indicate and brake for something they cannot identify.”

119. Again, the difficulty with Mr Jonhson’s opinion in this regard is that it is contrary to the evidence of both the Defendant and her passenger, as to at what point she started slowing and that the slow was gradual, and not sudden.

120. I also do not accept Mr Johnston’s response to question 4 (commencing at [2.21]). At [2.22], he starts by saying that “I agree that if at all possible, the claimant should have slowed and stopped within the northbound lane” and then goes on at [2.23] to state:

“When the Claimant was faced with the situation where he had to take an emergency evasive manoeuvre to avoid striking the Insured vehicle swerving right at the time he attempted it may have seemed a viable avoidance option further indicating that he was completely unaware of the Insured’s Driver’s intention due to its ambiguous nature.”

121. Once again, this aspect of Mr Johnston’s opinion is contradicted by the evidence. The reason that the Plaintiff needed to take an emergency, evasive manoeuvre was because he failed to observe the Defendant’s vehicle indicating and slowing, despite having the vehicle in his view for at least 160 metres. I also reject the repeated reference to the Defendant’s intention being “ambiguous” as at no time did the Plaintiff see the Defendant in the slow lane.

122. Mr Johnston’s reasoning in relation to the remaining questions is further infected by the fact that it is not supported by the evidence, and in fact, is contradicted by the evidence. In any event, negligence on the basis that the Defendant created some sense of ambiguity in the mind of the Plaintiff is not a matter which has been pleaded.

Joint report of experts – 12 May 2025

123. In response to question 25, both experts agreed that a three second gap is a safe following gap to a vehicle ahead. Again, I note that the Plaintiff was travelling 7.2 seconds behind the Defendant’s vehicle, and that that gap closed only by reason of the Defendant slowing by applying her brakes, and, by the Plaintiff not reacting to that circumstance by also slowing his motorcycle.

124. It was in answer to question 25, in the joint report, where the experts grappled with the central issues. The question read:

“25. If the Plaintiff has about a three second reaction time after seeing the Defendant’s vehicle come to a stop, could the Plaintiff have braked and avoided a collision?”

125. The difficulty with that question is that it contains two assumptions, which are not supported by evidence. The first is that the Defendant’s vehicle came to a complete stop. The second is that the Plaintiff had a three second reaction time.

126. The Plaintiff told the investigator, MJM Corporate Risk Services, that he “noticed a small white vehicle in front of him had suddenly indicated right and come to a complete stop. The Plaintiff reported that this left him no time, three to four seconds, to decide what to do.” This account is contradicted by the evidence given by the Plaintiff in Court. He said he first noticed the vehicle when he was about 160 metres behind it (see [15.39]). He said that the Defendant’s vehicle was driving in the right hand lane, in the same direction of travel as the Plaintiff. This has the Defendant’s vehicle in the right hand lane from the time the Plaintiff first saw it, which undermines the ambiguity hypothesis advanced by Mr Johnston.

127. Further, the Plaintiff said that when he commenced his move into the right hand lane, the Defendant’s vehicle was 80 metres ahead of him. After moving into the right hand lane, the Plaintiff noticed the vehicle was about 40 metres ahead of him, and still travelling.

128. None of this evidence is consistent with the principal assumption made by the experts in answer to question 25. Putting to one side the assumption that the Plaintiff was travelling at 75-80 kilometres per hour seems to be broadly consistent with the evidence, they also assumed that the Plaintiff had a distance of around 62-67 metres to take action, including the perception response time and braking (being three seconds of travel, at 75-80 kilometres per hour).

129. Struggling to answer the question at 25, the experts state at page 258, Exhibit E:

“There is no particular evidence that allows the gap or separation between the parties to be known, just as there is no particular evidence that other topics such as indicator use, rate and duration of braking by the Defendant, and duration (of) the Plaintiff’s head check. All of these matters must be determined by the Court.”

