Nettleton v Rondeau

Judgment 1HIS HONOUR: Nature of proceedings Pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2002, on 29 August 2013 Hall J ordered that the question of liability be separately determined from the question of damages in this matter. His Honour also ordered that the costs of that application were to be costs in the cause (Nettleton v Rondeau [2013] NSWSC 1321). 2The plaintiff alleges that at approximately 1.30pm on 14 January 2012 he was riding a bicycle east in Lauderdale Avenue, Fairlight when a motor vehicle driven by the defendant emerged from a driveway from behind parked cars across the eastbound traffic lane. A collision between the plaintiff and the motor vehicle resulted, rendering the plaintiff a complete T10 paraplegic. 3The plaintiff alleges that the accident was due to the fault of the defendant in failing to drive onto the eastbound lane in such a way as to maximise her view of the road and minimise the extent of the protrusion of her motor vehicle into that lane. There were numerous other particulars of negligence alleged, but that was the one relied upon at trial. 4In the alternative, the plaintiff alleged that the collision was a "blameless motor accident", pursuant to s7C of the Motor Accidents Compensation Act 1999 (the Act). 5The defendant denied any negligence on her part and asserted that if she were negligent, the plaintiff contributed to the occurrence of the collision by failing to keep a proper lookout, failing to avoid her vehicle and using Lauderdale Avenue rather than a designated bicycle path. 6The issues in the proceedings were: (1) Was the defendant negligent? (2) If not, was the collision a "blameless motor accident"? (3) Should contributory negligence be found against the plaintiff and if so, to what extent? Factual background 7Except where otherwise indicated, I find the facts in this matter to be as follows. 8The accident occurred towards the western end of Lauderdale Avenue, almost opposite the intersection of King Avenue with Lauderdale Avenue, and just to the east of the intersection of Willyama Avenue which joins Lauderdale Avenue from the north. The driveway from which the defendant emerged belonged to number [] Lauderdale Avenue comprised a block of units. The driveway which was in use at the time of the accident, led from a garage which provided parking spaces for the occupants of those units. The garage had a wide front but was not a double front. To the east of the driveway was a bus stop, where parking was prohibited. To the west up to Willyama Avenue, there was room for four cars to park up to a sign which said "no parking" but which was directed to the west. At the time of the accident there were either three or four cars parked between the western edge of the driveway and the "no parking" sign to the west. There was no sign prohibiting parking in that location. 17In the joint report of the experts, the following is set out in relation to visibility for a person driving a motor vehicle using the driveway from number [] Lauderdale Avenue. 3.2 At what point would the Plaintiff have been able to detect the Defendant's vehicle? The experts agreed that the first practical point at which the Plaintiff would have been able to detect the Defendant's vehicle would be when the leading edge of the Subaru passed the line of parked cars. 3.3 At what point would the Defendant have been able to detect the Plaintiff's vehicle? The experts agreed that the first practical point at which the Defendant would have been able to detect the Plaintiff's bicycle would be as she reached (or came within approximately 10 cm of) the line of parked cars. 3.4 Considering the circumstances and objective evidence of the accident, who, either the Plaintiff or Defendant, would have been in the best position to first detect the movement of other vehicles? The experts agree that it would be the cyclist." 18The plaintiff was aged 49 at the time and had been riding bicycles for about two years. He rode between 25 and 80 kilometres per week. He had previously travelled Lauderdale Avenue on at least 50 occasions. He normally rode his bicycle on weekends. 19There was a shared bicycle/pedestrian path on the southern side of Lauderdale Avenue in the vicinity of the accident location. When Mr Keramidas reviewed the shared path, he made the following observations: "On review of the implemented shared pathway, it was noted that a number of "pinch" points still existed and the width of the shared path fell below minimum desirable standards at some locations on approach to the instant location from the west and travelling east. It was also noted that the downhill grade on approach to the King Avenue intersection exceeded the maximum available under the Austroads Guide due to its steepness and length. In the author's opinion the path [as constructed] would be a valuable asset for family or general recreational cycling but does not provide the required standard of geometric design for a high speed cycleway. Indeed, based on the author's observations a high volume of pedestrian traffic would be expected between King Avenue intersection and the location where the shared pathway separates from the Manly Scenic Walk at Esplanade Park. Essentially therefore a distance of some 150 to 200 metres could be described as involving high pedestrian activity requiring cyclists [which are required to give way to pedestrians on shared paths] to operate in slow conditions with the activation of bells or other audible warning devices to highlight their impending approach." (Exhibit 5 [report 20 May 2013] p 27 - 28). 