Koropachinsky v Wang [2018] NSWDC 318 | Case summary

Koropachinsky v Wang [2018] NSWDC 318 | Case summary | Zoe

The facts in dispute

The factual evidence is largely agreed: 1. The first defendant was an employee of the second defendant, a company of which he was both a director and shareholder (Exhibit A; T 21), and was sued in his capacity as the driver and agent of the second defendant. Those facts are not in dispute. 2. The evidence was in limited compass. Both the plaintiff and first defendant gave evidence, but cross-examination of the plaintiff was of a brief nature. 3. There was unanimity on the essential issues in the expert evidence given by Mr Grant Johnston of Unisearch (for the defendant) and Dr George Rechnitzer, which was given after a conclave report was prepared. The principal issue upon which they did not agree was the distance at which the plaintiff first saw the defendants' vehicle; however, they did agree that this made little or no difference to their findings.
The degree of unanimity on this one outstanding issue was helpfully identified by Mr Glascott, in eliciting the following expert evidence concession at T 85: "GLASCOTT: I understand. Then the final question was, at 24, "Making similar assumptions, could the plaintiff have a clear vision identifying Mr Wang's attempt to make turns?" The answer is: "It would be clear at this stage that the vehicle was pulling out and once it entered the southbound lane it would become apparent whether the Nissan is seemingly performing a U‑turn or proceeding in a southerly direction along Victoria Road. It would not be apparent that the Nissan was doing a U‑turn and not moving ahead in the southbound lane until it had moved into the southbound lane and was discernibly proceeding to cross this lane. This is likely to start to occur at about 3 to 5 metres from the point of impact, depending on the radius of the turn. At 3 metres from the point of impact the time interval to impact would be about 1.4 seconds at 8 kilometres per hour to about 10.1 second at 12 kilometres per hour. In this time the Aston Martin driver would no longer be 35 metres away, that is as"‑‑ HER HONOUR: That much closer? GLASCOTT: Much closer - "at about 12 metres at 30 kilometres per hour to 16 metres at 40 kilometres per hour for example." So we can assume that the Aston Martin driver would have to discern not only that the Nissan had pulled out in front of her, but was also intending to make a U‑turn or cross the double lines, in effect for some kind of reaction, to make a reaction. WITNESS JOHNSTON: For a different response. You would have to virtually have an emergency response if they're doing a U‑turn or stop quickly. GLASCOTT: Yes. WITNESS JOHNSTON: If they're pulling out into traffic you may need to slow down to accommodate them a little bit. It would be a different response. WITNESS RECHNITZER: Yeah, and we answer that in question 10 actually. GLASCOTT: Yes, which we've gone through. In other words, if the Nissan had simply pulled out and continued in the southbound lane, it's likely the accident wouldn't have occurred. WITNESS RECHNITZER: Yes, yes. WITNESS JOHNSTON: Everything else being equal." (T 85-86)
Finally, I note that, at the close of the evidence, in response to the submissions of the plaintiff, Mr Chi (the solicitor appearing for the defendants) admitted liability on behalf of both defendants.

[4]