130. In order for the Court to determine whether or not the Defendant breached her duty of care to the Plaintiff, it is not necessary to determine the duration of the Plaintiff’s head check. As to the other matters, findings of fact can reasonably be made from the evidence given by both the Plaintiff and the Defendant, and her passenger. That includes the following:

131. the Plaintiff first observed the Defendant’s vehicle 160 metres ahead of him;

132. at that time, the Defendant’s vehicle was in the right hand lane;

133. the evidence of the Defendant, which I accept, that she indicated to turn right and commenced slowing her vehicle, at about 65-70 metres from the south of the clearing;

134. the evidence of Ms Flach, which I accept, that the vehicle was slowed gradually and it was not a sudden slow down;

135. the evidence of Ms Flach, which I accept, that the Defendant was not travelling very fast;

136. the observation of the Plaintiff that the gap between his motorcycle and the Defendant’s car was closing over a distance of 160 metres, which permits a reasonable inference that as his motorcycle was not increasing in speed, the Defendant’s vehicle was slowing.

137. The experts then engaged in a process of reasoning, disconnected from those facts, and involving a level of speculation which was unhelpful. For example, Mr Johnston stated (page 259, Exhibit E):

“In the agony of the moments, and being unsure of the driver’s intentions, the Plaintiff has stated that he deliberately attempted to steer to his right around the suddenly braking vehicle, but the vehicle had continued to turn right, eventually intercepting with his path.”

132. And (page 259, Exhibit E):

“It is therefore my opinion that a reasonable driver faced with this situation it is appropriate even on Mr McDonald’s analysis in the agony of the moment to choose an evasive swerve to avoid an inevitable collision.”

133. I wholly reject that opinion, as it does not accord with the facts as I find them to be. Mr McDonald also engaged in analysis which was of no assistance.

134. The failure of the expert evidence perhaps can be explained by the fact that the reports were prepared prior to the witnesses giving evidence.

135. The experts were, however, called to give evidence concurrently.

Concurrent evidence of experts – 21 May 2025

136. Regrettably, at least Mr Johnston had not read the evidence prior to coming into Court to give evidence [T115.21].

137. The level of conjecture engaged in by the experts continued in evidence. The cross-examiner asked Mr McDonald to assume that the Defendant indicated 50 metres from the point of impact, and that, at that time, the Plaintiff was travelling 40 metres behind her. These assumptions, once again, are not supported by the evidence. Nevertheless, Mr McDonald expressed the following opinion based upon those assumptions [T97.20]:

“So what I’ve calculated from those numbers, are, that the Defendant would have slowed over a period of 6 seconds, and that the –sorry, the Defendant would have slowed over 6 seconds; the Plaintiff would be around 2 seconds behind the Defendant initially, which would give the Plaintiff 8 seconds to slow and stop behind the Defendant, and I believe that it’s possible to do so. Quickenden: When you say possible, are you assuming heavy braking by the Plaintiff? Witness McDonald: I would describe it as moderate braking; higher than typical, but not heavy braking.”

138. Mr Johnston challenged Mr McDonald’s conclusion on the basis that his analysis failed to consider the closure of the two vehicles, that is to say that, whilst the Defendant’s vehicle was braking, the motorcycle was still travelling at 80 kilometres per hour.

139. Mr Johnston was unable to assist without doing, “the proper projection” [T99.4].

140. Counsel for the Plaintiff then engaged in a further speculative exercise with the experts, asking them to assume that the Defendant went from the slow lane into the right hand lane “at the last point of the overtaking lane” [T100.49]. Questions relating to this late merging manoeuvre by the Defendant continued over several pages, [T100 and following]. This line of questioning is contrary to the evidence of the Plaintiff who says that when he first saw the Defendant, her vehicle was 160 metres away, and in the right hand lane.

141. Overall, I found the expert evidence, both in the reports and in Court, unhelpful.

142. Counsel for the Plaintiff then attempted to ask questions based on an assumption that the Defendant first indicated 10-15 metres away from where the collision occurred, stating that this interpretation was consistent with the Plaintiff’s evidence [T113.12]. The Plaintiff’s expert ultimately agreed with the proposition put by the Court [T113.44]:

“HIS HONOUR: 10-15 metres is an insufficient time for him to perceive and react at all. WITNESS JOHNSTON: Yes.”

143. The questioning of the expert witness by Counsel for the Plaintiff ended seemingly abruptly at [T114.23], without the experts being adequately taken to the evidence in the Hearing.

144. Counsel for the Defendant then engaged in questioning Mr Johnston [T114.27-T115.15]:

O'DOWD: Thank you, your Honour. I'll just ask this to Mr Johnston. Would you agree with me that, for a vehicle traveling on a roadway, who was coming up on a vehicle in front of that vehicle, and they were both moving, the most fundamentally important assessment that must be made by the driver of the second vehicle is the closing speed of his vehicle relative to the vehicle in front?

