Osman By His Tutor Osman v Clement

The plaintiff

1. The plaintiff was called and gave only very brief evidence. The substance of it was to indicate that he had no recall of what occurred. He was not challenged on that evidence.

Lisa Littlejohn

1. Ms Lisa Littlejohn was called. Ms Littlejohn was driving her vehicle (later identified in her police statement as a grey Kia Cerato Hatch) until she stopped at a stop line on the inside or central lane heading south, along Balmoral Street, in the same direction as the plaintiff's vehicle, which was travelling on her left, in the kerbside lane.
2. The gist of her evidence was that she saw the traffic light turn orange and slowed her vehicle to stop, at the stop line. Whilst her vehicle was stopped at that that line, she noticed, first, a white vehicle on the kerbside lane driving through the traffic lights when they were "on the cusp" of changing from orange to red. She recalled that the white vehicle had not slowed down. She also said that after seeing the white car go through, she saw another vehicle, a blue car, come up on her inside and driving through. This was the plaintiff's vehicle. It had come quickly past her. She said she thought that the distance between the white vehicle, and the blue vehicle was at least one car. She said, in cross-examination, that she believed that the plaintiff's vehicle drove through the intersection after she had observed that the light had turned red.
3. In an earlier statement to police (Exhibit D), dated 24 December 2017, which was admitted without objection, Ms Littlejohn had told police that the white car had gone through the intersection on an orange light. She described the blue (the plaintiff's) car driving through the intersection just as the truck was starting to make its right hand turn. She had told police that she was "not sure" what colour the traffic light was at the time the blue vehicle had entered the intersection; but estimated that there was a space of a single car gap between the white car and the blue car.

The defendant

1. Senior Counsel for the defendant elected not to call the insured driver, Mr David Clement.
2. Once that indication was made, and without objection, Counsel for the plaintiff tendered a record of interview that Mr Clement conducted with the police on 23 December 2017 (Exhibit W). In that interview, the insured driver provided the following unimpeded (i.e. prior to specific questioning) account (A9): "I was driving down Reservoir Road heading north towards the intersection of Bungarribee Road. I come down to the lights. The lights changed, the arrow changed to red. I stopped at the lights, at the line. They still had green going straight through. The red arrow disappeared and there was traffic coming. Wait for it was clear to turn the corner. I went to go and as I was gone into the centre of the intersection, there was, the cars come over the hill heading south along Balmoral (Street) towards the intersection and there was a white car in their right hand lane, so the centre lane, that appeared to be speeding so I stopped in the middle of the intersection and waited for him to go through. By the time he's gone past me, the lights have gone, changed from amber to red and the car that was behind that white car in that right hand lane was stopping for the lights and I accelerated around the corner. But the car in the left hand lane, the blue car didn't stop and hit the front of the truck…"
3. Other pertinent features of the record of interview included the following:

• Mr Clement said that he went through the intersection at least once, and possibly twice, a day, about 5 days a week, in the course of collecting trailers from Eastern Creek. The accident occurred as he was heading back in the direction of Seven Hills (A25-30);
• Mr Clement was familiar, or experienced in the use of the truck (A 34-37);
• he reiterated that after the red arrow disappeared, he crept forward (from Reservoir Road) into the centre of the intersection, in order to make the turn, and stopped, probably for a minute, as traffic (heading south down Balmoral Street, towards Reservoir Road) was coming over the hill (A 43-46);
• he saw the white car come over the hill, thought that it was travelling fast, so he waited for him and he noticed the car behind him (that is, behind the white car) had slowed to a stop (A 47);
• he saw the blue car in the kerbside lane but located that vehicle back from the lights "and so, I noticed the lights had changed to red so I've accelerated around the corner" (A 48);
• he said that the lights (facing him) went from amber to red and before he started to accelerate his truck, the second time, the lights were red; there was a red arrow (A49- 52). He noticed that the arrow was red for two, possibly three seconds (A 53-54, 102);
• when he started to accelerate (two or three seconds after the arrow was red),
• he saw the car behind the white car (possibly a brown car) stopped at the stop line (the white car had progressed through) in the centre lane (A 56-58);
• the blue car, in the kerbside lane, was 10 metres back from the brown car, accelerated through and did not stop; although he did not believe that the blue car was speeding, it did not slow down (A 59-60);
• he said that when he first saw the blue car, he thought that the blue car was going to stop since the car next to him (which was a reference to Ms Littlejohn's vehicle) had stopped (A 62) and assumed that it (the blue car) was also going to stop (A 99);
• he believed that he was in 'no-man's-land', sitting in the middle of the intersection. He went through a red traffic signal because he believed he was already committed to going through the intersection (A 100-101, 105);
• he said that nothing blocked his vision of the blue car, which was in plain sight (A 63-64), and that he had a clear view of the traffic lights (A 85);
• Mr Clement expressed his opinion that the cause of the accident was the blue car travelling through the red light (A 67-68, 107);
• it was his experience that when his (arrow) light was red, the red light (facing cars travelling south down Balmoral Road) went red as well (A 103-104).

1. He could not recall whether, just prior to the collision, he slammed his foot on the brakes or was in the process of changing the pedals (A 82-3).

NSW Police report (Exhibit R)

1. In the section of the report titled 'Crash Summary Details', this report essentially stated that the insured driver collided into the plaintiff's vehicle as it was turning right. No reference was made to traffic lights. No reference was made to the plaintiff's estimated speed.

Police photos of the vehicles after the collision (Exhibit S)

1. These relevantly indicated substantial damage to the front offside of the driver's side to the plaintiff's vehicle; and the point of impact being the front right side of the insured driver's vehicle. Nothing was made of these photos in the closing submissions of the parties.

Police 'GIPA' documents (Exhibit T)

1. The plaintiff applied for access to documents under the Government Information (Public Access) Act 2009 (GIPA). The response of the NSW Police Force was to produce partly redacted versions of the documents.
2. Much of the documents produced were COPS entries for Event Ref E66765328, but there were also copies of police notebooks and police statements of witnesses.

The COPS entries

1. The COPS entries were apparently authored by Detective Aimee Lennard (as she was then ranked), who first created the entries at 8:54pm on the date of the accident (15 December 2017) and finished completing them on 17 December 2017 at 11:58pm.
2. An entry that appeared at page 3 of the COPS entries recorded an account of the collision as indicated in the Police Report (Exhibit R): that is, the insured vehicle entering into the lane of the plaintiff's vehicle.
3. Another entry on page 4 of the COPS entries recorded conflicting accounts from unidentified eyewitnesses. One had reported to police that the plaintiff's vehicle had been "flying through" the intersection, at "high speed" (to beat the lights), thereby causing the collision. Another had reported that the insured vehicle was in an awkward position in the middle of the intersection (apparently stationary) protruding into the lane that the plaintiff's vehicle was travelling in; so that the plaintiff's vehicle was unable to avoid colliding with the truck.

