Isho v Skupien

Introduction 1This is a case about an accident at an intersection between a car and a bicycle. They collided with each other. The bike rider was injured, but fortunately not fatally or catastrophically. The driver acknowledges that he had some responsibility for the accident, but claims that it was mostly the fault of the bicycle rider. The bicycle rider says that the driver should be fully responsible for the accident. 2The bicycle rider is the plaintiff in the case and his name is Frank Isho. The car driver is the defendant in the case and his name is David Skupien. What I have to decide is whether Mr Isho should share any responsibility for the accident. I also have to decide whether to award Mr Isho any damages and, if so, what for and how much. 3Mr Richard Petrie of counsel appeared for Mr Isho and Mr William Fitzsimmons of counsel appeared for Mr Skupien. The case was conducted before me sitting in Sydney for some days commencing on 17 March 2014. I do not propose to recite the evidence except where it is relevant to my opinions and findings.

Liability 4Mr Isho gave an account of the accident to the police just over a week after it happened. He also gave evidence in court about the accident. There is conflict between those two accounts in significant areas. Where there is conflict I accept the account that he gave to the police rather than his account in court. The police account was closer to the event and, therefore, more likely to be an accurate recollection. Parts of it were also against his interests which adds to its credibility, in my opinion. The police statement account of the lights being red against Mr Isho is also consistent with Mr Skupien's evidence that the pedestrian lights were red (T142). It is also more likely that the pedestrian traffic lights were red because Mr Skupien's unchallenged evidence is that he had been waiting for more than a minute before deciding to attempt the turn. 5From Mr Isho's statement to the police, I conclude that he was concentrating on the traffic turning left into Justin Street from The Horsley Drive. There was a lot of traffic on The Horsley Drive, some of it indicating to turn left into Justin Street. When "the traffic was clear" and he "did not see any hazard" he thought he "could make it". I think it likely that Mr Isho's focus was on The Horsley Drive left-turning traffic rather than the Justin Street traffic on his right. After all, the Justin Street traffic was facing a red light. If he had looked right into Justin Street more thoroughly, he would have seen a hazard in the form of Mr Skupien's car indicating an intention to turn left. It is clear from Mr Isho's evidence in cross-examination (T120) that he did not see Mr Skupien's indicator and was reassured by the Justin Street traffic being stopped. 6On the other hand, Mr Skupien's focus was also on traffic travelling along The Horsley Drive but on the traffic going straight ahead rather than indicating a left turn into his street. As Mr Skupien acknowledged in his evidence in chief, he was looking for "a gap" (T141). 7Did Mr Isho stop? I think it is likely that he did and I so find. That is because there was a lot of traffic coming along The Horsley Drive, which both men acknowledge, and Mr Isho had to be sure as a cyclist that no car was going to turn left from The Horsley Drive into his line of travel. That makes it inherently likely that he would stop. The Horsley Drive was clearly a major road with heavy traffic and both men were being careful about a danger: in Mr Isho's case a left turning car and in Mr Skupien's case cars travelling straight ahead. But there were for each of them less obvious hazards. For Mr Isho there were cars in Justin Street which were entitled to turn left against the red light. For Mr Skupien, there was the possibility of a pedestrian or a cyclist crossing against the red pedestrian lights. Had Mr Isho paid more attention, he would have seen Mr Skupien's indicator and appreciated his intention to turn left against the red light. Mr Isho was, of course, also crossing against the red light thereby putting himself in danger. 8It seems to me that one obvious reason for the pedestrian lights being red at that intersection was to facilitate traffic from Justin Street being able to turn safely against a red light. On the other hand, accepting, as I do, that Mr Isho had stopped, Mr Skupien did not see him stopped and waiting. That was because, in my opinion, his main focus was on finding "the gap". As it happened, it was not safe to turn left. Extra caution was needed because the lights facing Mr Skupien were red. Pedestrians or cyclists or, indeed, scooter or skateboard riders may be crossing against the red pedestrian lights. The first Mr Skupien knew about Mr Isho was Mr Isho calling out and the collision with his car. As Mr Skupien said, the bike lodged on the front of his car on the numberplate and on the driver's side. So Mr Isho was able to get well forward in front of Mr Skupien's car before the collision. 9I have taken into account what the High Court said in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, recently applied by the Court of Appeal at [73-74] in WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127. So far as culpability is concerned, whereas Mr Skupien did not look carefully enough for a possibly unlawful road user, Mr Isho did not look for a lawful road user. The need for Mr Isho to look was heightened by his own illegal behaviour. He put himself in danger by proceeding through a red light. Mr Fitzsimmons drew my attention to the Court of Appeal's decision in Turkmani v Visvalingam [2009] NSWCA 211, in particular at [55]. Using the language in that paragraph, there was, in Mr Skupien's case, a "falling short of the high standard of vigilance required of a driver in traffic approaching an intersection", but that falling short was, in my opinion, a little more than the "quite small" falling short in Turkmani's case. That was because Mr Skupien was proceeding through a red light, albeit legally. Mr Isho did go against a red pedestrian light, but because he had stopped first, his action would not be described, adapting the expression used in the Court of Appeal as "emerging at a...pace" from behind an obstacle. So far as "causal potency" is concerned, Mr Isho was where he should not have been. He probably assumed he was safe because the traffic lights facing Justin Street were red, but he was wrong in his assumption because of the sign permitting the left turn. On the other hand, it was Mr Skupien whose car hit Mr Isho. Although Mr Skupien just took his foot off the brake and eased the car forward he was, nevertheless, in charge of a car that even at that pace could do a lot of damage to a human being whom it hit. 10Mr Isho bears greater responsibility for the accident, but Mr Skupien should share more than the 25% Mr Fitzsimmons suggested. In my opinion, the appropriate apportionment of liability is to find Mr Isho's contributory negligence to be 65%.