WITNESS JOHNSTON: As best he can, yes, but it's a difficult thing to do, potentially.

O'DOWD: Yes. Every driver, every time they drive a car, has to make that assessment, don't they? Otherwise, you'd run into the back of every car that was in front of you.

WITNESS JOHNSTON: Yes.

O'DOWD: If someone were to say that they hadn't formed any view as to the speed at which the vehicle ahead of them had been traveling as they approached that vehicle, that would be a fundamental failure by that driver to abide by the most fundamental principle of driving, wouldn't it?

WITNESS JOHNSTON: I think you're asking me to get inside a driver's head there. What I can say is I don't evaluate the speed of every vehicle in front of me, but I evaluate if I'm concerned about it. I don't I wouldn't necessarily evaluate that he's doing the same as me. He's slightly less. He's slightly more. I'm evaluating vehicles ahead of me, and if there there's a significant differential and I'm concerned, then I might have some realisation if I can tell, but I wouldn't necessarily say that I could tell you every vehicle that was always in front of me that I've made that specific estimate.

O'DOWD: But in a scenario like this, when you have a significant opportunity by way of a straight section of road after the turn after the curve that approaches this area to observe the vehicle in front of you relative to the speed at which you're traveling, you have a good opportunity to do that, don't you?

WITNESS JOHNSTON: Correct. I would make an assumption that vehicle is not of concern to me. He's traveling away from me at a similar speed, and I'm far enough back.”

145. At [T115.23], Mr Johnston was asked about the observations made by the Plaintiff at 160 metres, 80 metres, and 40 metres from the Defendant’s vehicle, and when asked whether the only inference one can draw from that evidence is that the Defendant’s vehicle is progressively slowing, his answer was evasive and confusing.

146. Mr McDonald, on the other hand, agreed with the proposition that the only inference is that the Defendant’s vehicle was slowing.

147. The following exchange then occurred between Counsel for the Defendant and the witness, Mr Johnston [T116.7-116.15]:

“O'DOWD: Your Honour, yes, if I might just Mr Johnston, then, please. Mr McDonald, as well, if you feel the need. There being no impediment to the driver coming from behind to observing that phenomena, if I can put it that way, it's incumbent upon the rear placed driver to match his speed accordingly to avoid colliding with the vehicle in front?

WITNESS JOHNSTON: I'd more say it's incumbent upon him to maintain a safe gap to the vehicle in front, based on its speed. He doesn't have to match its speed, but he has to, if he starts to get too close, slow down relative to them.”

SUBMISSIONS

148. Both Counsel addressed, in writing (MFIs 5 and 6 for the Defendant and Plaintiff, respectively) and orally.

Submissions for the Plaintiff

149. Counsel for the Plaintiff commenced his oral submissions by referencing a submission of the NSW Court of Appeal in the matter of Ayre v Swan [2019] NSWCA 202. In that case, the Defendant was travelling northwest on Lake Road, Port Macquarie, as she sought to make a right hand turn into a commercial driveway. There was oncoming traffic, relevantly, a car driven by Mr Michael Smith, and a motorcycle ridden by the Plaintiff. The headnote records that:

“Mr Swan was travelling behind Mr Smith so that Ms Ayre’s view of the motorcycle was entirely obscured by Mr Smith’s vehicle. Ms Ayre commenced her right-hand turn without coming to a complete stop.”

150. The primary judge found the Defendant negligent and ascribed 50% to the Plaintiff, by way of contributory negligence.

151. Justice Basten upheld the appeal and concluded that the Plaintiff was at fault, and the Defendant had not breached her duty of care.

152. Justices McCallum and Macfarlan found the Defendant was negligent, by not slowing to a point where she could see both lanes of oncoming traffic, with no blind spot, before commencing her right hand turn. Contributory negligence on part of the Plaintiff was assessed at 80%. In my opinion, the facts relating to that decision are not at all analogous to the facts in this case for the following reasons.

153. First, here the Defendant did not collide with a vehicle travelling south, whilst making a right-hand turn. In fact, her evidence was that there was no oncoming traffic, and it was safe to make the turn.