The police statements of unidentified witnesses

1. The police witness statements produced under the GIPA did not identify the names of the witnesses. But by dint of other evidentiary references, it was possible to identify, with confidence, some of the names. I raised with both Counsel whether they considered that the Court should be impeded in identifying witnesses by name, where it was possible to do so. Neither Counsel objected. Indeed, both of them had referred, in written and oral submissions, to persons whose names had been redacted in the statements where it was apparent from other evidence who they were. I indicated at the hearing that I proposed to take the same course in writing this judgment.
2. One statement (apparently prepared and signed on 21 December 2017) relevantly stated: "I was watching cars moving through the intersection. I saw that a white truck that was travelling north had come to a complete stop in the middle of the intersection preparing to turn right into Bungarribee Road. I saw a number of cars travelling south whilst the truck was waiting for a gap to move through. There was a gap in cars and truck started easing forward slowly into the southbound lanes. Suddenly a blue car drove through the intersection, possibly in the furthest lane from me, and crashed into the front of the truck. The car was travelling about the same speed as all the cars before so I don't think it was travelling too quickly. I did not see what the traffic light colour was as the accident happened."
3. There was another unidentified eyewitness, preparing and signing a statement on 23 December 2017. Other documents identified the witness as Dominic Ginnone. Mr Ginnone stated that he was travelling east along Bungarribee Road and was stopped at the lights, in lane 1 or (sic) 3. The right green arrow activated for Bungarribee Road (presumably from motor vehicles that had travelled from Reservoir Road) and Mr Ginnone stated that he saw that the white truck, with a green arrow light, had started to turn into the direction of Bungarribee Road. Then Mr Ginnone heard the impact of the truck colliding with the plaintiff's car. Mr Ginnone said that the green light facing him activated for traffic to go straight. He, however, pulled over next to the truck in order to assist the occupant of the blue vehicle (the plaintiff).
4. A further unidentified witness prepared a statement, also on 23 December 2017. Other documents identified this witness as being Peter Bartolo. Mr Bartolo indicated that he was travelling west along Bungarribee Road in his Toyota Hilux motor vehicle. He recalled coming to a complete stop at the red light signal. The lane to his immediate right was the lane which vehicles making right hand turns from Reservoir Road, like the defendant's vehicle, would properly turn into. Mr Bartolo stated that as he waited for the lights to change, he watched the general flow of traffic from north (Balmoral Road) to south (Reservoir Road). He recalled seeing the insured vehicle coming through the intersection from the south (Reservoir Road) and reach the centre of the intersection, preparing for a right turn into Bungarribee Road, before coming to a complete stop, he recalled, for 4 to 5 seconds. Mr Bartolo did not recall seeing cars travelling from north (Balmoral Road) to south (Reservoir Road) and was unable to see the traffic signals facing such vehicles. He did recall seeing the truck ("easing the accelerator slightly in a forward motion") commence to make its right turn (from the stationary position), but because another vehicle was in front of his vehicle, he could not see the vehicles approaching the intersection from the north (Balmoral Road). But Mr Bartolo estimated that as the truck took off, it was only about a metre into the intersection when the blue car was hit.
5. Another unidentified witness prepared and signed a statement on 24 December 2017. This witness said that she had been travelling south along Balmoral Road (in the same direction as the plaintiff) in a grey Kia Cerato hatch motor vehicle. This plainly appears to be a reference to Ms Littlejohn; an inference strengthened given the identical correspondence between the version of the witness statement in Exhibit T and the content of Exhibit D.
6. I summarised Exhibit D earlier in these reasons. Mrs Littlejohn was in the centre lane heading south down Balmoral Street and when about 10 metres back from the intersection, she noticed the traffic lights turned orange and immediately started to slow down. She said that as her vehicle came to a complete stop, (after the lights had turned orange for 2-3 seconds), she saw a white car on the left (kerbside) lane go through the orange light. She considered that the driver, of the white car, had left it very late to proceed through the intersection. She said that she saw a white truck stopped in the middle of the intersection. It was facing her vehicle. Mrs Littlejohn could not recall how long it stopped for, but within a couple of seconds she saw the truck driver ease forward slowly and commence to make the turn. She recalled that the truck had passed through her lane and had only just made it to the start of the kerbside lane when she saw a blue car drive down on her left side. Mrs Littlejohn was unsure what the traffic light colour was at the time the blue car entered the intersection, but estimated that there was about a one car gap between the white car and the blue car.
7. The GIPA records then contained handwritten notations of a statement that appeared in a police notebook (pages 45-49 of the notebook) from another witness, dated 23 December 2017; and another handwritten notation of a statement that appeared in a police notebook (pp 51-56). With reference to the content of the Pulse Investigation report (Exhibit 2 - see the reasons below), I surmised that the witnesses were Dorina Pinter and Attila Gall, respectively.
8. Ms Pinter said that she was the front seat passenger of a black Volkswagen sedan motor vehicle being driven by her husband, Attila Gall. Mr Gall was driving south on Balmoral Road in the kerbside lane. The witness recalled that her husband's vehicle was about 30 or 40 metres behind a blue motor vehicle. The witness further recalled that about 30-40 metres from the intersection, the lights had turned orange and her car had slowed down; but the blue car continued at the same speed (which Ms Pinter had estimated was about 30km/h ahead of her vehicle). She said she noted that a dark car had already come to a complete stop in the centre lane as her vehicle had slowed further. The witness said that, about 15-20 metres from the intersection, the traffic light had turned red and also noticed that the blue car in front of her vehicle was still going at the same speed. The notes indicate that the witness had said something about the blue car, but at this point, the handwritten note became redacted.
9. The second of the handwritten statements was from Attila Gall, the driver of the black Volkswagen sedan vehicle. He similarly noticed that as his vehicle was reaching the intersection, a blue car was about 30 - 40 metres ahead of his vehicle, which he estimated was travelling at about 30km/h (the same speed he recalled driving at). He recalled that about 30-40 metres from the intersection, the colour of the lights changed from green to orange, so he started braking. He said that he noticed that a dark car on the centre lane (on his right side) had slowed down and had indeed stopped. At the end of the statement, he added that the dark car had stopped "as the light had turned red". He recalled seeing a white truck stopped in the middle of the intersection. He recalled the blue car cross the line into the intersection and at the exact same time as it did, the truck started to make the turn, passing the (inside) lane and then he saw the truck hit the driver side of the blue car.

Expert evidence for the plaintiff

1. This consisted of a report of Grant Johnston, an accident reconstruction expert, dated 31 August 2020 (Exhibit U). Mr Johnston's expert opinions have been regularly sought in civil and criminal proceedings involving traffic collisions. Mr Johnston was not required to attend the hearing for cross-examination on his report.
2. Mr Johnston's report did not reach any affirmative conclusion upon the principal liability issue identified by the parties' respective Counsel: what was the colour of the lights facing the plaintiff as he drove through the intersection of Balmoral Street and Bungarribee Road?
3. Mr Johnston's report contained some statements, under the guise of expert opinion, which concerned Mr Clement's obligations; which, even if admissible (per s 80(a) of the Evidence Act 1995 (NSW)), I did not regard as being particularly useful. Some of these were validly objected to by Senior Counsel for Mr Clement. The point of most significance that Mr Johnston raised was his opinion that given the slow speed at which Mr Clement's truck had started from the stationary position he was in in the middle of the intersection, and short stopping distance, he still had time to both identify the plaintiff's vehicle and stop his truck prior to entering on to the plaintiff's path.
4. Mr Johnston reasoned that Mr Clement could have accelerated his truck to approximately 13 km/h by the time of the collision. He considered that the defendant should have been able to see the plaintiff's vehicle approaching the intersection before and as Mr Clement started to accelerate to make his right turn. He estimated that the time to move from the estimated stopping position to the approximate point of impact could have been 3.3 seconds. Mr Johnston further considered that an average driver would only have needed 1.6 seconds to perceive that the plaintiff was going to enter the intersection and then respond and stop in 1.1 metres. This, in Mr Johnston's view, meant that Mr Clement should have been able to avoid the collision.
5. Mr Johnston also considered that there was probably insufficient time for the plaintiff to have identified Mr Clement's turning truck in his path and to have stopped prior to impacting the truck. Counsel for the plaintiff emphasised Mr Johnston's opinion that the sideways movement of the truck probably caused the plaintiff to brake heavily in an attempt to slow down; and that the plaintiff had in fact slowed down; but not so much as to avoid the collision.

Transport for NSW (Exhibit 1)

1. This document (authored by the Senior Network Operations Officer and dated 15 January 2021) explained the traffic signal phasing from different entry points into the subject intersection. The plaintiff's vehicle was permitted to drive (south) from Balmoral Road towards Reservoir Road through the 'E' Phase.
2. During the same phase, traffic proceeding north on Reservoir Road was permitted to turn right into Bungarribee Road east across opposing traffic with driver discretion.
3. Adapting the relevant part of the report, the minimum time allocated to this phase was as follows: Phase Minimum Green Yellow All Red 'E' Phase 8.0 seconds 4.0 seconds 3.0 seconds

Pulse Investigations report (Exhibit 2)

1. This report was prepared by John Clout, a Managing Director of Pulse Investigations. The report is dated 23 March 2018. The report exhibited interviews between the investigator and the officer-in-charge (OIC), Constable Lennard and also the record of interview between Constable Lennard and Mr Clement, whose content was summarised earlier (Exhibit W). Other documents were exhibited, but no reference was made to this report by the defendant's Senior Counsel in argument; so it can be put aside.