20Mr McDonald made observations to similar effect concerning the shared pedestrian/bicycle path: "5.33 ... the general deficiencies of the path between Condamine Street and Rosedale Avenue include: The path itself being narrower than the desirable and absolute minimum widths of 2 and 2.5 metres respectively in the number of places without heavy pedestrian utilisation. The width is less than 1 metre at one point and down to 1.4, 1.7 and 1.9 in other locations. The path itself being narrower than the 3 metre wide recommended for a busy shared path in the area of heavy usage and the pedestrian volumes being high enough to create significant conflict with shared use. The path width is as low as 1.7 metres on the busy section of path east of King Avenue. Insufficient clearance beside the path to fixed objects. Insufficient sight distance through corners. Hazardous drop-offs over fences immediately beside the path (and an impalement hazard at one point). Hazardous drop-offs down the kerb immediately beside the path and into oncoming vehicles. Hazardous vehicular and pedestrian crossings directly onto the path from adjacent premises with heavily restricted sight distances and poor approach alignments. Uneven path surface. ... 5.36 It should be noted that to slow a cyclist down to the pace of a pedestrian (4 - 7 km/h) would greatly delay a cyclist and would also create its own risks as the bicycle is not stable at these speeds making it difficult to follow a straight line and potentially leading to a fall. Where the path abuts the roadway this fall could be into oncoming traffic." (Exhibit K, p19-20) 21A video was shown to the Court (exhibit E) which depicted the shared bicycle/pedestrian path leading up to and beyond the point where the accident occurred. That video confirmed the observations of the experts. This is particularly so when there was evidence that there were children on this path at the time of the accident. 22Matters which I particularly noted from the video were that there were a number of blind corners on the path because of bends in the road and that there were vehicle and pedestrian crossings cutting across the path at many locations. I accept that on a Saturday afternoon in summer it was reasonable to expect not only children but that strollers, people with dogs and a significant number of adults would be using the shared path in the vicinity of where the accident occurred. 23The plaintiff said that on the previous occasions that he had ridden along Lauderdale Avenue, he had sometimes used the shared bicycle/pedestrian path and sometimes the roadway. On the day of the day of the accident he had commenced using the shared path but not long before the accident, he had moved from the shared path to Lauderdale Avenue. He explained his reasons for doing so as follows: "A. Where I, basically I heard a lot of children ahead of [me] and I decided rather than risk running into little kids, as can happen on the cycleway, I decided to get off my bike. I waited for the traffic to clear then I walked the bike across the road, and once again mounted the bike and headed down Lauderdale Avenue." (T.18.1) "Q. Why did you make the decision to, apart from hearing children ahead, were there any other reasons for getting off the shared bike and footpath? A. Well, I knew that the path constricted considerably and with the children about and lots of people about it was virtually impossible to ride a bike down that shared pathway. " (T.18.49) 24In those circumstances, I do not regard it as unreasonable for the plaintiff to ride his bicycle on Lauderdale Avenue at the time of the accident, rather than on the shared bicycle/pedestrian path. To my observation which was generally confirmed by the opinion of the experts, there were greater hazards associated with the use of the shared path than were associated with the use of Lauderdale Avenue itself for a person riding a bicycle. 25To the extent that Mr Keramidas expressed a different view, I do not accept it. The decision by the plaintiff to use Lauderdale Avenue rather than the shared path was essentially a value judgment for which the plaintiff gave sound reasons. It follows that I reject the proposition that it was negligent for him to ride his bicycle on Lauderdale Avenue rather than on the shared bicycle/pedestrian path at the time of the accident. 