Jarrett v Bugeja & Anor

[2016] NSWDC 309

District Court of NSW|2016-11-01|Before: Mr JJ

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Source facts

Court

District Court of NSW

Decision date

2016-11-01

Before

Mr JJ

Catchwords

TORTS - negligence - motor vehicle accident - determination of negligence issue - determination of contributory negligence issue
(2005) 223 ALR 228 Marien v Gardiner [2013] NSWCA 396 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
205 CLR 254 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
59 ALJR 492 Solomons v Pallier [2015] NSWCA 266 Vairy v Wyong Shire Council [2005] HCA 62

Source

Original judgment source is linked above.

Catchwords

TORTS - negligence - motor vehicle accident - determination of negligence issue - determination of contributory negligence issue(2005) 223 ALR 228 Marien v Gardiner [2013] NSWCA 396 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61205 CLR 254 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 3459 ALJR 492 Solomons v Pallier [2015] NSWCA 266 Vairy v Wyong Shire Council [2005] HCA 62

Judgment (23 paragraphs)

[1]

Table of Contents Nature of case [1] Factual background [2] - [5] Issues [6] - [10] Differing versions of the events [11] - [30] Plaintiff's version [12] - [16] Mr Lopez's version [17] - [22] Mr Bugeja's version [23] - [27] Mr Bugeja's statement dated 31 October 2010 [28] - [30] Credibility and reliability of testimony [31] - [37] Findings on sequence of relevant events [38] - [41] Issue 1 - Negligence of the defendants [42] - [58] Issue 2 - Contributory negligence of the plaintiff [59] - [71] Disposition [72] Costs [73] Orders [74]

[6]

Plaintiff's version of events

The plaintiff said she was driving in the middle westbound lane, downhill on Victoria Road, in conditions of constant heavy rain, with her windscreen wipers in operation. She said that as she approached the exit driveway of McDonalds parking lot which was to her left, she saw the defendants' utility vehicle drive out of those premises, across the kerbside lane, which was also on her left, and she said that she then observed that vehicle travel into the middle of the three westbound lanes in Victoria Road.
The plaintiff said that in those events, she had been driving at about 40kph. She said she had noticed that when the defendants' utility pulled out of the McDonalds driveway, it was driven into a position in the middle westbound lane, about 2 - 3 car lengths in front of the vehicle which she had been following in the course of her journey downhill.
At that time, the plaintiff said that she noticed the brake lights of the vehicle in front of her vehicle had become activated. That vehicle was driven by Mr Lopez. She said she applied the brakes on her own vehicle when she saw the brake lights of Mr Lopez's vehicle come on. She said that when she did so, she could not feel any traction of the tyres of her vehicle with the road. She said that as she pressed hard on her brakes, she felt that her vehicle was sliding with unstable steering. As these events were occurring, she said the vehicle in front of her did the same as she had done, and in those events, the front of that vehicle had struck the rear of the defendants' vehicle, following which her vehicle then slid into the rear of Mr Lopez's vehicle in front. She described the impact of her vehicle with Mr Lopez's vehicle as being hard.
The plaintiff described the attendance of police at the scene. She gave a statement to police that evening, which was recorded in the following terms: "About 8:10am this morning, Tuesday the 30th March 2010, I was driving Westbound on Victoria Road in Drummoyne. I was at a set: of lights which had just changed to green, and I drove off behind a Lancer. I followed the Lancer in lane 2 of 3 over a hill and in the left lane there was a Holden Rodeo stopped behind a parked car. I saw the Rodeo drive across lane 1 into lane two, right in front of the Lancer and broke. I saw the Lancer's brake lights light up. I then saw the Lancer impact with the Rodeo and my car slid into the Lancer and pushed it further forward. I'd say I was going about 35kms an hour when I hit the Lancer. I saw the Rodeo and the Lancer pull to the left in front of the parked car and I followed. I then got out of the car and I Said - "Why did you do that?" The driver of the Rodeo said "I thought it was clear." We then exchanged details. A tow truck was at the scene and he volunteered to tow my car to smash repairs in five dock. About 11am that day I saw my doctor because I had a headache that had been getting worse throughout the day. It was raining heavily at the time of the crash. The front grill, bonnet, bumper bar and front in general were damaged." [Exhibit "C", Tab 2, pp 6 - 7]
The defendants sought to challenge the plaintiff's account by suggesting that in the events of the accident, the front of her vehicle had struck the rear of Mr Lopez's vehicle before it had struck the defendants' vehicle. She denied that suggestion: T175.19 - T175.28; T176.7 - T176.14. The plaintiff also denied that she could have been mistaken about the order of occurrence of the impacts she had described.