Procare investigations reports (Exhibits 3 & 4)

1. These reports concerned the investigator's interview with the OIC in August 2020. In that interview, it is apparent that the OIC played, verbatim, the sound recordings of the records of interview that she had with Mr Clement, and other witnesses, which were later edited for the production of the written police statements. In the case of Mr Clement, his interview with the OIC (23 December 2017) formed the content of the written record of interview (Exhibit W), but Senior Counsel referred the Court to the sound version of that interview conveyed by the OIC to the investigator on 18 August 2020 (A176-177).
2. The part that Senior Counsel for the defendant referred to in his written submissions was reproduced (after editing) in A9 of Exhibit W. The relevant part was as follows: " (the white car) .. appeared to be speeding so I stopped in the middle of the intersection and waited for him to go through. By the time he's gone past me, the lights have gone, changed from amber to red and the car that was behind that white car in that right hand lane was stopping for the lights and I accelerated around the corner. But the car in the left lane, the blue car didn't stop and hit the front of the truck …"
3. To complicate matters further, it appears that the investigator took the sound recording and produced his own written statement, which he got Mr Clement to sign, and which appeared at the very front of Exhibit 4.
4. The relevant portion of Mr Clement's signed written statement to the investigator (at the front of Exhibit 4) was as follows: "35. ..I travelled in a northern direction along Reservoir Road in the centre of my land and I was always looking forward and paying attention to my driving. I was in the right lane 2 of 2 and I intended to turn right into Bungarribee Road. I approached the intersection and I safely slowed down, and I came to a stop at the line before entering the intersection. I had a green circle facing me with no arrow. I was the first vehicle in my lane to stop at the line. 36.The light was still a green circle and with no arrow and after stopping for about 10 to 15 seconds and giving way to a few oncoming vehicles, I saw a break in the traffic so I slowly proceeded forward onto the intersection but I stayed within my lane with my wheels straight and I didn't commence my turn at that time. I proceeded out onto the centre of the intersection and came to a stop. 37.Just before the lights changed colour, I saw a car travelling south on Balmoral Street come over the hill north of the intersection and it proceeded across the intersection in lane 2 of 2. I remain stationary and gave way for that car to stop the cross the intersection. 38.Almost immediately after the first car crossed the intersection the lights then changed from green to amber. I waited another several seconds and I saw another car travelling south in lane 2 of 2 on Balmoral Street stop at the line before the intersection. 39.I don't recall seeing the Claimant's vehicle approaching before entering the intersection. I checked for oncoming traffic after the car stopped in lane 2 of 2 and it looked clear. The lights changed to red and then I proceeded to make a right turn. 40.I commended (sic) the turn and travelled about one metre and then I first saw the other car. I first saw it just as it crossed the line and entered the intersection and it was travelling southbound lane 1 of 2 on Balmoral Street. It was only a few metres from me when I first saw it. I applied the brakes immediately, but it was too late. The Claimant's car was travelling close to the speed limit and he entered the intersection sometime after the lights had changed to red. 41.The Claimant never had time to take evasive action. The whole driver side of the Claimant's car and driver door impacted into the front driver side corner on my truck…"

An evidentiary debate

1. To repeat, within Exhibit 4 (tendered by the defendant) was a long record of interview (43 pages) between the investigator and Senior Constable Aimee Lennard, on 18 August 2020. Part of this record of interview featured the OIC divulging unredacted content of versions of statements by police given by Dorina Pinter (Q & A 114-127) and Atilla Gall (Q & A 128-132). Neither of those persons were called to give evidence.
2. The parts of the OIC's report of what these witnesses had said in their police statements which the defendant relied upon were: 1. at A123, Dorina Pinter stated to police: "The blue car continued to drive straight into the intersection. The light was red for about three to five seconds before the car crossed the intersection.." 2. at A132, Attila Gall stated to police: "About fifteen to twenty metres from the intersection the lights turned red. About two or three seconds later, I saw the blue car cross the line into the intersection. At the (sic) exact time, I saw the truck start to make the turn passing the first lane."
3. It will be recalled that redacted versions of what these witnesses had said were produced in response to a request under the GIPA (Exhibit T) tendered by the plaintiff. I reproduced parts of what these witnesses had said, from the redacted versions of their statements, earlier in these Reasons.
4. This gave rise to a late evidentiary controversy. In his closing written submissions, Senior Counsel for the defendant referred to statements made, respectively, by Dorina Pinter and Atilla Gall which the OIC had indicated to the investigator in her interview on 18 August 2020.
5. Counsel for the plaintiff did not object to the tender of Exhibit 4, nor sought to place a limitation upon what was contained. But after reading Senior Counsel's closing written submissions, which referred to statements made by the lay witnesses Pinter and Gall, he applied for the Court to exclude them. The plaintiff's Counsel submitted that, before the hearing, the plaintiff had served a s 67 Evidence Act notice and, reasonably, did not expect the defendant to rely upon unredacted versions of what the witnesses said; but instead only expected the redacted parts of their statements to be in evidence (which the plaintiff's Counsel himself tendered).
6. Since s 67 was not complied with, the plaintiff's argument ran, to the extent that the defendant relied upon what Ms Pinter and Mr Gall had said for hearsay purposes, their evidence should have been excluded under s 64(2), unless an exception to the hearsay rule arose. It was further argued that the business record exception under s 69 was not applicable since the evidence given by the OIC to the investigator of what the witnesses had said in August 2020 was evidence that fell within s 69(3)(a) of the Evidence Act.
7. Senior Counsel for the defendant did not dispute what was said about the s 67 notice or the problem regarding s 69(3). His first point was that Exhibit 4, which contained the impugned statements, was admitted in evidence without the plaintiff having objected to it: it was too late now for the plaintiff to apply for their exclusion. The defendant's second point was that had the objection now taken by the plaintiff been raised earlier than closing submissions, any difficulty could have been cured through the defendant issuing a subpoena to police to produce the unredacted version of the statements to police, which, almost certainly, would have produced an identical situation to what is contained within the relevant part of Exhibit 4; and that objections had been notified between the parties prior to the hearing. If the objection had been taken earlier, the defendant could, if necessary, have applied for an adjournment to have the subpoena issued and the unredacted version of the police statements produced.
8. Counsel for the plaintiff did not dispute the effect of the defendant's submission that if time had been spent to enable a subpoena to be issued to compel police to produce unredacted versions, even at the expense of an adjournment, it was inevitable that documents would be produced which were no different to those conveyed by the OIC in her interview with the investigator in August 2020.
9. In my opinion, the defendant should be permitted to rely upon the report of what the witnesses said to the OIC; and which the OIC conveyed to the investigator in August 2020. First, whatever was said in the s 67 notice, the plaintiff was clearly on notice of the defendant's intention to rely upon the contents of Exhibit 4: that was apparent through the process of the compilation of the Joint Court Book; which involved the parties' mutual co-operation. A cursory observation of that document would have indicated that the OIC's record of interview contained full, unredacted versions of police statements from a range of witnesses; and not simply Mr Clement; but others with no particular interest in the litigation. It is also apparent (from its written submissions) that the plaintiff was well able to identify from the versions of the statements produced under the GIPA legislation from other evidence, including that contained within Exhibit 4. Through the absence of objection taken to Exhibit 4 on the first day of the hearing (if not earlier when the parties had informally exchanged objections), the plaintiff led the defendant to believe that evidence attributed to the eyewitnesses by the OIC, though hearsay in nature, may be treated as evidence of the facts stated and the defendant, in reliance upon such belief, refrained from applying for an adjournment to enable proper proof. In such circumstances, it has been suggested that the plaintiff should be precluded from objecting to the use of the evidence to prove the facts stated: J D Heydon (ed) Cross on Evidence (electronic version, LexisNexis) [1660] and the authorities cited in footnote 1.
10. Alternatively, in my view, the circumstance that the plaintiff's Counsel did not dispute Senior Counsel for the defendant's point that what the police would likely have produced on subpoena was unlikely to be any different to that which appears in Exhibit 4 suggests that the accuracy of the content of what the OIC conveyed to the investigator about what the witnesses had said was not seriously in dispute. Alternatively, the invocation of the exclusionary hearsay rule, which would necessitate an adjournment to procure the documents from police in another way, would cause or involve unnecessary expense or delay; such that s 64(2) should be waived: Evidence Act 1995 (NSW), s 190(3)(a) and/or (b). In reaching that conclusion, I take into account the matters in s 190(4). The evidence is important to assist the defendant's case insofar as it provides the estimation of two independent witnesses of the colour of the traffic lights at the intersection which the plaintiff had passed through. There is a strong public interest in avoiding further delay of the proceeding, having regard to the nature of the plaintiff's injuries and the date when the accident occurred; especially where it is not suggested that there is a real or substantial prospect that what would be produced on subpoena is different to what is already in evidence.
11. The plaintiff's objection to this evidence is accordingly rejected.

