APPEAL - Negligence - motor vehicle accident - motorcycle in bicycle lane - failure to keep a proper lookout - no breach of duty of care

Magistrates Court Act 1930 (ACT) s 274

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424

Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531

Mr P Deakin QC with Mr A Davis (First and Second Respondents)

1. At about 4.45 pm on 22 October 2009 at the intersection of Tom Price Street and Canberra Avenue in Fyshwick in the Australian Capital Territory, a motorcycle being driven by Mr Goreski (the appellant) collided with a motor vehicle being driven by Mr de Costa (the respondent). The appellant was injured.

2. The intersection is illustrated at pages 587 and 628 (marked by the respondent), page 689 (marked by the independent witness, Mr Urban) and at other places in the Appeal Book (AB).

3. The appellant approached the intersection from the west (heading towards Queanbeyan). Inferentially, the lights of the motorcycle were illuminated: AB at 710. Contrary to traffic regulations, the appellant drove in a lane reserved for bicycles. The west-facing traffic lights (facing towards the appellant and governing vehicles that intended to move straight through the intersection rather than turn left) were red. Three lanes of traffic heading west were stationary at the lights. The appellant slowed to about 40 kilometres per hour (kph). As soon as the lights turned green, he accelerated rapidly to 60-80 kph, "gunning it" through the intersection so that he could move from the bicycle lane back into the kerbside vehicle lane before the stationary traffic moved off from the lights. The appellant's conduct of overtaking to the left breached the traffic regulations. It was not until the last moment that the appellant saw the respondent's vehicle entering the intersection from his left. He braked, managing to slow to about 40kph by the time of impact.

4. The respondent approached the intersection from the north, intending to turn east (left) into Canberra Avenue and travel in the same direction as the appellant. His turn was governed by a "give way" sign, which required him to give way to traffic travelling in the direction in which the appellant's motorcycle was travelling. The respondent looked to the right twice. Although there was no obvious visual impediment, he failed to see the appellant. The respondent proceeded past the "give way" sign and into the intersection at a speed of about 10 kph. When the respondent's vehicle entered the kerbside vehicle lane of Canberra Avenue, the appellant's motorcycle collided with the respondent's vehicle on the driver's side, near the front wheel and front door.

5. The appellant sued the respondent and the respondent's insurer. On 23 December 2013, the Magistrates Court dismissed the claim, finding that the appellant had failed to establish negligence by the respondent. The Court did not go on to consider questions of contributory negligence or damages.

7. The appeal is pursuant to s 274 of the Magistrates Court Act 1930 (ACT). Such an appeal is a rehearing on the evidence with a power to receive new evidence. The appellate court must conduct a "real review", weighing conflicting evidence, and drawing its own inferences from the undisputed and established facts, but bearing in mind the advantages of the primary judge in relation to fact-finding (including a great advantage in assessing the credibility of witnesses): Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531 at 551, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 127-128.

8. Relevantly, at AB 49-51 the primary judge found:

The burden of establishing a claim falls on the plaintiff on the balance of probabilities. A breach of traffic law is not definitive of whether a driver has acted negligently. (Her Honour then referred to Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424, citing relevant passages at [5] and [6]).

A driver is not required to anticipate every possibility on the road or to take more than reasonable precautions in light of any particular possibility. In this case (the respondent) drove in accordance with what would be expected of a reasonably prudent driver in all the circumstances in relation to his entry onto Canberra Avenue. He was travelling at an appropriate speed and was seen to look before entering the intersection...

Does it follow, therefore, that (the respondent) failed to keep a proper lookout as is claimed? (The appellant) approached the busy intersection, apparently within the speed limit, and crossed into that intersection consistent with the green light. However, (the appellant) did so from a bicycle lane, in the process of overtaking traffic to (its) left. He did so at a speed that a person who had looked at the traffic coming from the right had no reasonable opportunity to see him.

He was positioned in a location which is outside of normal expectations for a motorcycle. (The appellant) had failed to observe (the respondent's) vehicle that was likely to join his line of traffic, even though it was clearly observable to traffic immediately to his right. (The appellant) travelled too fast for the circumstances. He failed to keep a proper lookout. He failed to take appropriate precautions for his own safety and thereby put other road users at risk as well as himself.

Whilst another look from (the respondent) in the last few metres before breaching the give way line into Canberra Avenue may have allowed him to see (the appellant's) approach, it is not reasonable to have expected him to anticipate the emergence of a motorbike in the wrong lane and setting off from such a speed immediately the light turns green and, in anticipation of such a possibility, to put in jeopardy his own entry into Canberra Avenue by being required to position his neck at an awkward angle to look backwards while executing a left-hand turn.

9. In essence, the primary judge was not satisfied on the balance of probabilities that the standard of care of a reasonably prudent driver in the respondent's position, who was keeping a proper lookout, required the respondent to examine the bicycle lane with greater scrutiny.

10. There was no dispute about the primary judge's factual findings, which were substantially based on a determination that the evidence of the respondent and the independent eyewitness, Mr Urban, was more reliable than that of the appellant. Further, the appellant accepted that he was guilty of some contributory negligence.

