Jarrett v Bugeja & Anor

Factual background

1. At about 8.10am on Tuesday, 30 March 2010, the plaintiff was driving her motor vehicle in a generally west and downhill direction along Victoria Road at Drummoyne, in conditions which she described as heavy rain.
2. In the course of that journey, due to changed traffic conditions ahead, the plaintiff found that she had to apply her brakes heavily with the aim of intending to avoid a collision with the vehicle in front of her own vehicle. In doing so, her vehicle slid on the wet road surface, and the front of her vehicle collided with the rear of the vehicle in front. There was a dispute as to the sequence of events involved in that collision, and with respect to another collision that took place between that vehicle with the rear of the second defendant's vehicle, which was in front of that vehicle, and which was at the time being driven by the first defendant.
3. The antecedent events to those collisions were that Mr Bugeja had driven out of an exit driveway of a McDonalds parking lot on the southern side of Victoria Road, and had then turned left and straightened up his vehicle to face generally west in Victoria Road, in the second or middle lane of three lanes of westbound traffic. There was a dispute as to whether the defendants' vehicle was stationary at the time of those collisions.
4. The plaintiff claims the defendants' vehicle had simply darted out from the car park, and into the middle lane of westbound traffic, and had then braked, causing her to heavily apply her brakes, which in turn led to her vehicle sliding or aquaplaning on the wet roadway, and into collision with the vehicle in front of her vehicle, which in turn then collided with the rear of the defendant's vehicle.

Issues

1. The defendants denied negligence, and in the alternative, asserted that the plaintiff was contributorily negligent, a claim which the plaintiff disputed.
2. The plaintiff's damages claim was complicated by the fact that she had a history of prior accidents and injury, and because she also had some disabilities that followed significant surgery she had undergone since the subject accident, in relation to an inter-current health issue.
3. The plaintiff's damages claim was extensive, and required the determination of a number of sub-issues. At the trial, due to the effects of her injuries, she wore a cervical collar for neck support. She needed a wheelchair for mobility. She wore dark glasses due to light sensitivity, and she required extensive assistance because of the manner in which her many disabilities had affected her.
4. During the course of the trial, the parties reached a sensible agreement as to the assessment of quantum in the event that the plaintiff's claim was successful. That agreement was in the sum of $725,000 plus costs. Once that agreement was reached, the issues for trial became narrowed, and the hearing then continued on the remaining issues of the alleged negligence of the defendants, and the alleged contributory negligence of the plaintiff.
5. In their submissions on the liability issues, the parties cited a number of authorities dealing with different factual circumstances. In cases such as this, where the outcome of the liability issues is to be determined by the resolution of competing factual versions, those authorities, whilst providing useful guidance, are not prescriptive: Braund v Henning [1988] HCA 36, at [12].

Differing versions of the events

1. Before addressing the matter of the reliability and the credibility of the evidence of the respective witnesses, and then addressing the remaining issues calling for decision, it is necessary to review the differing factual versions of the events, as set out in the paragraphs that follow.

Plaintiff's version of events

1. 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.
2. 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.
3. 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.
4. 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]
5. 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.

Mr Lopez's version of events

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Mr Bugeja's version of events

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.

Mr Bugeja's statement dated 31 October 2010: recollections as stated in Exhibit "L"

1. Mr Bugeja's signed and witnessed statement, dated 31 October 2010, comprised 54 paragraphs: Exhibit "L".
2. In that statement he noted it had been raining, but not heavily, and the road was wet at the time of the accident: par 16 - par 17. The statement records that the accident occurred "directly outside" the McDonalds driveway: par 18. It went on to state that at the time his vehicle had entered Victoria Road from the McDonalds driveway, there were no parked vehicles along Victoria Road: par 24. It also stated that he had "maintained sight to the right", turned left, travelled between 5 - 10 metres and then heard the thud of a collision from behind with Mr Lopez's vehicle: par 24 - par 29. It further stated that as he entered the roadway to merge left, he had scanned to the right "for a few seconds", as well as looking into his right mirror to check that nobody was behind him: par 45. It also stated that at the time of the collision, there was nothing blocking his vision either to the left or the right sides of his vehicle: par 47.
3. Mr Bugeja's statement suggested that the impact from Mr Lopez's vehicle was "quite light": par 30. It also stated that to his observation, Mr Lopez's vehicle had a "very slight indent just below the registration plate and a slight scratch on the lower part of the front bonnet": par 34. The statement described more extensive damage to the front of the plaintiff's vehicle: par 35. In his statement, Mr Bugeja also maintained that the plaintiff was at fault for the accident: par 52.

Credibility and reliability of testimony

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Findings on the factual sequence of relevant events

1. I am satisfied that the plaintiff's version of the events was more reliable than those of Mr Lopez and the versions put forward by Mr Bugeja.
2. I find that at the time of the accident, whilst the plaintiff was driving downhill in a westerly direction along Victoria Road, at between about 35 to 45kph, in conditions of heavy rain, where the traffic ahead of her was slowing down in anticipation of the traffic lights ahead. I find that in those circumstances, Mr Bugeja misjudged the distances between the vehicles in the middle lane of Victoria Road, and he misjudged the speed of those vehicles, when he suddenly drove across the kerbside lane from the McDonalds driveway adjacent to Victoria Road, and into the middle of the three westbound lanes. That conclusion is supported by the relatively short distance over which he travelled before he braked.
3. At the time he turned from the McDonalds driveway, whilst Mr Bugeja may have looked to his right as he stated he would have, I find that he misjudged the traffic conditions, probably due to the effects of rain obscuring his vision to the right through his wound-up side window, and in those events, he failed to see the plaintiff's approach.
4. In those circumstances, the plaintiff was required to apply her brakes which she did, heavily, due to the lack of a reasonable prior indication of Mr Bugeja's intended manoeuvre. As a result, the plaintiff's vehicle lost traction on the road surface, and slid or aquaplaned to the rear of Mr Lopez's vehicle, which had also braked suddenly in response to Mr Bugeja's unexpected manoeuvre of turning his vehicle left and into the middle lane of westbound traffic on Victoria Road. As a result, a three car pile-up occurred, first involving Mr Lopez's vehicle colliding with the vehicle driven by Mr Bugeja, followed by the plaintiff's vehicle striking Mr Lopez's vehicle.