Mr Keramidas' report (Exhibit 8)

1. This was belatedly tendered by Senior Counsel for the defendant during closing submissions. He did not refer to its content in written or oral submissions, other than making the observation that the expert evidence generally was of limited use (and submitting that liability came down to the evidence of (lay) witnesses). In circumstances where I made it plain during the hearing that Counsel could not assume I would have regard to evidence not specifically the subject of submission, I do not need to summarise the content of this report.

The joint expert report (Exhibit V)

1. On 8 August 2022, Mr Johnston and an accident reconstruction expert for the defendant, Mr Keramidas, engaged in an expert conclave and produced a joint report.
2. Neither party's Counsel placed a great deal of emphasis upon this report, given the critical liability issue identified by both Counsel. Senior Counsel for the defendant wrote in his written submissions that expert evidence was of limited use and the liability issues fell to be determined by the evidence from the witnesses and the inferences drawn from their evidence. There was a substantial measure of consensus between the experts on other matters, including the following:

• the most probable speed that the plaintiff was travelling on his approach to the intersection was 60km/h;
• the range of speeds of the defendant's vehicle was likely to be 9 - 14 km/h;
• the speed of the defendant's vehicle depended on an assessment of the place where he commenced to make his right hand turn. If it was closer to the stop line at Reservoir Road and its acceleration low, the speed was likely to be 9-13 km/h and timing 3.6 to 5.1 seconds. But if the truck stopped in the middle of the intersection, and his acceleration was higher, than the speed range was 11-14 km/h and timing was 2.6 to 3.2 seconds;
• the experts agreed as to the phasing of the traffic signals (apparent in Exhibit 1);
• other than through an assessment of lay witnesses, there was no objective evidence (e.g. CCTV footage) to identify the exact phasing of the lights; however, the experts generally agreed that shortly before the accident, the lights were transitioning from Phase E to Phase F (thereby permitting the insured to turn right from Reservoir Road into Bungarribee Road);
• the experts agreed that the front off-side corner of the truck impacted with the off-side of the plaintiff's vehicle; incorporating, also, the front off-side guard, front off-side wheel and the driver's door;
• the experts agreed that the plaintiff had a generally clear 'sightline' on approaching the intersection;
• the experts agreed that given the elevated position of the defendant in the truck, and assuming that there were no tall vehicles between his position and the plaintiff's vehicle (about which they agreed there was no evidence) the defendant would have had a clear view of the plaintiff's approaching vehicle;
• whether the truck may have been difficult for the plaintiff to detect depended upon a view as to its initial starting point. If the truck commenced to turn from the middle of the intersection, assuming it was visible to the plaintiff, it should have been detectable;
• the experts agreed on applicable Australian Road Rules (which they daily examine) to the plaintiff's driving as being ARR 57 and 56, and for the defendant's driving, as being ARR 61-62. To take two examples:
• a driver approaching a red traffic light must stop as near as practicable to, but before reaching the stop line;
• a driver turning at an intersection with traffic lights is required to give way to oncoming vehicles.

1. The experts also agreed that the collision was avoidable by the defendant applying the brakes in the truck, provided there was sufficient time to perceive and react to the approach of the plaintiff's vehicle. But thereafter the experts diverged.
2. Mr Keramidas considered that unless the defendant detected an imminent collision within 0.5 to 1.0 seconds of his (re)commencing to turn, he did not have sufficient time. Mr Johnston believed that 1.6 seconds would have been sufficient time to have detected that the plaintiff was not going to stop at the intersection and that he could have brought his truck to a halt.
3. The experts further explained that their disagreement arose from differing perspectives of the capabilities and expectations of a driver in the defendant's circumstances, as outlined in their reports.

The plaintiff's submissions

1. Counsel for the plaintiff argued that there was a material inconsistency between what Ms Littlejohn told police on 24 December 2017 (Exhibit D) and what she told the Court. She told police that she was not sure what colour the traffic light was at the time that the plaintiff's vehicle entered into the insertion (as she "was not looking at the lights"). She said in Court that she "felt" that the traffic light had turned red at the time the plaintiff drove into the intersection.
2. Another inconsistency suggested by the plaintiff was that Ms Littlejohn told police that the blue car collided with the front of the truck and appeared to go slightly under the front of the truck; whereas at trial she said that the front of the blue car drove into the side of the cabin of the insured vehicle. This evidence was said to be controverted by the substantial damage to the driver's side of the plaintiff's vehicle; and the absence of frontal damage to the vehicle.
3. The plaintiff argued that the inconsistency should be resolved by the Court preferring the evidence Ms Littlejohn gave to police, in this material respect, since her memory of what occurred was fresh and more likely accurate than what she told the Court.
4. Further, the plaintiff argued that Ms Littlejohn's evidence was not conclusive of any finding that the plaintiff drove through a red light. She had observed the lights to be amber (orange) when the white car drove past her and described the plaintiff's vehicle as following within a single car length, or slightly more. It remained possible that the plaintiff's vehicle entered the intersection whilst the traffic light remained amber.
5. Putting to one side, for the moment, Ms Littlejohn's evidence, the plaintiff submitted that the evidence of the other lay witnesses, in statements that they made to police (produced on the GIPA application), provided some assistance. Most importantly, the plaintiff argued, none of them supported the defendant's contention that the plaintiff drove through a red light.
6. The plaintiff referred to the evidence of Attila Gull and Dorina Pinter, the couple who were driving south down Balmoral Street, about 30-40 metres behind the plaintiff's vehicle, which was commonly to the effect that when they were 30-40 metres from the intersection, the lights changed from green to orange. Mr Gull also estimated that the plaintiff was travelling at the same speed. If these two pieces of evidence were accepted, the plaintiff argued, it necessarily followed that the plaintiff's blue car (ahead of Gull and Pinter by 30-40 metres and driving at the same speed of 30km/h) was at or about the intersection when the green lights turned to orange.
7. Ms Pinter told police that her and her partner's vehicle was about 15-20 metres from the intersection when the traffic light turned red and that the plaintiff's vehicle was still going at the same speed. The plaintiff argued that by then, the plaintiff's vehicle had already entered the intersection.
8. The evidence of Mr Gull and Ms Pinter was consistent with the plaintiff entering the intersection on the amber light.
9. The plaintiff's Counsel referred to the police statements by two other witnesses, who were driving along Bungarribee Street from different directions. The plaintiff referred to Dominic Ginnone's evidence and argued that it supported the inference that the traffic lights for the plaintiff had not turned to red, for very long at all, prior to the collision. Counsel referred to Peter Bartolo's evidence and argued that it also supported the inference that the lights for north-south traffic on Balmoral Street had not turned red for very long at all, at the time of the collision. Both Ginnone and Bartolo gave evidence that they faced red lights at the time of the accident and this was consistent with the plaintiff entering the intersection either on an amber light or, possibly, only just entering into the intersection as the light changed to red.
10. The plaintiff's Counsel noted that the defendant was not called to give evidence. The plaintiff's Counsel argued that this forensic decision was made in the face of conflicting statements that Mr Clement had given about the accident to police in his record of interview (on 23 December 2017) and the Procare investigator (on 25 August 2020). It was said that in the version given to police, Mr Clement was conveying that he saw the plaintiff's vehicle approaching and not slowing down, yet proceeded to turn across the plaintiff's (inevitable) path of travel, assuming that the plaintiff would stop. (He also said that he did not think that the plaintiff was speeding). But in his statement to the investigator, he conveyed that he had already commenced to make the turn before he saw the plaintiff's vehicle, only a few metres away. He said that he thought that the plaintiff's vehicle was travelling close to the speed limit and entered into the intersection after the light had turned red.
11. The plaintiff argued that given the inconsistencies, Mr Clement's election not to give evidence meant that little weight should be given to his evidence generally, even the more contemporaneous account he had given to police.
12. On the significance to be ascribed to the joint expert report the joint report remained useful for summarising the relevant issues.
13. Ultimately, Counsel for the plaintiff accepted that it was open to the Court to find that he entered the intersection 'late'. That would justify a finding of contributory negligence.