26The plaintiff described the occurrence of the accident as follows: "I was progressing down the hill in a normal manner and essentially a car emerged from the side which I had not seen in any shape or form earlier, and I hit my brakes as hard as I could without basically flipping the bike". (T.19.6) 27He said that when he first saw the defendant's vehicle, it was blocking approximately half the eastbound carriageway and was stationary. As he came closer, it moved again so that it almost completely blocked the eastbound carriageway. He estimated that he was approximately 10 or 15 metres away from the vehicle when he first saw it but he was not sure about that distance. (In his evidentiary statement his estimate was 25 metres.) He said that he commenced to brake as soon as he saw the vehicle but not heavily because of the risk of being thrown forwards over the handlebars of the bike. He said that there was insufficient room for him to go around the vehicle using the eastbound lane and that he was not able to move into the westbound lane because there was a car in that lane coming towards him. 28In cross-examination the plaintiff agreed that there was always a possibility of cars coming out of driveways in Lauderdale Avenue and that it was necessary for him when riding down Lauderdale Avenue to keep a lookout to the best of his ability for any cars emerging from those driveways (T.27.31, 28.16). The plaintiff denied that he had any view of the particular driveway when he reached Willyama Avenue (this was a point approximately 25 metres to the west of where the accident occurred (T.32.3 - .27)). 29The plaintiff denied that just before the accident he was looking towards two women who were walking down the shared path on the southern side of Lauderdale Avenue, rather than keeping a proper lookout to his front (T.33.8 - .37). The plaintiff did not accept that at the time of impact the vehicle was about a metre from the centreline of the road and maintained that he was unable to go into the westbound carriageway because of an oncoming vehicle (T.35.14 - .30). He did not accept the proposition that there was no vehicle coming towards him in the westbound carriageway. 30Some aspects of the plaintiff's description of how the accident occurred were controversial. I will resolve these issues in due course. 31The defendant gave evidence that she had lived at [] Lauderdale Avenue for three years at the time of the accident. She used the driveway on a daily basis to exit those premises, 50 percent of the time driving to the west and 50 percent to the east. That is not to say that on every occasion the defendant drove to the west, there were three or four vehicles parked to the west of the driveway. However, the parking of vehicles there appears to have been a common event, as indicated both by the defendant and Mr Tomasic. Moreover, the police indicated that all available parking spaces were taken on weekends so that Lauderdale Avenue presented as a "wall of cars". 54The defendant must have known that when turning onto the westbound carriageway, when cars were parked to the west of the driveway, apart from an initial observation of a small part of Lauderdale Avenue to the west when emerging from the garage, she would have no observation of what vehicles were using the eastbound lane until she had cleared the line of parked cars sufficiently to allow her to look past them to the west. It was, accordingly, readily foreseeable that if a vehicle were travelling east down Lauderdale Avenue at an excessive speed, or if the driver were not keeping a proper lookout, a collision could occur without the defendant being able to do anything to avoid it. 55The defendant's response to this foreseeable risk was to drive slowly onto the eastbound carriageway, thereby enabling a vehicle approaching from the east to observe her encroachment onto the road and take appropriate action, either by stopping, slowing down or swerving. In other words, the avoidance of a collision between those points in time, i.e. when her vehicle initially emerged from the garage and when she was able to make her first observation past the parked vehicles to the west, was entirely dependent upon reasonable care being taken by vehicles using the eastbound lane in Lauderdale Avenue. 56The crucial question in relation to breach of duty is whether in all the circumstances this was a reasonable response by the defendant to the foreseeable risk of a collision. Would a reasonable person in the position of the defendant have taken any further action to avoid the foreseeable risk of harm? 57In my opinion, the risk of a collision was high with potentially serious consequences. This is despite the fact that during the three years that the defendant had lived there, she had not had an accident nor had she had any near misses. There was no evidence of whether any other residents of the block of units had experienced any accidents or near misses. The Court is all too familiar, because of the many motor vehicle accident cases which come before it, of the propensity of drivers, even good drivers, not to keep a proper lookout or to otherwise be distracted from time to time with often catastrophic results. This is particularly so in circumstances such as these where a person in the position of the defendant must depend entirely upon the other driver to avoid a collision during the time that she had no vision of vehicles travelling east in Lauderdale Avenue. 