154. Secondly, the presence of the Defendant’s vehicle in Ayre v Swan was concealed from the Plaintiff by the vehicle in lane two. In the present case, the location and existence of the Defendant’s motor vehicle was known to the Plaintiff for a distance of at least 160 metres. His view was clear and unobstructed.

155. Ultimately, Counsel for the Plaintiff principally relied upon the decision of the Court of Appeal as being “indicative of how reasonable minds differ”, referencing the differing approaches adopted by the primary judge, Justice Basten, and Justices McCallum and Macfarlan. I accept that general proposition.

156. Counsel for the Plaintiff identified the risk of harm as being, “a collision from vehicles travelling behind the Defendant when the Defendant was making a right hand turn.” [T128.25].

157. In written submissions (MFI 6), the question was asked, “what were the precautions a reasonable driver would have undertaken to prevent the risk from materialising?” Counsel for the Plaintiff answered his own question by stating, “in practical terms, the Defendant breached the duty of care to the Plaintiff if the Plaintiff proves the civil standard that the Defendant did not act, or omitted to act, in accordance with the standard of a reasonably prudent driver in the circumstances.” [paragraph 4].

158. Under the heading “Relevant Disputed Facts”, the following matters were identified:

“1. Where on the single lane the Defendant observed a clearing to stop.

2. Where on the roadway the Defendant indicated to turn right and brake, for example, distance from where the Defendant made the actual right hand turn, or point of impact (sic)

3. How far from the Defendant’s vehicle was the Plaintiff’s motorcycle when the Defendant braked and indicated to make a right hand turn

4. Did the Defendant look behind her, specifically, into her rear vision mirrors, before or after the Defendant made the decision to make the right hand turn into the clearing”

159. I will consider each of the disputed facts in turn.

Disputed fact 1 – where on the single lane the Defendant observed a clearing to stop

160. There was no evidence adduced which permits an answer to this question. Inferentially, the fact that the Defendant indicated and started braking at 65-70 metres from the point of impact suggests that the clearing was at least observable from that point. In oral submissions, Counsel for the Plaintiff again revisited the highly improbable, if not impossible suggestion that the Defendant indicated just 10-15 metres before she turned, before later conceding that that could not have been the case [T137.32]. My impression of the evidence of the Defendant was that she intended to convey that she began slowing and indicating at 65-70 metres from the point of impact. Notwithstanding Counsel submission that “it’s evidence that (I) can’t rely on” [T133.17], I do accept that evidence and I make that factual finding.

161. It was then submitted that “There is no difficulty with your Honour accepting the Plaintiff's evidence that when he saw the brake light and right hand indicator become illuminated, he was about 40 metres from her.” [T133.45]. The difficulty with accepting that evidence is that it is highly improbable that that occurred. As raised with Counsel for the Plaintiff in oral addresses (at [T133.48]), if the Plaintiff saw the brake light and indicator at just 40 metres, then adopting the Plaintiff’s own expert’s opinion as to perception and reaction time, there would have been no opportunity whatsoever for the Plaintiff to engage in any evasive action. In answer to this proposition, Counsel for the Plaintiff stated, “But your Honour, what's the problem with accepting the man who was there?” [T134.7]. The difficulty in accepting the Plaintiff is that his evidence on this point was contrary to the incontrovertible fact that, prior to the impact occurring, he had perceived the risk and reacted to it by moving his motorcycle across double unbroken lines, and into the southbound lane.

162. Counsel for the Plaintiff then took me to photographs attached to the experts’ joint report, in an attempt to establish a fact which was never put to the Defendant or the passenger. That is, that the clearing would not have been visible to the driver or the passenger, in order to give sufficient notice to vehicles travelling behind her, by indicating and braking, prior to commencing the turn. Reference was made to photographs ‘F’, ‘G’, ‘M’ and ‘N’ in an attempt to demonstrate that the Defendant could not have seen the clearing until she was almost upon it. I find all of those photographs unhelpful and of no assistance in establishing the fact sought to be proved by the Plaintiff. When Counsel for the Plaintiff was told that photograph ‘G’ was of no assistance, because there were other vehicles travelling in the overtaking lane concealing the clearance, it was submitted “All that is true, but you can use your imagination. I think F helps that. Use your imagination, if those cars weren’t there.” [T136.20].