The defendant's submissions

1. In his closing written submissions, Senior Counsel for the defendant addressed the issue of the colour of the lights facing the plaintiff. First, with reference to the traffic light phasing, the defendant argued that if the defendant was looking at a red light, the plaintiff, travelling south down Balmoral Street, would also have had a red light.
2. Secondly, he relied upon Ms Littlejohn's evidence. Ms Littlejohn was the only witness to give oral evidence about the accident, and she was called by the plaintiff. Ms Littlejohn gave evidence that when the plaintiff entered into the intersection, the lights facing her, and the plaintiff, were red. Although she had told police that she was not sure of the colour of the light when the plaintiff entered the intersection, she said it was red when she gave her evidence in Court, on oath. She did not equivocate.
3. The defendant acknowledged that her evidence in Court occurred well after the incident, but indicated that confidence could still be placed in the evidence: Ms Littlejohn was a retired school principal and a very reputable member of the community. (I would add that she presented well as a witness, in terms of her demeanour). Her evidence in Court, in that particular respect, the defendant argued, was consistent with other statements she made to the police. She had estimated that the white car (travelling ahead of the plaintiff's vehicle) went through an orange light, 2 or 3 seconds after it had turned orange, and she thought it was very late for the white car to have entered the intersection. With her vehicle in a stationary position, Ms Littlejohn saw the defendant's truck also stationary and then, within a couple of seconds, observed that it had commenced to make its turn and reach the point where it had passed through her lane and into the start of the lane through which the white car (and then the plaintiff's car) was travelling. It was when she saw that the truck had reached this point that she saw the plaintiff's vehicle drive past her left side.
4. The defendant argued that the lights had been red for 2-3 seconds, then the truck passed into her lane when the collision occurred. Mr Johnston, the plaintiff's liability expert estimated that it would have taken the defendant between 3.6 to 5.1 seconds to move from its stationary position in the intersection to the point of impact (POI). That being so, the lights were red for between 5.6 seconds and 8.1 seconds before the collision. If, as Mr Johnson had estimated, it took 0.7 to 0.9 seconds for the plaintiff's vehicle to travel the 12 metre distance from the holding line to the POI, the lights had changed to red between 4.7 and 7.4 seconds before he had entered the intersection.
5. Given that the light phasing time for 'E' phase was a minimum 4 seconds, more than 4 seconds had passed between when Ms Littlejohn saw the lights turn red and when the plaintiff entered the intersection.
6. Although Mr Clement was not called, two accounts of out of court statements by him were in evidence: one tendered by the plaintiff (Exhibit W); the other in an investigation report tendered by the defendant (Exhibit 4). In the former, Mr Clement said that by the time the white car went past him, the lights had changed red (A9). In the latter, Mr Clement had also asserted that the plaintiff had entered the intersection sometime after the lights had changed to red (paragraph 40 of statement of 25 August 2020). Mr Clement told police that he completed the turn, after his vehicle had been in the middle of the intersection, on a red arrow (A52) after two or three seconds. The defendant argued that this would indicate that the lights for the plaintiff were also red. Mr Clement said that although he saw the plaintiff's vehicle, clearly enough to form a view that the plaintiff's vehicle was not speeding, he assumed that it was going to stop (A62), an assumption influenced by the circumstance that Ms Littlejohn's vehicle, in the centre lane, had stopped.
7. Senior Counsel for the defendant submitted that the defendant's vehicle was in the intersection, about to make a right turn and only stopped because the white car came past him.
8. Senior Counsel for the defendant argued that the other statements, of Atilla Gall and his wife, Dorina Pinter, did not support the plaintiff's case. These were the statements I referred to earlier in connection with evidentiary debate. Atilla Gall estimated that the blue vehicle passed through the intersection 2 or 3 seconds after the light had turned red. Ms Pinter estimated that the light was red for 3 to 5 seconds before the plaintiff's vehicle had passed through the intersection.
9. The defendant argued that all of the evidence indicated that the plaintiff entered the intersection on a red light and, probably, some seconds after it had turned red. Although the defendant saw him, he did not consider that the plaintiff was speeding (which, if that had occurred, might have alerted him to the possibility the plaintiff may not stop) and assumed the plaintiff would in fact stop at the intersection; a viewpoint influenced by seeing that Ms Littlejohn (travelling in the same direction and who could also only drive through to Reservoir Road) had stopped. Accordingly he moved to complete the turn. In doing so, he was entitled to turn his sights to what appeared on Bungarribee Road. This included, for example, pedestrians who may have been crossing north-south, or south-north, along that road. This, as Mr Johnston said, the defendant had an obligation to do, even on a red signal, when he believed it was safe to do so. Otherwise he would have obstructed traffic in Bungarribee Road.
10. Senior Counsel for the defendant submitted that, objectively, Mr Clement did no wrong. He believed, reasonably enough, that the plaintiff's vehicle would come to a stop. But acknowledging that, at some point, it would have likely become more obvious that the plaintiff would not stop, he could not be criticised for not keeping his eye on the plaintiff's vehicle. If he had done so, he might have risked taking his eye off traffic (or pedestrians crossing) on Bungarribee Road. He was entitled to keep his eye on the direction that he was going. He could not be expected to keep an eye on the direction he was travelling whilst continuing to keep any eye on traffic from the direction that the plaintiff was travelling in.