58I have concluded that in the circumstances of this case the defendant did breach the duty which she owed to other road users and in particular the plaintiff. This is because being aware of the problem she did nothing to ameliorate it, despite having lived in the premises for three years. In effect, every time she drove from the premises onto the westbound lane when there were cars parked to the west of the driveway, she was accepting the risk that drivers using the eastbound lane might be speeding or not keeping a sufficient lookout so as to avoid a collision. 59A reasonable driver in the position of the defendant would have looked for a safer way of driving onto Lauderdale Avenue from those premises. An obvious solution existed which was that described by Mr McDonald in his reports of 28 March 2013 (exhibit K) and 14 February 2014 (exhibit L): "5.20 Vehicles turning left can do with so with comparative safety as they turn into the parking lane/bus zone without intruding into the eastbound lane. This movement enables the driver to merge into the eastbound lane with safe vision of eastbound traffic." (exhibit K) "3.3 Accordingly I consider the only safe path of exiting [**] Lauderdale Avenue in the circumstances was to turn left into the approximately 30 metres clear length of the bus zone (and adjacent driveways)." (exhibit L) In the joint experts' report (exhibit N) this issue was dealt with as follows: "4.2 Were there available options for the defendant to avoid a collision? What were they and were they reasonable alternatives? Other than the act of slowly encroaching into the traffic lane as attempted by the defendant, the only alternative course of action available to her would have been to turn left out of her driveway instead. Mr Keramidas is of the opinion that while this course of action could have potentially avoided this collision as a general proposition it may not have provided any more safeguard to avoid a collision as discussed on pp 45 and 46 of his report. Mr McDonald is of the opinion that the left turn utilising the space made available by the bus stop would have allowed a collision to be avoided." 60In his evidence Mr Keramidas modified that opinion. While he was still of the opinion that a turn to the left would involve some encroachment onto the eastbound lane, he did accept that the extent of the encroachment would have been much less and for a lesser period of time. 61The evidence of the experts on this issue was: "KERAMIDAS: Yes, I agree with what Mr McDonald has indicated. I guess the issue becomes one of what point does the driver detect this left turning movement. If it is in the initial part where, as I think it was his Honour indicated, say if about 45 degree angle. So it hasn't reached the point where it has apexed and starting the top of the loop. At that point a driver isn't going to know, an eastbound driver isn't going to know what is this vehicle doing ahead. And that is where you would need to then be considering your response. Once the vehicle has apexed and it is obvious it is looping back around, then it is merely a case of positioning your vehicle over to the right so as not to hit it. It is that initial transition, both for left and right, it is that initial movement of the vehicle intruding on to the eastbound traffic lane that will create the, if you like, the potential for an emergency response and then subsequently in both cases the right turn progressing slowly into the lane, there is no longer an emergency situation, it is a continuing interference and I would expect a driver to say, well I understand what is happening here. If the indicator is operating you have a pretty clear idea of what is going to happen and you would slow and stop. Same with the left, that initial motion could create the response, it could be to diverge right, there isn't a lot of clearance there. You could certainly stay within the eastbound lane, you could diverge into the west or you could brake. McDONALD: Can I add to that, in terms of whether an emergency response would be required or not? If the vehicle moving slowly I don't think it would present as a hazard requiring an emergency response. It would just simply present as a vehicle at an angle slowly crossing the edge line, akin to vehicles manoeuvring out of parking, that it doesn't require an emergency response. Similarly as you drive past vehicles that are emerging from parking, or indeed doors being opened from parked vehicles, I wouldn't expect a motorist to initiate an emergency veer and suddenly veer on to, say, the incorrect side of the roadway. KERAMIDAS: I agree with what Mr McDonald has indicated. I think the key to it, and we probably both have been alluding to it, is the speed of the approaching vehicle, sorry, not the approaching vehicle, the intruding vehicle. So, for example, in this particular case with the defendant having moved out, I think it is about 2 metres or so, 2.3 metres, something of that order, intruding on to the roadway from where the edge of the parked vehicles is. That would have taken around about four seconds or so to do. So the emerging is quite slow and so I agree with Mr McDonald. So in that situation the initial part of the move doesn't require an emergency response because the vehicle hasn't sufficiently intruded to create an issue. ... ... McDONALD: ... The edges of the driveway