163. Counsel for the Defendant also objected to the submission being made, on the basis that at no point was the Defendant taken to these photographs to establish that the clearing was not visible at the point where she began applying the brakes and indicating her right hand turn.

164. Counsel for the Plaintiff then submitted that the view which was undertaken by the Court was probably more helpful in ascertaining that fact, however, at no point during the view did Counsel for the Plaintiff raise this issue or attempt to identify the point at which the clearing would have become apparent (transcript of view at [T90-92]). Regrettably, neither of the experts engaged in the process of measuring that distance.

165. It was the Defendant’s case that she saw the clearing 65 to 70 metres away. Counsel for the Plaintiff indicated that he challenged that and said, “we’ve referred to the unreliability of her evidence, specifically in relation to that and generally.” [T137.23]

166. The reference to the unreliability of the Defendant is presumably a reference to MFI 7 “Defendant’s failed memory and other matters”. With respect, I do not accept that broad criticism of the Defendant. She was attempting to recall events from more than four years earlier. It is to be expected that she would not recall every single fact, including, for example, whether she looked in her rear vision mirror. In fact, her concessions as to not recalling specific events reflects favourably upon her as a credible witness.

167. The same might be said of the passenger, Louisa Flach. In MFI 8, counsel for the Plaintiff identifies five matters about which she said she had no recollection, including speed zones and the number of lanes. Again, it is hardly surprising that a witness, four years after the event would not recall matters not material to the accident. She was clear in her recollection that the Defendant gradually slowed her vehicle, and prior to that, was not travelling very fast. This evidence was not challenged, and it is evidence which, in the circumstances, I accept.

168. In the end, the Plaintiff’s case seemed to boil down to the proposition that the Defendant failed to exercise reasonable care and skill in two respects, namely:

(a) first, that the Defendant failed to look into her rear vision mirror, before slowing and turning; and, (b) that she ought not to have slowed and turned in the position which she did as it created a hazard for vehicles following her.

169. The evidence does not establish that she did not look in her rear vision mirror before slowing and indicating. She said (at [T54.29]) that she could not recall if she did, and then [T54.32]:

“Q. You can't recall whether you looked in your revision mirror?

A. No. As I said, it's a bit of an automatic process of slowing down and turning.

Q. You appreciate that it was important for you to look into your revision mirror to see if there were any vehicles travelling nearby in your direction?

A. Yes.”

170. In re-examination, the following evidence was given [T62.21]:

“Q. Ms Stackman, you remember you were asked some questions earlier on about the rear view mirror.

A. Yes.

Q. And you said frankly as you sit here now you can't recall, and you made a comment which I made a note of; you said, "It's an automatic reaction", or words to that affect, do you recall saying that?

A. Yeah, automatic process of, yeah.

Q. So in terms of when you were going to make any turn, what is your practice when comes to looking in the rear view mirror?

A. Yeah, I would generally look in the mirrors, indicate, slow down, go through my gears, and then turn.

Q. And is there any reason why you might think that you wouldn't have followed your usual practice on this occasion?

A. I don't believe so.”

171. Overall, the evidence would tend to suggest that the Defendant did in fact look into her rear vision mirror prior to slowing and indicating.

172. The only evidence which supports the Plaintiff on this question arises by the Defendant’s evidence that she didn’t see the Plaintiff prior to the collision occurring. It might be said this gives rise to an inference that she did not look into her rear vision mirror. I, however, have doubts as to whether that is a reasonable inference to draw, or whether it’s merely conjecture. The reasons for those doubts arise from the state of the Defendant’s evidence as to her practice and also the evidence that when the Plaintiff first saw the Defendant’s vehicle, he was about 160 metres away and her vehicle was in lane two. The Plaintiff was in the slow lane. There is no evidence that had she looked in her mirror prior to slowing and indicating for 65 to 70 metres from the point of impact, that the Plaintiff would have been in a position on the roadway to be seen by the Defendant in using her rear vision mirror. In those circumstances, I consider the proposed inference to be no more than conjecture.

173. The second alleged breach of duty is also problematic. As previously noted, I accept the evidence of the Plaintiff that he first saw the Defendant’s vehicle at a distance of 160 metres, but, at no time prior to immediately before the collision did anything to respond to her indications that she was intending to make a right hand turn by the application of the brakes and use of the right hand indicator. Instead of taking appropriate action, the Plaintiff continued riding his motorcycle at, or about, 75 to 80 kilometres per hour, until some form of contact with the Defendant’s vehicle became inevitable.