The circumstances of the accident

The first defendant admitted in his evidence that he was attempting to perform a U-turn in order to park in the driveway of 140 Victoria Road, where he was delivering material. However, it was the driveway to number 142 (see the report of Dr Rechnitzer, figure 15 on p 69), not 140, which was opposite. This meant he not only had to cross the double lines but, when he arrived at the other side of the road, either park in the driveway of 142 or reverse back into the driveway at 140 Victoria Road.
All of these manoeuvres were not merely dangerous but contrary to the Road Rules 2014 (NSW) ("the Rules"). Rule 132(2A) of the Rules provides: "(2A) A driver on a road with a single continuous dividing line, a single continuous dividing line to the left of a broken dividing line or 2 parallel continuous dividing lines must not drive across the dividing lines to perform a U-turn. Maximum penalty: 20 penalty units."
The Dictionary to the Rules defines, "dividing line" to mean "a road marking formed by a line, or 2 parallel lines, whether broken or continuous, designed to indicate the parts of the road to be used by vehicles travelling in opposite directions".
I also note r 198(2): "(2) A driver must not stop on or across a driveway or other way of access for vehicles travelling to or from adjacent land unless: (a) the driver: (i) is dropping off, or picking up, passengers, and (ii) does not leave the vehicle unattended, and (iii) completes the dropping off, or picking up, of the passengers, and drives on, as soon as possible and, in any case, within 2 minutes after stopping, or (b) the driver stops in a parking bay and the driver is permitted to stop in the parking bay under these Rules. Maximum penalty: 20 penalty units."
By admitting that he intended to park in the driveway of number 140, the first defendant was effectively admitting to performing a U-turn within the Dictionary definition in circumstances where he was crossing double lines. He was not entitled to park in the driveway of number 142, as he would not have had the permission required by r 198(2)(a) or (b) (and I note there was no evidence that he had such permission). As is set out in more detail below, I am satisfied that what he intended to do was to carry out a U-turn from his parked position across the road and then reverse back from 142 to 140 Victoria Road on the roadway for the purpose of parking in the driveway where he did have permission to park.
The first defendant undertook this dangerous manoeuvre in circumstances where he was required to have regard to approaching traffic. Rule 37 provides: "37 Beginning a U-turn A driver must not begin a U-turn unless: (a) the driver has a clear view of any approaching traffic, and (b) the driver can safely make the U-turn without unreasonably obstructing the free movement of traffic. Maximum penalty: 20 penalty units."
Rule 38 provides: "38 Giving way when making a U-turn A driver making a U-turn must give way to all vehicles and pedestrians. Maximum penalty: 20 penalty units."
These rules of course apply where a driver may legally attempt a U-turn, as opposed to doing so where there are double lines across Victoria Road (and I also note the lack of permission to park in the driveway of number 142). It is an indication of the degree of danger of the plaintiff's manoeuvre.
Counsel for the plaintiff, in his helpful written submissions, summarises the negligent acts of the first defendant as follows: 1. On the plaintiff's version, the first defendant drove out in front of her (T14.15) and it happened very quickly despite the plaintiff driving at 35km/h as she was driving out of the sharp left hand bend (T14.35; T14.45: "Q. The impression you had, it happened very, very quickly? A. Very quickly, it was just seconds. Like, second"). This was reinforced in cross examination of the plaintiff: T18.20:"Q. When you say that you applied brake immediately when you saw the first defendant's car coming out, when you say immediately, can you say it's a second, two second, or? A. A second, straight away". 2. The plaintiff swerved slightly to the right but could not avoid a collision even though she almost brought her car to a stop (T16.15: Q. Was your vehicle slightly across the double lines? A. Slightly across, because I was trying to - it was one second, but I think I was trying to - because I saw him very quickly, so I think I just tried to get away from the accident, and that's why I - it's a little bit over the double lines - on the line"; 3. The first defendant clearly did not see or check for the plaintiff's vehicle when he should have; 4. Alternatively, if the first defendant's evidence is accepted (that he checked and could not see the plaintiff's vehicle), it is clear he could only have seen the southbound lane behind for about 25 metres (Joint Report, answer to Q.9 - Dr Rechnitzer) , given the parked car behind his car, and, given that limited sight distance, there was insufficient distance to safely undertake the U-turn manoeuvre (apart from the fact it was illegal at that location); 5. The plaintiff admitted he was at fault (T17.15: "Q. Did the driver say anything to you when he gave you his licence? A. No, he just gave me his licence, but beforehand because I was so upset, and he says "Yes, yes, I know it's my fault". Because I - "; 6. The first defendant was in breach of Rules 37, 38 and Rule 132 (2A) the road rules. The first defendant admitted he knew he should not have attempted a U turn over double lines (T25.25 - .50), and tried to explain he intended to park in the driveway of No. 140 (T25.45) however a U turn was necessary to do this. A driver (in the plaintiff's position) coming around a blind corner would not reasonably expect an illegal manoeuvre of that kind; 7. If the first defendant's evidence is accepted (that he had a clear view behind him for 25 metres), that does not exculpate him from negligence, as he underestimated the time it would take for a vehicle coming around the corner to see him and stop if it was travelling at 50km/h (or less). He took a chance that a car would not come around the corner which was dangerous and negligent. The double lines on the road were obviously there for a reason, to prevent overtaking and U-turns where a driver's line of sight was restricted in both directions; 8. The court would not accept the first defendant could see for 40 to 50 metres behind him or 60 to 100 metres as originally claimed in his affidavit. This is an attempt to allege he had time to carry out an illegal manoeuvre because the road was clear. There were usually cars parked in the location (T13.45: Q. Before the accident, did you notice anything about parked cars? A. Like, when, when I drive, I look around, but nothing that was not - drew my attention, just parked cars"). The plaintiff said it was a blind spot (T13.40; T14.20: "…So, as soon as I come out of the curvy road, or of the blind spot, the car just went in front of me and, I pressed the brakes as soon as I saw it and our car collided"); 9. In cross examination the plaintiff frankly said there were parked cars on the corner but she could not say how many (Q. Just to confirm, you're saying that you did not see any parked cars when you turned left as you were going through the bend before the accident? A. I - I saw parked cars, but as I say when I drive, like you look around, but it's just parked cars. Q. Did you notice a lot, one or none? A. I don't know, I don't - I just"); 10. It does not make sense to the defendants' case to establish there may have been 40 to 100 metres of sight distance. If the first defendant's case is that he pulled out into the road when the road was clear for those distances, that would mean the plaintiff was driving at between 70 km/h (to travel 40 metres over 2 seconds) to 117km/h (to travel 65 metres in 2 seconds). Those speeds are not probable for the location or given the plaintiff's habits in driving through the corners (see discussion of this point under the contributory negligence speeding allegation).