11. The appellant claimed that the primary judge should have found that, in the context of the traffic controls that governed the intersection, the respondent was negligent because he failed to keep a proper lookout. The appellant submitted that:

(a) When considering the duty of a reasonably prudent driver to keep a proper lookout, the primary judge erred in fixing a standard of care that was too low;

(b) The respondent should have paid greater heed to the bicycle lane before proceeding into the intersection;

(c) The respondent should have considered the traffic lights facing towards him with a view to determining when the west-facing lights would turn green; and

(d) When he looked in the direction from which the appellant was coming, the respondent should have ensured that he had an unimpeded view of the bicycle lane.

12. In relation to apportionment for contributory negligence, the appellant asserted that responsibility for the accident should be attributed primarily to the respondent.

13. For the reasons that follow, the appellant cannot succeed on any of the grounds upon which he mounts his appeal against the primary judge's finding that the respondent was not negligent. There is no need to consider the question of apportionment.

The respondent's failure to observe the "give way" sign

14. First, the appellant submitted that, because the traffic regulations required the respondent to give way to the appellant in accordance with the "give way" sign, when determining whether the respondent had breached his common law duty of care, "primacy" should have been given to the respondent's failure to give way; if the courts failed to give "primacy" to traffic law then chaos would reign.

15. In her reasons, the primary judge quoted at length from the High Court decision of Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424. Of itself, a breach of traffic law does not establish that a driver has acted negligently. In determining whether there has been a breach of the common law duty, a court must have regard to all the circumstances. Breach of traffic law is a very significant circumstance to be considered in the present case, but it is only one of a number of circumstances. It should not necessarily be accorded "primacy".

Whether the respondent should have scrutinised the bicycle lane more carefully

16. Second, the appellant asserted that the respondent should have scrutinised the bicycle lane more carefully.

17. The respondent gave evidence that he was "mainly focused" on the group of vehicles that was stationary at the lights, which would, at some stage, accelerate from the lights: AB at 131.25. He was not expecting danger from the bicycle lane: AB at 134.17. He looked to the right twice: when he slowed on approaching the intersection; and when he came to the "give way" sign: AB at 125.42. The locations at which the respondent looked to the right are marked on the document at AB 628. The respondent said that he checked the bicycle lane as he came up to the intersection, and would have seen a bicycle had there been one in the lane: AB at 134.25. As he proceeded into the intersection and his vehicle was at a 45° angle to Canberra Avenue, he could have looked again at the bicycle lane on his right, straining to see around the blind spot on his car that arose at that angle, but he did not do so as his attention was focused on the vehicles that were stationary at the lights: AB at 133.35.

18. Prudent drivers must allow for aberrant or unexpected behaviour by other road users, but the extent to which allowance must be made depends upon the degree of risk and all the circumstances. In this case, there were competing demands on the respondent's concentration and he had to assess and balance those risks. The intersection was somewhat complicated. The respondent had to consider the pedestrian crossing at the "give way" sign. He had to focus on the three lanes of the vehicular traffic, which were an obvious and significant danger because they would accelerate from the traffic lights when the traffic lights turned green. He also had to consider the bicycle lane.

19. The respondent did not closely scrutinise the bicycle lane, but he did check it. While a reasonably prudent driver would have expected that a bicycle may travel at a moderate speed along the bicycle lane, such a driver would have assessed as very low or non-existent the risk that a bicycle rider would behave in the manner in which the appellant's motorcycle behaved. It follows that the degree of attention that the respondent gave to the bicycle lane was not unreasonable.

Whether the respondent should have considered the status of the north-facing traffic lights

20. Third, the appellant submitted that the respondent should have considered the status of the north-facing traffic lights for the purpose of assessing whether the west-facing traffic lights (those facing towards the appellant) were about to turn green.

21. This submission is not well founded. Had the north-facing lights been amber or red, the respondent could not have assumed that the west-facing lights were about to turn green. There may have been a right-turn arrow that complicated the phasing of the lights. Further, guesswork in relation to the phasing of the lights could only have distracted the respondent from concentrating on the other matters demanding his attention.

Whether the respondent should have ensured that his line of vision was not blocked by a blind spot

22. Fourth, the appellant submitted that the respondent should have ensured that his line of vision was not blocked by a blind spot on his car.

23. This submission is relevant only if it was a blind spot on the respondent's car that stopped him seeing the appellant. The reason that the respondent failed to observe the appellant was not established. It is true that the appellant must have been visible. One can only speculate about why the respondent did not "see" the appellant when he checked the bicycle lane. Perhaps, at the critical moment, his line of sight was physically blocked by a pole. Perhaps it was blocked by a blind spot on his car; but prior to the respondent's vehicle entering the intersection his vision would not have been blocked by the blind spot referred to in the evidence, because that blind spot occurred only when he looked back at a 45° angle. Perhaps the respondent's vision was affected by glare from the westerly sun. Perhaps he saw the appellant's motorcycle but did not "register" that the object in the bicycle lane was a motorcycle because that was contrary to normal expectations. Perhaps he subconsciously expected that, when the lights changed, the vehicular traffic in the traffic lanes would move off much more quickly than any bicycle in the bicycle lane, and he therefore subconsciously dismissed any traffic in the bicycle lane.

24. The appellant has not established that the respondent breached his duty of care to the appellant. Therefore, the question of apportionment for contributory negligence does not arise.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.