174. The second alleged breach is also undermined by my acceptance of the evidence of the Defendant, that she began indicating and slowing at about 65 to 70 metres from the point of impact.

175. The second alleged breach is also at odds with the opinion, originally expressed, by Mr McDonald, in his report dated 17 October 2023. I should, at this point note, that I do prefer the opinion of Mr McDonald to the opinion of Mr Johnston. Mr Johnston’s opinion was based almost entirely upon the assumption that the Defendant braked suddenly to a stop prior to commencing the turn. This assumption is entirely contrary to the evidence.

176. Returning to Mr McDonald’s opinion, I accept his conclusions at page 40 of his report [5.47]:

“From 80 km/h, a motorcycle can be braked to a stop in 37 metres.”

177. And [5.48]:

“The distance a motorcycle can be braked to a stop (37 metres) is less than the distance required to veer (40-58 metres). Therefore the claimant could have braked and come to a stop, thereby avoiding a collision entirely.”

178. I accept Mr McDonald’s opinion that [6.7I, page 45]:

“If the claimant had braked rather than veered, he could have brought his motorcycle to a stop before reaching the insured and avoiding a collision and injury entirely.”

179. Submissions were made for the Plaintiff regarding road rules 45, 48(2), and 49.

180. Regulation 45 is unhelpful as it merely defines the words “changes direction to the right”, as including turning right.

181. Regulation 48 relates to giving a right change of direction signal. Sub-regulations (1) and (2) are relevant:

“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) and, if subrule (3) applies to the driver, that subrule.

(2) The driver must give the change of direction signal for long enough to give sufficient warning to other drivers and pedestrians.”

182. Subrule 3 has no application.

183. Regulation 49 simply states that the driver of a vehicle must give a right change of direction signal by operating the vehicle’s right direction indicator light.

184. Having accepted the evidence of the Defendant that she commenced indicating and slowing at about 65 metres from the point of impact, I am satisfied that she gave the change of direction signal for “long enough to give sufficient warning” to the Plaintiff, and that Regulation 48 was complied with by the Defendant.

185. Counsel for the Plaintiff also referred to a decision of the High Court in the matter of Burns v Lipman [1975] HCA 2. The appellant was the Defendant; the respondent was the Plaintiff. The Plaintiff claimed damages for personal injuries suffered by him, alleging the Defendant was negligent. At first instance, it was found that the Defendant was not negligent but that the Plaintiff was. The matter then went to the Full Court of the Supreme Court, which allowed the appeal, setting aside the orders at first instance. The circumstances were that the Plaintiff intended to turn into a driveway entrance. The Plaintiff had been driving along the highway at an average speed, before commencing to slow down. He did not observe the Defendant’s car behind him. The Defendant became aware of the Plaintiff’s car in front of her, and that it gradually slowed down. The Defendant drew close to the rear of the Plaintiff’s vehicle and continued behind it at a slow speed for some time. The Defendant saw no signal indicating that the Plaintiff was intending to turn right. The Defendant commenced to overtake the Plaintiff’s vehicle, and when the front of her car was about level with the back of the Plaintiff’s car, the Plaintiff’s car moved over in front of her and commenced to make a right-hand turn. A collision occurred. The Full Court found negligence on the basis that the Defendant should have sounded the horn of her vehicle, prior to attempting to pass the Plaintiff’s vehicle. The High Court found in favour of the Defendant, set aside the orders of the Full Court, and dismissed the appeal.

186. Whilst there are some factual similarities between Burns and the present case, it does not, in my view, assist the Plaintiff. The Plaintiff in Burns, failed to indicate his intention to make a right hand turn, unlike the Defendant in this case, who indicated over a distance of some 65 to 70 metres.

Submissions for the Defendant

187. Counsel for the Defendant submitted that the Plaintiff had failed to establish negligence on the part of the Defendant and, in any event, had not discharged the burden of proving causation under s 5D of the CLA.