[7]

Mr Lopez's version of events

Mr Lopez said that at the time of the accident it had been raining but only lightly. He later qualified that statement by saying there was "a bit of rain": T211.46. He said that in the events leading to the accident, he had beforehand made a left turn from Lyons Road into the left kerbside lane of Victoria Road and had then proceeded downhill on Victoria Road. He said due to the presence of parked cars in that lane, he had moved his vehicle to the centre lane of traffic.
Mr Lopez stated that as he proceeded on that course, a vehicle, obviously the defendants' vehicle, "pulled out from the McDonalds driveway, pulled out, stopped behind traffic, and [he] pulled up behind that vehicle": T210.43 - T210.44.
Mr Lopez stated that after "a few seconds" of being stationary, which he qualified as being "five, six, seven seconds later", his vehicle was struck from behind by the plaintiff's vehicle, and in turn, his vehicle was then pushed to the rear of the defendant's vehicle: T210.50 - T211.16.
In describing those events in closer detail, Mr Lopez stated that, after he had observed the defendants' vehicle pull out of the McDonalds driveway, it "might have" travelled "ten, 15 metres from when it pulled out of the driveway and it stopped into the traffic": T213.5. He stated that the defendants' vehicle had stopped behind other westbound traffic that had banked up at traffic lights that he had estimated to have "possibly" been 30 or 40 metres down the road: T213.13.
Mr Lopez stated that at the time he had seen the defendants' vehicle pull out from the McDonalds driveway, he had already been slowing down for the traffic ahead, so when that vehicle pulled out, and had then straightened up in front of him, and stopped, he had to apply his brakes as he was behind that vehicle: T213.31. He denied seeing the defendants' vehicle cut into the lane in front of him, and he denied that the road ahead of the defendants' vehicle had been clear of other traffic at that time: T213.24 - T213.38.
Mr Lopez denied braking suddenly, stating he was already slowing down to stop: T213.48. His evidence, simply stated, was that a vehicle had come out from his left and stopped, and he had stopped behind it: T214.30. In my assessment, that was an overly simplistic account of the events in question.

[8]

Mr Bugeja's version of events

It was plain that the first defendant, Mr Bugeja, did not have a good recollection of the events of the accident: T201.50. His account was significantly qualified by statements as to what he thought he "would have" done in the events of the accident: T186.7; T186.47; T200.36; T200.43; T200.46; T201.50; T204.1; T204.7; T204.23.
Significantly, Mr Bugeja's version of events, as given in his oral evidence, varied from the terms of a more contemporaneous statement of the events that he had given on 31 October 2010 to an insurance investigator who had been engaged by the defendants' insurer: Exhibit "L".
Mr Bugeja agreed, that in the prevailing conditions of rain (T185.46) he had driven his vehicle through the car park exit of McDonalds and pulled out into the second or middle lane of Victoria Road after gauging that he could do so "between traffic": T185.46 - T186.34. He said that when he pulled his vehicle out, he had looked to his right, and did not see any vehicles approaching from his right: T199.48. He later stated that whilst he could not say he did not see anything in the form of vehicles approaching from his right, he "would have given [himself] enough time to enter" Victoria Road: T200.16. In cross-examination, I consider that it was well demonstrated that he did not have a true memory of those events: T201.26. His account suggests it was a reconstruction.
Mr Bugeja agreed that if it had been raining at the time, his driver's side window would have been wound up, and this would have interfered with his ability to see to his right out of his side windows: T202.14 - T202.18.
Mr Bugeja claimed that in the events leading to the accident, after he had pulled out from the driveway and onto the roadway, and after he had started to travel downhill on Victoria Road, he heard a thud or a bang on his car, from behind: T187.30 - T187.44. On several occasions in his evidence, albeit consistent with his earlier statement, he was at pains to point out and emphasise that the impact to his vehicle was small or slight: T187.32; T187.44; T188.1; T191.24; T192.11. He gave an equivocal answer when it was suggested to him that he had no independent memory of the events: T200.48 - T201.2.

[10]