[5]

Causation

Section 5D(1) Civil Liability Act 2002 (NSW) provides: "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."
The determination of whether the first defendant's negligence was a necessary condition of the accident is easily met in the present circumstances. The first defendant's failure to observe the plaintiff's vehicle at the time he attempted the illegal U-turn manoeuvre, with what the experts agreed to be limited sight distance of no more than 25 to 30 metres, was the direct cause of the accident, as the experts made clear.
The joint expert report sets out at Question 9: "9. Assuming there was a car parked behind the Nissan in the position shown in figure 17, for what distance could the driver of the Nissan see any traffic behind him in the southbound lane from position A in the driver's side mirror or looking over his right shoulder? (and give reasons) GJ measured approximately to a position from approximately 30m back from the mirror of the parked Nissan. It is agreed that this is a visual estimate based on a number of assumptions and there will always be some variation no matter how precisely this analysis is performed. GR 25m. The Nissan Driver's view is partly obstructed by his own vehicle's right side and rear and also the parked vehicle, and the sharp curve to the right. Also the Aston Martin has a low height of 1.3m, which is lower than the typical sedan, SUVs, 4WDs and utes, and thus may be obscured by parked vehicles."
All the evidence points to the plaintiff taking the correct course of action to allow for the first defendant suddenly moving into the traffic, in circumstances where I am satisfied that he either did not look where he was going at all or disregarded the plaintiff's oncoming vehicle.

[8]

Failure to keep a proper lookout whilst driving

The plaintiff only had a maximum of 25 metres from the apex of the bend at which to notice the first defendant's vehicle moving out.
Even if I had accepted (which I do not) that the first defendant had a view of the road beyond the apex of the curve because of his ability to "see through" (T 28, 43, 44, 45 and 46) the parked vehicles and the gaps and/or the post, I am satisfied that his vehicle was not apparent to the plaintiff at the greater distance he sought to infer, and that the plaintiff could not reasonably have noticed the first defendant's vehicle commenced any manoeuvre from beyond those distances. In particular, the plaintiff could not have known that the first defendant was going to perform a U-turn across the double lines.
The relevant distances set out in the joint expert report are: 1. From a distance of 35 metres from the first defendant's vehicle (depicted in figure 14) - the first defendant's vehicle "would probably be visible… unless the car behind was significantly larger" and "if the Nissan was in motion and pulling out at that time it would be reasonably apparent as it would be separating from any occlusion by the vehicle parked behind it". However, even if the movement of the Nissan was noticeable, "it would not be apparent that the Nissan was doing a U turn and not moving ahead in the southbound lane until it …was discernibly proceeding to cross this lane…In this time the Aston Martin driver would be no longer be 35m away but much closer at about 12m at 30km/h to 16m at 40km/h (for example)" (p.12); 2. From a distance of 45 metres from the first defendant's vehicle (depicted in figure 13) - "if the Nissan was in motion at this stage that may have been discernible to the driver of the Aston martin if they were looking along the inside line towards the position of the Nissan. However, it could not be apparent to the Aston Martin driver that such movement would be a threat in terms of the vehicle intending to do a U-turn" (pp.11,12); 3. From a distance of 60 metres from the first defendant's vehicle (depicted in figure 12) - "the parked car which is present was probably in a position to mask any movement by the defendant's vehicle from this position. That is, the plaintiff would not have a clear vision identifying Mr Wang's attempt to make a turn" (p.11).
The plaintiff makes the additional point that while the experts assumed there was only one car parked behind the defendant's vehicle (in the position of car 2 in figure 12 of Dr Rechnitzer's report), it is more likely than not that there were other cars parked on the bend in which case the plaintiff's sight of the vehicle pulling out would have been even more obscured. In addition, all she would have seen would have been the first defendant moving the second defendant's vehicle out of the parked position; there was no forewarning of the U-turn being performed, as both experts agreed, in circumstances where the accident would most probably not have happened if the first defendant had not been performing a U-turn.
This particular is not made out.