are splayed up the kerb but also the driveway itself is wider than typical. I wouldn't regard it as actually a two lane driveway, it is not quite adequate for that movement but it is almost wide enough for that movement. So it gives quite a fair bit of space to initiate the turn prior to crossing the gutter itself. KERAMIDAS: Yes I agree, the edges of the driveway here are splayed, so there are roughly about double the ramp angle of the actual driveway itself. So they can certainly be traversed. And I agree with Mr McDonald, it is wider than a normal driveway, not quite a double. COUNSEL: Mr McDonald, taking up some of the earlier evidence from both of you, if a person were to emerge from the driveway heading to the left, even if they were at a greater angle and perhaps even if something closer to 45 degrees, but travelling slowly, would there still not give, firstly ample opportunity to go around them, and secondly an increase in the reaction time that is available for an on coming eastbound vehicle? McDONALD: Yes, it would increase the reaction time because it would put the front of the vehicle further to the east from where the parked cars are. But it is also worth noting whilst it is at 45 degrees at a moment in time as it continues to turn the front of the vehicle would actually swing around to a shallow angle and would move back into the bus stop or closer to the kerb. KERAMIDAS: Yes, I agree with that and I think again it is the issue of how much is that intrusion. So there will be a physical additional distance, be it half a metre initially as it starts its turn, maybe a metre. So there will be additional perception response time." (T.109.27 - 111.28) 62The situation would be otherwise if there was not the space created by the bus stop to the east of the driveway. In that situation the defendant would have no choice other than to do what she did. On that issue, Mr McDonald said: "McDONALD: Only one comment on the issue of being a common and accepted practice as described by Mr Keramidas. I think in the circumstances where there was no option and in this instance that could be if there was no bus stop and there were cars parked in the area of the bus stop then there would be no option. Whether the vehicle was going to turn left or right they would need to edge out into that lane without adequate vision and interfere with the on coming vehicles. And what is true for some intersections where there is poor visibility and whether you are turning left or right you are going to cause interference. The difference being in that instance there is the option there, there aren't vehicles parked to the left. So the option is available." (T.105.16) 63The situation might also be different if the defendant had not lived in the premises for three years and thereby have become familiar with the problem and had time to consider alternatives such as turning to the east and utilising the space created by the bus stop. If the defendant were a visitor to the premises or had only been living there for a comparatively brief period, it might not be reasonable for her to have taken adequate heed of the potential risks involved in driving onto the westbound lane and to have considered alternatives. However, such is not this case. 64 My examination of the diagrams prepared by the experts and the photographs leads me to conclude that Mr McDonald's assessment of the feasibility of driving to the left when exiting these premises should be accepted. Not only would it have avoided this accident (which is not the test), but it would always have provided a safer option whenever cars were parked to the west of the driveway. To the extent that there was any protrusion onto the eastbound lane, this would be much less and for a significantly shorter period than the course followed by the defendant. A driver turning to the east and utilising the space created by the bus stop, would be able to check by using his or her side mirror whether any vehicle was approaching from the west so as to enable the driver to safely enter the eastbound lane. The only downside to this alternative was the inconvenience of driving around the block before heading west, an additional distance of approximately 600 metres. 65It follows that the requirements of ss5B and 5C of the Civil Liability Act 2002 (CLA) have been satisfied. The risk of harm was a risk of a collision with a vehicle travelling east in Lauderdale Avenue, whether it was a car or a bicycle. Not only was the risk of a collision foreseeable, but it was not insignificant in that the likelihood of it occurring was high and the consequences potentially catastrophic. In the circumstances, a reasonable driver in the position of the defendant would have taken the course which the plaintiff suggested, i.e. turning to the east when cars were parked to the west of the driveway. The burden of taking such a precaution was modest in the circumstances and would have given rise to no more than a temporary inconvenience. Such an analysis is valid, not based on hindsight but when one looks at the circumstances prospectively from the point of view of a reasonable driver in the position of the defendant. Contributory negligence on the part of the plaintiff 66The defendant submitted that the plaintiff had failed to take reasonable care for his own safety in three respects: (i) Using Lauderdale Avenue rather than the shared path. (ii) Failing to keep a proper lookout. (iii) Failing to steer his bike to the right so as to ride around the defendant's vehicle. 