Plaintiff's submissions in reply

1. In his closing oral argument, Counsel for the plaintiff submitted that the defendant's Senior Counsel had selectively referred to only one of the defendant's (out of court) accounts; when there was inconsistency with another. In one of his accounts, he said he did not see the plaintiff when in the other he said he did.
2. The plaintiff's Counsel eschewed any submission that a Jones v Dunkel inference could be drawn from the circumstance that Mr Clement did not give evidence, but emphasised that it was unsatisfactory that the suggested inconsistency was not resolved by him being called.
3. The plaintiff submitted that the case on liability should not be resolved by an excessively refined examination of the precise timing when the lights facing the plaintiff had changed. What was pivotal was to consider the defendant's conduct in the circumstances he was faced with. The plaintiff submitted that the Court should not place excessive weight upon the circumstance that Ms Littlejohn had slowed, when she saw the orange light, to a stop. Being a relatively (with no disrespect) elderly woman, conceivably she might be a cautious a driver; and as I inferred Counsel to submit, less inclined to proceed through an orange light on a busy intersection. This might explain the attitude that she expressed to police that the white car which had passed on her inside was going through the intersection very late. But the white car had passed through without incident. More importantly, she was consistent in her evidence of what she said to police and what she said to the Court, that the plaintiff's vehicle was about a car length's gap from the white car. (I pause here to observe that according to my note, Ms Littlejohn was not cross-examined on this last piece of evidence).
4. Given that Mr Clement had an elevated and unrestricted view of the plaintiff's vehicle, the plaintiff submitted that I should find that he did see the plaintiff's vehicle moving, with no obvious sign that it was preparing to stop, at the time that he elected to make his right hand turn.
5. Viewed in this way, the plaintiff's Counsel submitted that whether the plaintiff's vehicle had started to pass through the stop line and into the intersection and through an orange light just as it was about to turn red, or he passed through the line just as it became a red light did not really matter, when considering the defendant's conduct: the defendant's obligation was to make a right hand turn safely. For him to have formed the assumption that he did was not reasonable. Moreover, the momentous nature of the decision to complete the turn was, or should have been, apparent to him given that once it was taken, it was likely to have been too late to stop to avoid the collision.
6. The plaintiff's Counsel, in his oral submissions, in apparent answer to the defendant's reliance upon the evidence of Gall and Pinter, repeated the reference in his written submissions to the evidence of other lay witnesses: Bartolo and Ginnone. This was to the effect that they (travelling east or west along Bungarribee Road) faced a red light and it only turned green after the accident. This must have meant that the light facing the plaintiff was not red at the time he initially passed through the intersection.

Relevant principles on liability

1. In Marien v Gardiner [2013] NSWCA 396, Meagher JA (Macfarlan and Emmett JJA agreeing) said (omitting citations): "33The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one…. 34The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users... A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). 35Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident…. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". 36The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. 37Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path:…. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision." (emphasis supplied)
2. That statement of principles was applied in the Court of Appeal later in Warth v Lafsky [2014] NSWCA 94 ("Warth") and Boateng v Dharamdas (2016) 77 MVR 151; [2016] NSWCA 183 ("Boateng") per Gleeson JA (Leeming JA and Davies J agreeing) at [74]-[76]. In Boateng, Gleeson JA also affirmed (at [78]) earlier authority to the effect that motorists should exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections.
3. Earlier in Warth, McColl JA also observed (at [55]) that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines. Although that observation was directed to a motorist's duty to a pedestrian, a similar sentiment should apply to other motorists. Further, as the High Court said in Sibley v Kais (1967) 118 CLR 424, "the failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations". In Grant v Sun Shipping Co Ltd [1948] AC 549 du Parcq LJ said (at 247) that: "A prudent man will guard against the possible negligence of others when experience shows such negligence to be common".
4. In Ayre v Swan [2019] NSWCA 202 at [60], McCallum JA said (Macfarlan JA agreeing; Basten JA dissenting in the outcome), in another case concerning a collision arising when a vehicle tried to make a right turn across oncoming traffic, that the defendant (though in slightly different factual circumstances) owed a duty of care not to turn across the traffic until it was safe to do so.
5. Notwithstanding the guidance afforded by these principles, the question of the defendant's liability remains to be determined with reference to the factual circumstances raised by ss 5B and 5C of the Civil Liability Act 2002 (NSW).