Credibility and reliability of testimony

I considered the plaintiff to be a careful witness who did her best to accurately recount her evidence concerning the events of the accident. I am satisfied that her evidence was given truthfully. Save for two qualifications, which I consider to be immaterial to an assessment of the reliability of her evidence, I considered that her evidence was reliable.
The first qualification of the plaintiff's evidence concerned her mis-description of Mr Lopez's vehicle to the police as being a Lancer rather than a Lantra. That mis-description was corrected contemporaneously, and I consider it to be an immaterial matter. The second qualification concerned the plaintiff's obviously mistaken view that in the lead-up to the accident, she believed she had been following Mr Lopez's vehicle downhill from the traffic lights at the crest of the hill at the intersection between Victoria Road and Lyons Road, when in fact Mr Lopez had entered Victoria Road from Lyons Road. Given the rainy conditions, I do not consider that erroneous view of events as recounted by the plaintiff, to have been a material matter that affected the reliability of her evidence in describing the events of the accident.
Although Mr Lopez did his best to recall the events, I considered him to be an unreliable witness. I gained the impression that he was vague in his descriptions when he gave his evidence. His description of the rainy conditions as "a bit of rain" was dismissive and off-hand. The inherently wide range within his estimate of "five, six, seven seconds" of his vehicle being stationary before the collisions did not have the semblance of reliable accuracy. His qualified estimate that the defendants' vehicle "might have" travelled "ten, 15 metres" before stopping, his evidence of the "possible" location of the traffic lights, all suggested he was providing an unreliable reconstructed account of the events, rather than recounting facts within his actual knowledge or recollection.
Consequent upon those matters, I considered that the testimony of Mr Lopez did not represent a reliable account of the events, or how the collisions had occurred.
Mr Bugeja said that just before the accident, he had thought it was clear for him to turn, and he was argumentative in cross-examination on that question: T207.36 - T208.8. I considered that Mr Bugeja had only a limited and an inaccurately reconstructed recollection of the events leading up to and involving the accident. Significantly, that recollection was, in a material part, at variance with his more detailed contemporaneous statement taken by an insurance investigator.
In particular, whereas in his evidence at the trial, he conveyed the impression that the accident had occurred some distance to the west of the McDonalds car park exit, in his earlier statement, he said the accident occurred directly outside that driveway. I considered that his earlier, and more contemporaneous version of the location of the accident, as set out in his statement comprising Exhibit "L", was more likely to be correct.
Mr Bugeja's answers to questions asked in cross-examination were at times argumentative. His evidence appeared in significant parts, to have been based on what he "would have" done, rather than being based on an actual recollection of the events. He had only recently refreshed his memory from his statement, and yet there was a significant variation between that evidence and his more contemporaneous statement. For those foregoing reasons, I considered Mr Bugeja to be a less reliable witness than the plaintiff.

[12]

Issue 1 - Negligence of the defendants

A consideration of whether or not the defendants were negligent, requires an identification of scope and content of the duty of care owed, and the identification of the risk of harm. The duty of care owed by the first defendant was to exercise reasonable care and skill in the operation of his vehicle, including the need to keep a proper lookout. That duty, and its scope, including the need to obey the requirements of the Australian Road Rules, does not need a detailed elaboration in a case of this kind: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13].
The plaintiff relies on the following particulars of negligence: 1. Failed to keep any or any proper lookout. 2. Failed to slow, stop or steer the vehicle so as to avoid the collision. 3. Crossing into the path of moving traffic in a dangerous fashion. 4. Crossing 2 lanes of traffic when it was unsafe to do so. 5. Placing the plaintiff in a position of peril that could have been avoided by the exercise of reasonable care. 6. Failed to apply the brakes safely. 7. Driving in a dangerous fashion in the circumstances. 8. Breach of reg 74 of the Road Rules 2008, as they then applied, which prohibited a driver entering onto a roadway without giving way to any vehicle travelling on the roadway: T12.21 - T12.23.
The cited Road Rule was in the following terms: 74 Giving way when entering a road from a road related area or adjacent land (1) A driver entering a road from a road related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to: (a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road related area or adjacent land), and (b) any pedestrian on the road, and (c) any vehicle or pedestrian on any road related area that the driver crosses to enter the road, and (d) for a driver entering the road from a road related area: (i) any pedestrian on the road related area, and (ii) any other vehicle ahead of the driver's vehicle or approaching from the left or right.
The question of whether or not the defendants were negligent requires an evaluation according to the requirements of s 5B of the CL Act, which provides as follows: 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.
In making a determination according to the requirements of s 5B of the CL Act, the requirements of s 5C of that Act must also be considered. Section 5C of the CL Act provides as follows: 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.5B General principles
In the paragraphs that follow, the three pre-conditions for a negligence finding, as required by s 5B(1), are addressed in the sequence in which they appear in that legislation.

[18]

Causation and scope of liability

Causation of damage must be determined according to s 5D of the CL Act, which provides as follows: 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.
In my assessment, the plaintiff's injuries would not have occurred but for the defendant's vehicle entering onto the roadway as it did: s 5D(1)(a) of the CL Act. In the circumstances of a compulsory third party insurance scheme which is in place to provide compensation for injury to persons such as the plaintiff who have sustained injury due to fault on the part of the driver of a registered motor vehicle, it is plainly appropriate that the scope of the defendants' liability to the plaintiff in damages extends to cover the circumstances of the subject accident: s 5D(1)(b) and s 5D(4) of the CL Act. There are no exceptional circumstances that would justify excluding the defendants from liability to the plaintiff: s 5D(2) of the CL Act.