67The relevant principles applicable to contributory negligence were considered by Basten JA in Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [13] where his Honour said: "Relevant principles 13 The assessment of contributory negligence is to be conducted in accordance with the requirements of s 138 of the Motor Accidents Compensation Act 1999 (NSW). This provision, relevantly, adopts two principles. The first is that "damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case": s 138(3). That language reflects the standard applied by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). 14 Secondly, the Motor Accidents Compensation Act requires that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The reference to the common law may be put to one side: apportionment of liability on account of contributory negligence is a creature of statute in this jurisdiction. Importantly, however, the "enacted law as to contributory negligence" picks up Divs 2 and 8 of Pt 1A of the Civil Liability Act 2002 (NSW) which expressly apply to motor accidents: s 3B(2)(a). Division 8 includes s 5R which is in the following terms: 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. 15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him- or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind. 16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated: "Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?" 17 The Report then stated at par 8.11: "Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported." 18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated: "The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."" 68I have already dealt with the first particular of contributory negligence (see [24] - [25] hereof). 69The competing submissions in relation to the second particular of contributory negligence each focused on estimates given by witnesses as to the speed and the location of the plaintiff at various times leading up to the accident. The defendant relied upon Ms Kenny's estimate that she had the plaintiff under observation for four seconds and on her recollection of where he was on the road at various times before the accident. The defendant also relied upon the experts' estimate that the defendant would have been stationary for approximately one second before the accident. On the basis of that evidence, the defendant submitted that had the plaintiff been keeping a proper lookout and not looking towards Ms Kenny and her companion, he should have been able to stop in time. The defendant submitted that this was so in circumstances where there were a number of driveways on his left which constituted a potential source of danger to him in Lauderdale Avenue. 70The plaintiff relied upon the evidence of Ms Kenny that he commenced braking approximately 20 metres from the emerging car and on the expert evidence that before doing so, he would have travelled approximately 15 metres, having regard to his perception/reaction time. The plaintiff submitted that regardless of where he was looking before that time, the expert evidence did not establish with any reliability that the defendant's vehicle was available to be seen earlier. 71As already indicated, the recollection of witnesses some two years after an event which occurred over a very short period of time should not be treated in the same way as if precise measurements were available - e.g. the length of skid marks in an accident. To do so is to impose a false precision on what at best were honest estimates by the witnesses. Accordingly, the evidence of those witnesses should be dealt with as honest estimates, not precise measurements. 72It was agreed by the experts that at the time of impact the plaintiff had substantially reduced his speed and was not travelling particularly fast. They estimated a speed equivalent to a "fast walk". On that basis, they also estimated that had the plaintiff applied his brakes between .3 and .5 of a second earlier than he did, a collision would not have occurred. 73Without relying upon the precise figures given by the witnesses, what is reasonably clear from the evidence is that the plaintiff for a significant period of time, probably not as long as four seconds, was looking towards Ms Kenny and her companion as he approached the accident site. While it is true that he was wearing sunglasses and therefore it was not possible for Ms Kenny to say exactly what he was looking at, the fact that his face was turned towards the women and that when he turned back she heard a gasp and observed him to commence applying his brakes, is strongly suggestive that for some brief period of time he was not keeping a proper lookout. The plaintiff's own evidence (see [26] hereof) suggests that he was not keeping a proper lookout in that his first observation of the car seems to have been when it was already well beyond