Consideration of whether the defendant breached his duty of care

1. Most of the argument centred around whether or not the plaintiff drove through a red light. But as Counsel for the plaintiff correctly argued in his submissions in reply, the proper focus is upon the defendant's conduct in the circumstances he was faced with, which of course, included his perception of the plaintiff's vehicle. As was pointed out in Manley, when deciding whether to make his right hand turn, Mr Clement had to be astute to obstacles currently and which may be in his path.
2. Before I proceed further with the analysis, I accept that there was some inconsistency between what Mr Clement told police and what appears to have been his written statement to the investigator. In circumstances where the defendant was not called, although it may not be appropriate to draw a Jones v Dunkel inference against him, there is no obligation on the Court to accept an account most favourable to the defendant either. Further, I would be generally inclined, when treating with the defendant's out of court statement evidence, to prefer his account to police on 23 December 2017 rather than the statement he signed for the insurer's investigator on 25 August 2020; the latter being prepared apparently with the assistance of an investigator engaged by the insurer with whom Mr Clement had a relationship, in contemplation of litigation.
3. Thus, I find that, contrary to what Mr Clement told the investigator, he did see the plaintiff's vehicle even before the plaintiff's vehicle had proceeded through the intersection. This finding, I note, is consistent with the agreed position of the experts and, I note, also fitted in with Senior Counsel's case theory that Mr Clement was entitled to assume that the plaintiff would not proceed through the intersection. Further, because of his elevated position in the cabin of the truck, he saw or should have seen the plaintiff's vehicle travelling into the intersection not long after the white vehicle.
4. The resolution of this inconsistency, which I regard as being material, in my assessment of his position, in my view calls into question either the credibility or reliability of Mr Clement's evidence generally, which is a not insignificant matter when the Court is asked to consider why he acted as he did in making the right hand turn (even though the ultimate inquiry, on whether he was in breach, is what the hypothetically reasonable motorist in his position would do).
5. Further, and again contrary to the defendant's position, I accept Ms Littlejohn's evidence that the plaintiff's vehicle was only driving about one car length's distance behind the white vehicle. She was consistent in her expression of that evidence, to the police and in Court. There was no evidence referred to of the other eyewitnesses, or as I understood the position, physical evidence, to controvert her evidence. I think it roughly derives some further support from Mr Johnston's opinion, itself supported by photos (in page 9 of the joint report) depicting the point of impact, that the plaintiff's vehicle was already well into the intersection at the time that the defendant's vehicle collided with it.
6. From his elevated position, in the cabin of his truck, not only did the defendant have an unrestricted view of traffic headed south from Balmoral Street into Reservoir Road, but given its proximity with the white car, Mr Clement was in a position to see and likely did see, that the distance between the white car and blue car was not very significant.
7. Mr Clement appropriately refrained from proceeding to make a right turn because of the white car. The presence of the white car and his decision to let it pass, to adopt what Gleeson JA said in Boateng, were matters which showed that, to that point, Mr Clement was exercising a "high degree of vigilance". I do not understand why, in the circumstances, given the unrestricted view he had, and conscious as he was, or should have been, of the plaintiff's vehicle not far behind the white vehicle, he should not have remained in a high degree of vigilance about southbound traffic proceeding through the intersection towards Reservoir Road. This was so even after the white vehicle had passed through the intersection.
8. The circumstance that Ms Littlejohn had slowed, to the point of stopping, at the light does not assist Mr Clement as much as it may appear. According to her, she had already stopped earlier by the time the white car had gone past her. Appropriately, Mr Clement did not reason from that particular circumstance to a view that he could make the turn ahead of the white car. Rather, he properly exercised care and delayed making his turn until the white car had driven past him.
9. Plainly, it was a riskier course for the blue vehicle to try to pass through than it was for the white vehicle: at a busy intersection, every second that it took for the blue vehicle to pass through after the white vehicle had passed through counted.
10. It is necessary, for analysis of s 5B(1), to identify the risk of harm. There are degrees of generality about this question. At its most general, there was a risk of collision with oncoming traffic, travelling south along Balmoral Street, when the defendant turned right across the path of traffic. But in the circumstances, the more specific risk was whether there was a risk of his vehicle colliding with another vehicle travelling south along Balmoral Street and proceeding through the intersection close to or at the point when the traffic signal facing it was transitioning, or had just transitioned, from orange to red, when he turned right across the path of that traffic.
11. In the circumstances so described, that risk was both foreseeable and not insignificant. This was so even if an oncoming driver, from the plaintiff's direction, did not comply with the Road Rule (56) by not actually stopping at the red light. The defendant's vehicle, being in the middle of the intersection, was very close to the plaintiff's vehicle if, contrary to his expectation or assumption, the plaintiff decided to drive through the intersection. To mix a metaphor, there was a 'grey zone' in which motorists from the plaintiff's direction, travelling south along Balmoral Street might think they could proceed through an orange light before it turned red, but might make a misjudgement in the process. The white car had only just exercised that same judgment, and it had gotten through. The blue car was not very far behind it. Given, in particular, the position of the blue vehicle vis-a-vis the white vehicle, the risk was not insignificant.
12. The critical question, raised by s 5B(1)(c), is what was a reasonable response, in the circumstances facing Mr Clement, to the risk so created? I remind myself that, when considering this question, the inquiry is prospective; not retrospective (i.e. undertaken with the benefit of hindsight).
13. The defendant's Senior Counsel argued that Mr Clement's state of mind was shaped by observing that the plaintiff was not speeding and that he reasoned from that prediction to an assumption, which he believed he did not need to verify, that the plaintiff was going to stop. In my view, if that was his thinking, it was astray. If, as Mr Clement said, he did not observe the plaintiff's vehicle speeding, he did not state that he observed anything to suggest that the plaintiff was going to stop his vehicle either. Having seen the white car go through an orange light (without obvious signs of speeding), and having regard to the close proximity of the blue vehicle to the white vehicle, a reasonable motorist, in his position, should have considered the possibility that the blue vehicle, perhaps guided by the virtually contemporaneous example of the white vehicle, would similarly try to pass through the intersection. I do not consider that it was reasonable, having seen what the white car had done, for Mr Clement to blithely turn his eyes eastward, down Bungarribee Road and discount the possibility that the blue car would not emulate the white car and try to get through the intersection.
14. It was revealing that Mr Clement told police that, at the operative time, when he was in the middle of the intersection and was contemplating making the right hand turn, he felt that he was in 'no man's land': that he believed that he was committed to making the right hand turn. This was after he recognised that the arrow for cars proceeding down Reservoir Road, where he had come from, had turned red. This was amplified in his Senior Counsel's submission that Mr Clement would have been entitled to be concerned about causing obstruction to traffic had he remained perched, as it were, in the middle of the intersection. With that state of mind, it was suggested that it was inevitable that he would focus his sights in an entirely eastern direction, at the intersection, on any pedestrians or any other vehicles that might block his capacity to complete the right hand turn.
15. These may have been his subjective beliefs, but his obligation, reflected in the Road Rule, was to only make the right hand turn in circumstances where he could safely do so. His obligation, reflected in a Road Rule (62) which was also consistent with almost universal understanding, was to satisfy himself that in turning right, he would not collide with vehicles travelling south, down Balmoral Street.
16. I accept that a reasonable motorist in his position might expect that cars travelling south along Balmoral Street would obey the Road Rule which would see them stop at the red light. But as Basten JA acknowledged, in his dissent in Ayre v Swan (at [53]), motorists must expect that not everyone will comply "with the letter of the road rules". It is, alas, not uncommon for cars approaching an intersection to travel through what they may perceive is an orange light but is, in actuality, a red light, in order to get through the intersection. This is not to say that it is proper for such cars to do so. Clearly it is not. It is also acknowledged that the position of the white car was distinct from the blue car: being ahead of the blue vehicle, if not by much distance, it still had a greater prospect of getting through the intersection than the blue vehicle. (No one suggested that the white car had passed through a red light). But having regard to the narrowness of the distance between the white vehicle and the blue vehicle behind it, and the absence of any indication that the blue vehicle was slowing down, the risk of the blue vehicle trying to pass through was not so remote or insubstantial that Mr Clement could disregard it and put it out of his mind as he commenced to turn. Mr Clement was required, to adopt the language of the High Court in Manley v Alexander, to turn his attention to a feature on the road that "may" come to affect his passage. He did not do so. He merely assumed that the feature would not eventuate; and he did not verify the assumption by checking that the blue car had actually stopped and he saw no signs of it slowing down.
17. Having regard to the vehicle he was driving, the risk that serious harm would occur to the driver of the blue vehicle if, because of an absence of care on Mr Clement's part, the truck collided with the blue vehicle, was very high. The likely seriousness of harm to the occupant of the blue vehicle was, in the event of being struck by the truck, extreme; to the point of the harm being likely catastrophic given the size and weight of his truck.
18. There was, at some level, a burden to Mr Clement if he refrained from making the turn. His truck would have been stuck in 'no-man's land'. It would have caused obstruction of what appeared to be a busy intersection and probably generated angst among the motorists so obstructed. However, in my view, that burden paled into almost total insignificance in comparison to the harm to the driver of the blue vehicle (and potentially other motorists) if, by proceeding with an ill-judged turn, the truck struck the plaintiff's vehicle.
19. The reasonable precautions that Mr Clement was required to take was to satisfy himself that he could safely complete his right hand turn without colliding with traffic from Balmoral Street. That mental assessment was anterior, and not subordinated, to his decision whether he could deal with any actual or potential obstacle (pedestrian or vehicle) in Bungarribee Road. The circumstance that the plaintiff acted unreasonably in attempting, and failing to proceed through Balmoral Street into Reservoir Road before the traffic signal turned red, did not justify Mr Clement completing his right turn without satisfying himself, rather than just assuming, that he could safely do so.
20. I do not consider that the matters raised in s 5C alters the view that I have taken in relation to s 5B.
21. In the circumstances, I find that the plaintiff has established that Mr Clement was in breach of his duty, in colloquial terms, by failing to keep a proper lookout when attempting to turn his truck.

causation

1. As indicated, the defendant took no point about causation not being satisfied if, as I have found, the defendant was in breach.

The particulars of the defence

1. Particulars of this defence were that the plaintiff: 1. entered the intersection against a red traffic light in contravention of the Road Rules; 2. failed to heed the presence of the insured vehicle's within the intersection; 3. failed to approach and enter the intersection safely and at a speed that would have allowed him to avoid colliding with a turning vehicle; 4. failed to heed the visual cues available to him of other vehicles slowing or stopped in adjacent lanes.

Statutory provisions and principles

1. In Boateng, Gleeson JA said, at [113]: "Section 5R of the Civil Liability Act provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury. The reference to "harm" includes personal injury: Civil Liability Act, s 5. A person is not negligent in failing to take precautions against a risk of harm unless that risk was foreseeable, not insignificant and, in the circumstances, not one against which a reasonable person in the person's position would have taken precautions: s 5B(1)".
2. A finding of 100% contributory negligence could be made: s 5S.
3. It is well-established that by the apportionment legislation comparison is made between the respective degrees by which the conduct of the plaintiff and defendant diverged from the standard of care of a reasonable person and the relative importance of the conduct in causing the damage [1] .
4. Senior Counsel for the defendant referred to s.4.17(1) of the Motor Accidents Injuries Act, which partly reflected the common law and 'enacted law', including ss 5R and 5S of the Civil Liability Act (and also ss 9 and 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)). By s.4.17(3), where contributory negligence is found, the reduction should be of such percentage as to reflect the justice and equity of the case. It was not suggested by the defendant that any of the circumstances in s.4.17(2) were applicable.

The parties' submissions

1. The written and oral submissions of the parties on this (discrete) topic were brief. This was a result of the dominant focus which the parties placed on the question whether the plaintiff drove through a red light when considering the question of whether the defendant was in breach of his duty.

The defendant's submissions

1. The defendant argued that any responsibility of the defendant could only be said to be a very small part of the reason for why the accident occurred. The predominant reason was that the plaintiff failed to give way at a red light which had been red for some seconds before he entered the intersection. If there was any fault in the insured, it was in assuming that the plaintiff would abide by Road Rules and stop at the intersection.
2. The defendant submitted that it did not matter that the vehicle the insured was driving was much more damaging, in any potential collision, relative to the size of the plaintiff's vehicle. Given the speed at which the vehicles were travelling, it would not have mattered.
3. The defendant submitted that contributory negligence of no less than 80% would be appropriate.