[19]

Issue 2 - Contributory negligence of the plaintiff

The defendants pleaded a defence relying on the following particulars of contributory negligence: 1. Failure to keep a proper lookout. 2. Proceeding at an excessive speed in the circumstances. 3. Failure to keep at a reasonable distance behind another vehicle.
The determination of the issue of alleged contributory negligence must proceed according to the requirements of s 5B and s 5R of the CL Act: Solomons v Pallier [2015] NSWCA 266, at [48]. Section 5R of that Act provides as follows: 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.
The question of whether or not contributory negligence has been established is to be determined objectively from the surrounding circumstances, including what the plaintiff either knew or ought to have known: Joslyn v Berryman [2003] HCA 34, (2003) 214 CLR 552, at [16].
The evaluation of whether the plaintiff was contributorily negligent must proceed according to a prospective analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [127]. That exercise is determined, in conformity with the requirements of s 5B of the CL Act: Collins v Clarence Valley Council [2015] NSWCA 263, at [188] - [191].
In the present case, it was plain that the plaintiff was travelling too close to Mr Lopez's vehicle having regard to the wet, and therefore the slippery road conditions. Motorists in the plaintiff's situation are expected to exercise reasonable care and skill for their own safety, and maintain a safe and sufficient distance behind the vehicle in front to enable them, when necessary, to bring their vehicle to a halt without colliding with the rear of that vehicle when a foreseeable source of danger appears. That expectation extends to giving reasonable attention to what is happening on and near the roadway: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228, at [11].
It is well understood that motorists are required to maintain vigilance against the serious and real risk or possibility that other motorists might at times drive inattentively, or might perhaps create a situation of danger in traffic conditions: Wheare v Clarke [1937] HCA 7, (1937) 56 CLR 715, at p 723.
In this case, the duty of the plaintiff was to take reasonable care for her own safety, and that duty extended to a need for her to anticipate and to react appropriately to changed circumstances that are foreseeable: s 5B(1) of the CL Act. However, that duty does not extend to a requirement to all circumstances that might arise, the obligation is to take reasonable care in the circumstances: Marien v Gardiner [2013] NSWCA 396, at [35] - [37].
I find that the plaintiff did not proceed according to that expected standard. She saw the first defendant's vehicle enter onto the roadway ahead. She did not keep a proper lookout and she did not slow down earlier, nor did she maintain a safe distance behind Mr Lopez's vehicle. As a result, it became necessary for her to apply her brakes heavily, in an emergency situation. This caused the tyres on her vehicle to lose traction on the road, and this in turn caused her vehicle to slide into collision with the rear of Mr Lopez's vehicle, which in turn collided with the defendant's vehicle.
There was no significant difficulty or burden on the plaintiff to take the precaution of driving at a greater and safer distance behind the vehicle in front, at a safe speed that was appropriate to the wet road conditions: s 5B(2) of the CL Act: But for that failure, it was unlikely that the plaintiff's vehicle would have struck Mr Lopez's vehicle: s 5D(1)(a) of the CL Act:
I therefore find that the plaintiff was contributorily negligent as claimed by the defendants. As a result, it becomes necessary to resolve the question of an apportionment between the respective culpabilities of the plaintiff and of Mr Bugeja. Any apportionment on account of contributory negligence must be on the basis of what is considered to be just and equitable in the circumstances: s 5S of the CL Act. This requires that the respective culpabilities be considered and weighed: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, at p 494.
In my assessment, the causative potency of the omissions of Mr Bugeja by far exceeded the plaintiff's misjudgements. The plaintiff had little opportunity to anticipate the entry of the defendants' vehicle onto the roadway, and once Mr Bugeja commenced to drive onto the roadway, she had little option but to apply her brakes heavily. This became necessary because she had not maintained a safe road distance between her vehicle and Mr Lopez's vehicle, having regard to the wet and raining conditions, and she needed to try and stop as a matter of urgency.
In those circumstances, I consider that the defendants' contribution to the accident was to a much greater extent than that contributed by the plaintiff. I consider a just and equitable apportionment between the parties requires an apportionment of 85 per cent of the blame for the accident to the defendants, and 15 per cent of the blame to the plaintiff.
I consider that view to be appropriate because the plaintiff's negligence arose from an error of judgment which resulted in her driving too close to the vehicle in front having regard to the wet downhill section of the roadway upon which she was driving. In contrast, Mr Bugeja's negligence was as a result of a breach of a fundamental requirement of the Road Rules which required that he refrain from entering the road until it was safe for him to do so. Instead, he drove out quickly, straightened up his vehicle and stopped, thereby creating a serious situation of danger for other road users.

Jarrett v Bugeja & Anor

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