Issue 1 - Negligence of the defendants

1. 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].
2. 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.
3. 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.
4. 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.
5. 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
6. 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.

The requirements of s 5B(1)(a) of the CL Act

1. The first pre-condition of s 5B of the CL Act addresses the need to establish foreseeability of the risk of harm. In this case, there can be no question that when a vehicle is driven on the roadway from an adjacent off-road car park, across a kerbside lane, and to then merge into a line of traffic, on a wet road in raining conditions, it is reasonably foreseeable that drivers of other vehicles in the immediate vicinity, especially in the merged lane, might be required to brake including suddenly, or due to possible inadvertence, they may misread the cues, and react too late, thereby resulting in a collision, causing injury to those involved: s 5B(1)(a) of the CL Act.
2. It is plain that when Mr Bugeja was in his stationary vehicle at the exit to the car park, intending to turn left onto Victoria Road, he ought to have known that it was foreseeable that westbound vehicles could appear and approach from his right, and that on a wet downhill stretch of the roadway, it would be difficult for such vehicles to stop quickly, were he to attempt to enter the middle westbound lane of that roadway. In those circumstances, he was obliged to obey Road Rule 74, and it is plain that he did not do so.

The requirements of s 5B(1)(b) of the CL Act

1. The second pre-condition of s 5B of the CL Act requires an identification of the significance of the risk of harm in the circumstances. On the facts as found in this case, Mr Bugeja's actions in driving onto the roadway, created a risk of collision, and a risk of injury to the plaintiff. Collisions involving multiple vehicles are unfortunately a relatively commonplace occurrence on the roads. In this instance, the risk of such an occurrence was "not insignificant", especially on a wet downhill portion of the roadway: s 5B(1)(b) of the CL Act.

The requirements of s 5B(1)(c) of the CL Act

1. The third pre-condition of s 5B of the CL Act is that in the circumstances, a reasonable person in the position of Mr Bugeja would have taken the contended precaution of waiting before entering the roadway, and the second westbound lane on that roadway, until it was safe to do so. In my view, consistent with the need to properly discharge the duty of care Mr Bugeja owed to other road users, including the plaintiff, the contended precautions of keeping a proper lookout, remaining stationary and refraining from entering the middle lane of traffic until it was safe to do so, and observing the Road Rules, were all actions that would ordinarily be reasonably expected of a person in the position of Mr Bugeja before any attempt was made to enter the westbound traffic lanes of Victoria Road.

The requirements of s 5B(2) and s 5C of the CL Act

1. I am satisfied that the actions of the Mr Bugeja, in not taking the precaution of keeping a proper lookout and waiting for the westbound traffic on his right to clear, before he attempted to move his vehicle onto the roadway, significantly increased the probability of harm to the plaintiff from injury from a motor vehicle collision: s 5B(2)(a) of the CL Act.
2. It is not a matter for dispute that a motor vehicle collision on a wet road was likely to cause serious harm in the form of injury to other road users: s 5B(2)(b) of the CL Act. The contended burden on Mr Bugeja, in maintaining a proper lookout, and waiting for the traffic approaching from the right to clear, was not at all significantly difficult to achieve: s 5B(2)(c) of the CL Act. The provisions of s 5B(2)(d) concerning social utility have no relevance to a consideration of the circumstances under present review.
3. The burden on drivers to keep a proper lookout, and to wait until traffic clears before entering onto a roadway from an adjacent driveway, is a commonplace precaution that arises in the everyday use of a motor vehicle: s 5C(a) of the CL Act.

Conclusion on negligence

1. For the above reasons, I consider the defendants were negligent as alleged. Mr Bugeja failed to keep a proper lookout to see the plaintiff's approach, failed to desist from driving his vehicle onto the roadway until it was safe to do so, and failed to have regard to the wet road conditions and the closeness of the proximity of westbound vehicles, with the result that the plaintiff, and Mr Lopez before her, had insufficient time to effectively brake and avoid the successive collisions which then ensued.
2. In order for damages to be awarded for negligence, the plaintiff must establish causation of the harm suffered.

Causation and scope of liability

1. 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.
2. 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.

Issue 2 - Contributory negligence of the plaintiff

1. 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.
2. 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.
3. 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].
4. 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].
5. 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].
6. 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.
7. 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].
8. 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.
9. 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:
10. 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.
11. 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.
12. 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.
13. 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.

Disposition

1. The plaintiff's damages have been agreed in the assessed amount of $725,000. The defendants have been found to have been negligent as claimed by the plaintiff. The plaintiff is therefore entitled to a verdict in her favour in the assessed amount. The plaintiff has been found to have been contributorily negligent. The respective responsibilities or culpabilities of the parties have been apportioned as 85 per cent to the defendant, and 15 per cent to the plaintiff. After applying those findings, the plaintiff is entitled to a judgment in her favour in the amount of $616,250.

Costs

1. As the plaintiff has succeeded in the proceedings I see no basis for a cost order other than that the defendants pay the plaintiff's costs of the proceedings on the ordinary basis, unless a party is able to show an entitlement to some other costs order, for which there should be liberty to apply, if required.

Orders

1. I make the following orders: 1. Verdict and judgment for the plaintiff in the sum $616,250; 2. The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2016