188. He argued that the physical and geometric characteristics of Woy Woy Road provided no impediment to the Plaintiff’s ability to observe the Defendant’s vehicle. The Plaintiff admitted he did not assess the Defendant’ speed or closing distance, focusing instead of his lane change manoeuvre. Counsel submitted that this inattention was the proximate and sole cause of the accident.

189. It was submitted that the Defendant commenced indicating and slowing down approximately 65-70 metres before the turn and that her braking was gradual, not sudden. This was supported by the evidence of Ms Flach, the passenger, who described a gradual slowdown and was not challenged on that point.

190. Counsel for the Defendant submitted that the Plaintiff’s version of events – that the Defendant indicated and braked only 10 to 15 metres before the turn, was implausible and contrary to both eyewitness and expert evidence. He argued that the Plaintiff’s perception of the sudden manoeuvre was a result of his own delayed attention following a head check and mirror check during a lane change.

191. Counsel submitted that the Defendant’s inability to recall whether she looked in her mirror did not establish that she failed to do so. I’ve already dealt with this point above.

192. Counsel for the Defendant submitted that the Plaintiff’s assertion – “if he could see her, she could see him” – was over simplistic and failed to account for the dynamics of mirror visibility and lane positioning. He submitted that there was no evidence identifying the precise moment the Defendant should have looked and failed to do so, nor any evidence that such a look would have prevented the accident.

193. Counsel addressed the road rule concerning the shortest practicable route, submitting that the Defendant’s turn was reasonable and conventional.

194. It was submitted that the Plaintiff’s inattention and failure to maintain a safe following distance were the true causes of the accident. It was submitted that the Defendant’s conduct was reasonable in all of the circumstances and that judgment should be entered in her favour.

FACTUAL FINDINGS

195. In view of the discussion above, I make the following findings on the balance of probabilities:

196. the Plaintiff and the Defendant were both travelling in a northerly direction on Woy Woy Road;

197. the Plaintiff was travelling at a speed of about 75 to 80 kilometres per hour prior to engaging in an emergency steer to the right;

198. for about 65 metres from the point of impact, the Defendant indicated her intention to turn right and commenced braking;

199. the Defendant was travelling at a reasonable speed and slowed her vehicle gradually, not suddenly, prior to the collision;

200. the Plaintiff first observed the Defendant’s vehicle at a distance of 160 metres, at which time the Defendant’s vehicle was travelling in the right hand lane;

201. when he next observed the vehicle the distance between them was just 80 metres;

202. his next observation of the Defendant’s vehicle was that there were 40 metres between the Plaintiff and the Defendant;

203. I draw the inference from the Plaintiff’s own evidence that as his speed remained unchanged that the Defendant’s vehicle was slowing over that distance;

204. I find that the Defendant most likely did look in her rear vision mirror before indicating and slowing, as is her usual practice;

205. at the point of impact, the Plaintiff had crossed illegally onto the incorrect side of the roadway;

206. at the point of impact, the Defendant had commenced her legal right hand turn into the clearing;

207. from 80 kilometres per hour, a motorcycle can be braked to a stop in 37 metres;

208. if the Plaintiff had braked rather than veered, he could have brought his motorcycle to a stop, avoiding a collision and injury entirely.

CONCLUSION

196. It follows from my factual findings and earlier discussion of the evidence and submissions that I find that the Defendant exercised reasonable care and skill in slowing her vehicle and commencing a right hand turn. I consider that she behaved as a reasonable person would in the circumstances.

197. I accept the submission on behalf of the Defendant that the sole cause of the accident was the negligence of the Plaintiff in failing to observe the Defendant’s slowing vehicle and right hand indicator. Had the Plaintiff acted with reasonable care and skill, the accident would not have occurred.

198. If I am mistaken about the fact that the Defendant was not in any way negligent, then I would find contributory negligence within the meaning of s 5R of the CLA that is, that the Plaintiff failed to take precautions against the risk of harm. Further, I would access contributory negligence at 100%, thereby defeating the Plaintiff’s claim.

ORDERS

199. I make the following orders:

200. verdict and judgment for the Defendant;

201. the Plaintiff is to pay the Defendant’s costs, as agreed or assessed;

202. liberty to apply within 7 days to vary the costs order;

203. in the event that the Plaintiff files a Notice of Appeal, the parties are to agree errata and email the table of errata to my associate within 28 days of such notice being filed, noting that there is confusion in the transcript as to which Counsel was talking at various times.

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