[11]

The liability of the first and second defendant

There is no dispute that the second defendant is vicariously liable for the liability of the first defendant, the driver of its motor vehicle with its authority and for its purposes and as its agent. The first defendant's argument is that he should not be liable because any liability he has to the plaintiff is subsumed by the liability of his employer or principal.
The principles of joint and severable liability where an employee's acts occur in the course of his duties are explained by Gleeson CJ and Callinan J in Baxter v Obacelo (2001) 205 CLR 635 at [18]: "Joint tortfeasors are responsible for the same wrongful act leading to single damage. Such joint responsibility may arise from vicarious responsibility of one for another, or from the non-performance of a joint duty, or from concerted action. Several concurrent tortfeasors are independent tortfeasors whose separate acts combine to produce damage. In their case, "concurrence is exclusively in the realm of causation". In Thompson v Australian Capital Television Pty Ltd, Brennan CJ, Dawson and Toohey JJ said: The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The "Koursk", for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. [footnotes omitted]"
It is not in dispute that the first defendant was the sole shareholder and a director of the second defendant company; the relevant company records were tendered by the plaintiff. There is no cross-claim between the defendants, both of whom were represented by Mr Chi. The nature of the claim is set out in paragraph 11 of the first defendant's defence, which provides: "11. Further in answer to the whole of the Plaintiff's claim as it concerns the First Defendant, the First Defendant denies that he is liable in that he was the agent of the Second Defendant owning the car at the time of the accident for the purposes of the Second Defendant and with its consent."
The first defendant has also admitted driving as an agent for the second defendant (paragraph 2 of the defence).
The legal basis upon which he was doing so was, however, pleaded as agency, as the pleading in paragraph 11 confirms. However, submissions concerning the liability of the first defendant (or lack thereof) were put on the basis of the first defendant being the second defendant's employee (although Mr Chi interchangeably referred to principles of the law of agency). The basis upon which the first defendant claims he is the second defendant's employee is not demonstrated by any documentary evidence.
I shall nevertheless deal with vicarious liability both for agents and employees, although formally noting that there is no evidence before me to satisfy me that the first defendant is in fact an employee.

[12]

The first defendant as agent of the owner

The liability of the owner of a vehicle for a negligent driver is determined by the principles in Soblusky v Egan (1960) 103 CLR 215 and Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 (see Scott v Davis [2000] HCA 52; 204 CLR 333 at [12], [13], [15] to [18] per Gleeson CJ ; at [100] per McHugh J; at [256] per Gummow J; at [310] per Hayne J; and at [356] per Callinan J).
In Scott v Davis, Gummow J stated at [256]-[257]: "[256] In this Court, the appellants did not seek leave to re-open Soblusky. For that reason, it must be taken to stand as authority for the propositions in the paragraph from the joint judgment set out in section A of these reasons. Soblusky may well continue to have a significant field of operation in respect of motor vehicle property claims. Nothing said in these reasons should be taken to deny that proposition. However, like Hayne J and Callinan J, I would not extend the operation of Soblusky beyond its application to the vicarious liability of the owner of a motor vehicle. [257] I accept (with a qualification) the position stated by Brennan J in the following passage from Kondis v State Transport Authority."
The liability of a driver in a motor vehicle accident, whether he is the employee of the person who owned the vehicle or not, forms part of a statutory scheme of compulsory insurance designed to ensure that accidents are compensable. The liability for tortious acts of an agent occurring within the scope of the agency where the agent is acting in a representative capacity even where that agent is not an employee is explained by Gleeson CJ in Scott v Davis at [19], where his Honour referred to Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41.
Although Mr Chi did not set out his argument in such terms, his submission appears to be to the effect that legislation such as the s 3(1) Employees Liability Act 1991 (NSW) precludes any person suing the driver of the vehicle where the owner of the vehicle is the driver's employer and also sued, in that the driver cannot be sued by the employer (and, by inference, anyone else).
However, the liability of an employer for the acts of his employee and the requirement of an employer to hold the relevant insurance to indemnify his employees in the event of a motor vehicle accident (Raper by her tutor Raper v Bowden (2016) 76 MVR 369 at [23]) does not lead to the result that the employee/driver cannot be sued; it means that the employer must indemnify the loss resulting from the employee/driver's actions. Nor does it mean that, although the first defendant as well as the second defendant has admitted liability, judgment should only be entered for the second defendant.
Judgment has accordingly been entered against both defendants.
I have granted liberty to apply in relation to costs and, if interest is sought in relation to the agreed quantum of damages, to interest as well.

Koropachinsky v Wang

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Judgment (14 paragraphs)

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