the parked cars, rather than as it was slowly moving out into the eastbound lane. 74The evidence of the defendant which was regarded as generally reasonable by the experts (although she was probably travelling faster than her estimate of 2 kp/h) was that she was moving slowly onto the eastbound lane until a point when she had clear vision to the west when she saw the plaintiff for the first time. By that stage, the extent of her encroachment onto the eastbound lane was between 1.9 and 1.6 metres, being the experts' estimate of the position of the front of the Subaru at the point of impact. Given that the difference between the impact occurring and the bicycle safely coming to a halt was between .3 and .5 of a second, and for the reasons set out above, I have concluded that the commencement of the plaintiff's braking was later than it should have been because he was not keeping a proper lookout. 75In that regard, I accept the defendant's submission that given the presence of driveways and parked motor vehicles on the northern side of Lauderdale Avenue, it was negligent of the plaintiff to look towards Ms Kenny and her companion for as long as he did and that this delayed the commencement of his braking. 76It follows that I am satisfied that this particular of contributory negligence has been made out. 77I have already found that there was no vehicle approaching the plaintiff in the westbound lane in such a way as to prevent him swerving to the right so as to avoid the defendant's vehicle. That does not mean that the plaintiff was negligent in not doing so. As the experts agreed, it would have been necessary for the plaintiff to make a decision to swerve to the right some distance before he reached the defendant's vehicle, it being self-evident that a bicycle cannot make a sharp turn of that kind. The decision which confronted the plaintiff was a difficult one which had to be made instantly. The plaintiff chose to brake rather than to swerve. In doing so, he miscalculated his capacity to come to a halt by between .3 and .5 of a second. I am not prepared to find that the plaintiff was negligent in so doing. 78It is true that in retrospect had the plaintiff served the accident may not have occurred. That, however, is not the test. A court has to look at matters prospectively from the plaintiff's point of view. Given the narrow margin in time between a collision occurring or not, the plaintiff would have had a reasonable expectation that he could bring his bicycle to a stop before impact or that the impact would be relatively minor so that an injury would not result. As it turns out, the plaintiff was extremely unlucky in that a very low speed impact resulted in such catastrophic injuries. 79Having found that the plaintiff was contributorily negligent, it is necessary to apportion responsibility between him and the defendant. Some assistance in that regard is given by the analysis of Basten JA in Truong previously referred to. One matter to be taken into account was the conclusion of the experts in their joint report that at the time of the accident the plaintiff was in a better position to detect the movement of the defendant's vehicle than she was to detect him. That expression of opinion, however, was based on what actually occurred, i.e. that for a period of time the defendant had no vision of any vehicles approaching from the west. It is not a decisive consideration, particularly when the negligence found against the defendant was that her vehicle should not have been in that position. 80The principles of apportionment were set out in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 where the Court said at 494: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." 81The defendant, as the driver of a motor vehicle, who had a choice of utilising the bus stop and turning left out of the drive was in control of the situation. Had she taken that option, a dangerous situation would not have eventuated and it would not have mattered if the plaintiff had been momentarily distracted. Her decision to enter the eastbound lane in the way in which she did, brought about the potentially dangerous situation. Accordingly, I regard the causal potency of the defendant's negligence as greater than that of the plaintiff. 82In relation to moral culpability, I also find that it weighs more heavily against the defendant than the plaintiff. The defendant having lived in the premises for three years, was well aware of the danger associated with driving into the eastbound lane in circumstances where she could not see vehicles approaching from the west. This is to be contrasted with the plaintiff's relatively brief lapse in concentration. 83Taking those matters into account, I would apportion liability as to 75 percent against the defendant and 25 percent against the plaintiff. Blameless motor accident 84The plaintiff's claim has been pleaded in the alternative. If the accident were not caused by the fault of the defendant, the alternative claim is that it is a blameless motor accident in accordance with the provisions of the Motor Accidents Compensation Act 1999. In the event that I have erred in finding fault on the part of the defendant, it is necessary for the Court to consider whether the accident meets the definition of "blameless motor accident" within the meaning of the Act. 85Once there is an averment by a plaintiff that an accident is a blameless motor accident, the onus is on the defendant to prove that it is not a "blameless motor accident" (MAC Act s7C). The definition of "blameless motor accident" is found in s7A. It relevantly provides: "7A blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person." 86If an accident meets the definition of "blameless motor accident" in s7A, s7B operates to deem that the accident has occurred by the fault of the driver of the vehicle involved in the accident, thereby entitling the plaintiff to claim damages in the usual way (as if the driver had in fact been at fault). 87The meaning of s7A was considered in Axiak v Ingram [2012] NSWCA 311. That case is authority for the proposition that a pedestrian plaintiff could not constitute "any other person" for the purposes of s7A because any contribution to the cause of the accident by the pedestrian plaintiff constituted "contributory negligence" rather than "tortious conduct" meeting the definition of "fault" in the Act (which is defined as being "negligence or any other tort"). 88I am satisfied that the effect of the decision in Axiak is that fault on the part of a plaintiff which contributes to the cause of an accident does not constitute "fault" on behalf of "any other person" for the purposes of s7A. Accordingly, my finding that the plaintiff has contributed to the cause of the accident and that there should be a finding of contributory negligence against him would not prevent the accident being a "blameless motor accident". 89The defendant submitted that the accident was caused in part by the fault of the owner and driver of a Honda CRV which was parked immediately to the west of the driveway. That fault was particularised in two ways: (i) That the driver of the Honda CRV was in breach of Australian Road Rule 195 which is to the effect that a driver must not stop on a road within 20 metres before a sign indicating the existence of a bus stop. In this case, the 20 metre distance extended to a point nearly 6 metres west of the driveway. The defendant submitted that the Honda CRV was therefore parked contrary to the Australian Road Rules, even though there were no signs to indicate a bus stop in the location where it was parked. (ii) The driver of the Honda CRV should have realised when he or she parked in that location that the vehicle would substantially block the sight line to the west for a driver using the driveway and intending to turn right therefrom. That being so, it was foreseeable to the driver of the Honda CRV that such an interference with the sight line could cause a serious accident. 90By reference to the definition of "fault" in s3 of the Act, in order for the defendant to prove that the accident was caused by the fault of the driver of the Honda CRV, the defendant had to prove that the driver was negligent. This requires a consideration of the requirements for negligence generally and as set out in the CLA. Essentially, the defendant had to establish that a reasonable person in the position of the driver of the Honda CRV would not have parked in the parking space immediately to the west of the driveway. This is so notwithstanding that there were no signs prohibiting parking in that location, although there was such a sign prohibiting parking further to the west near the entrance to Willyama Avenue. 91It is clear from the photographs and the diagrams that the absence of any sign prohibiting parking in that location, coupled with the presence of other signs prohibiting parking elsewhere, would cause a reasonable person in the position of the driver of the Honda CRV to believe that parking was permitted in that location. A reasonable driver would simply not be aware of the possibility that he or she might be in breach of Australian Road Rule 195 relating to bus stops in the absence of any such sign. 92Moreover, it would not have been foreseeable to a reasonable driver that by parking in that space, he or she might obscure the sight line to the west of a driver such as the defendant so as to give rise to a risk of an accident. Such an approach is based entirely upon hindsight reasoning and is contrary to the consistent guidance of the High Court to the effect that such assessments must be made on a prospective basis from the point of view of the proposed defendant. It presupposes a degree of prescience which is quite unreasonable for a driver in this position. 93It follows that I am not satisfied that had proceedings in negligence been brought against the driver of the Honda CRV either by the defendant for contribution or by the plaintiff, negligence would have been established against that person. It also follows that I am satisfied that in accordance with the provisions of the MAC Act that this was a blameless motor accident. Conclusion 94I enter a verdict in favour of the plaintiff against the defendant with damages to be assessed but note that such damages are to be reduced by 25 percent to take account of the plaintiff's contributory negligence.