The plaintiff's submissions

1. I previously summarised the plaintiff's submissions on the question of whether the plaintiff entered into the intersection against a red light, and the plaintiff's Counsel's concession that it was open for the Court to find that he drove into the intersection "late". Nevertheless, with reference to Mr Johnston's evidence, it was submitted that the Court should find that the plaintiff had observed the late lateral movement of the truck; so it could not be said that he had not heeded the presence of the defendant vehicle. In closing oral submissions, Counsel emphasised that the plaintiff's vehicle was only about a single car's distance from the white car which had successfully passed through the intersection.
2. Balancing the respective culpability of the parties, the plaintiff submitted that the dominating factor causing the collision was the defendant's decision to turn his 6.4 tonne truck across the path of the plaintiff's vehicle.
3. Comparing the defendant's failure to keep a proper lookout and failure to give way against the plaintiff's late entry into the intersection, Counsel for the plaintiff submitted that a finding of no greater than 25% of contributory negligence should be made.

Was the plaintiff guilty of contributory negligence?

1. The first question is whether the plaintiff was in fact guilty of contributory negligence. If so, the second question is how liability should be apportioned as between the plaintiff and defendant.
2. As the plaintiff's Counsel anticipated or conceded in his Opening, I find that there was contributory negligence. I find that, on the probabilities, the plaintiff drove through the intersection when the light was red; if only just. Although this was not the conclusion of all the lay witnesses, there was a preponderance of evidence to this effect. I place particular weight on Ms Littlejohn's evidence, given on oath. Although it is true that she was more emphatic on the matter when she gave evidence in Court than she was when she spoke to police, her evidence accorded with other evidence. This included the evidence of the witnesses Gall and Pinter. These were the witnesses who were best placed to see the condition of the light as the plaintiff passed through it. Other witnesses were relying upon what they surmised.
3. Further, in this respect, I accept the evidence of Mr Clement that it was still a period of seconds, between the time he moved from his stationary position in the intersection to completing his right hand turn, and when the right hand arrow had turned red; which, because of the phasing, would have meant that the light through which the plaintiff passed had also turned red.
4. The circumstance that the plaintiff infringed a Road Rule may not be conclusive of breach, but this rule was fundamental. The risk of the plaintiff colliding with traffic travelling east or west along Bungarribee Road, or a vehicle, like the defendant's truck, making a right turn from Reservoir Road into Bungarribee Road, by proceeding just through a red light, was not only foreseeable but also not insignificant. In my view, it is likely that the plaintiff saw the white car pass through an orange light. The reasonable driver in the plaintiff's position would have appreciated that there was still some distance between his vehicle and the white vehicle; and should not have assumed that because the white vehicle could safely proceed through to Reservoir Road on an amber light, he could as well. The reasonable motorist in the plaintiff's position would have been aware that if he did not exercise care there was a very high, almost to the point of inevitable, risk of collision and, because of the normal speed - not reduced speed - at which he was travelling, the plaintiff's vehicle could be involved in a significant collision with other cars - not just the defendant's vehicle - in a busy intersection. Instead, the plaintiff preferred his own perceived interests of getting through the intersection in a hurry.
5. Because the inquiry is 'impersonal and objective', it does not affect - and the plaintiff's Counsel rightly did not suggest - the inquiry that the plaintiff's relatively young age and relative driving inexperience may explain his actions (Joslyn v Berryman (2003) 214 CLR 552 at [32]).
6. I find, for the purposes of s 5R of the Civil Liability Act, that the plaintiff was guilty of contributory negligence, by entering into the intersection on a red light.

Apportionment

1. I am obliged to consider the relative importance of the acts of both the plaintiff and the defendant in causing the plaintiff's harm; and the whole of their respective conduct must be subject to comparative scrutiny.
2. This is not a case where either driver was intoxicated, or there was some other factor at play which aggravated the negligence of either driver.
3. I consider, on balance, that the plaintiff was more culpable. Mr Clement had driven properly to the point where he had reached the middle of the intersection and where he had let the oncoming white vehicle pass him by. He was permitted to be there and he was permitted to turn, even on a red light, when it was safe for him to do so. He was placed, through no fault on his part, in an awkward predicament, by being in the middle of the intersection when the arrow authorising him to turn right had turned back to red; and other cars were likely to be obstructed if he remained there. He had seen Ms Littlejohn stop. Although I have determined that in the particular circumstances he faced, it was not reasonable for him to simply assume that the plaintiff would also stop, it was not unreasonable for him to have an expectation that other vehicles would comply with Road Rules.
4. It is unnecessary to conclude, as the plaintiff's Counsel submitted, that Ms Littlejohn was an overtly cautious driver. What she did was what reasonable motorists travelling south down Balmoral Street were required to do when the lights turned orange. The plaintiff had a greater freedom of choice than Mr Clement. He did not have to proceed through what he wrongly believed was an orange light at all. If, as may be the case, he sought to emulate the white car, which had gone through the orange light, he could not have factored in the circumstance that the white car had more time to proceed through the orange light, and get across the intersection safely, than he did. Arguably, he put the defendant, and other drivers travelling east or west along Bingarribee Road at a risk of collision; whereas, by way of contrast, the defendant's conduct may not have necessarily endangered anyone else other than the plaintiff [2] . That said, although he went through a red light, it was only a marginal call. By choosing to drive through the light, the plaintiff was driving faster, and should be taken to have known that he was driving faster than the defendant's vehicle; and thereby had less control. By his own breach, he put himself in a position whereby he had less room to manoeuvre than the defendant in terms of taking evasive action prior to the point of impact.
5. Nevertheless, it cannot be said that the defendant was not culpable. In my view, as indicated by reasons for finding that he breached his duty, he subordinated his concern for oncoming traffic to his concern about the temporary inconvenience to other drivers in the intersection should his truck remain stranded in the intersection as a result of his refraining from completing the right turn.
6. In terms of causal responsibility, I do not accept the defendant's submission that the comparative size of the two vehicles was irrelevant. There is an obvious differential impact in the damage that the defendant may cause the plaintiff and the damage that the plaintiff may cause to himself [3] . In Ayre v Swan [2019] NSWCA 202, McCallum JA (Macfarlan JA agreeing) observed (at [72] [4] ) that: "the precautions reasonably required of a party to a motor accident may be different in kind where the drivers were in control of different vehicles. A motorcyclist, like a pedestrian, faces a greater risk of harm relative to the driver of a car or truck. It is this harm against which the contributory negligence of the plaintiff is to be assessed".
7. On this reasoning, a driver of a Toyota Starlet Hatchback faces a significantly greater risk of harm relative to the driver of a Iveco prime mover. The defendant's causal contribution to the plaintiff's harm was higher than the plaintiff's.
8. In my view, the appropriate reduction for contributory negligence is 50%.

The Chronology (Exhibit A)

1. The plaintiff prepared a chronology. Senior Counsel for the defendant accepted its accuracy and did not require any supplementary information from the defendant.
2. The chronology contained extensive references to the extensive treatment and assessment that the plaintiff had received; none of which was controversial. Features of the evidence were as follows.
3. After the accident, on admission to Westmead Hospital, a CT of the plaintiff's brain showed a small right frontoparietal subdural haematoma; acute subdural haematoma over left frontal and (to a lesser degree) right frontal regions; extensive pneumocephalus; raised intracranial pressure; extensive fractures of the base of the skull, cranial vault and facial bones.
4. After his discharge from Westmead on 31 August 2018, the plaintiff was assessed by a clinical psychologist, Mr Rodriguez in September 2018. Mr Rodriguez reported that the plaintiff had difficulty adjusting to his injuries and ongoing fluctuations in his level of frustration and self-reported mood state.
5. A neuropsychological assessment was performed by Dr J Massey. The plaintiff was reported as demonstrating difficulty in maintaining effort; scoring below expected levels on measures of immediate attention and working memory; processing speed; mental flexibility, planning, the ability to learn and retain complex detailed information.

Expert opinion evidence

1. The plaintiff relied upon four reports of Dr Stephen Buckley (Exhibits E - H, inclusive), prepared in late 2020 and, most recently, on 23 August 2021. Dr Buckley is a consultant physician in rehabilitation medicine. Dr Buckley was not required to attend for cross-examination.
2. By the end of the third of his reports, as at December 2020, Dr Buckley had diagnosed the plaintiff as having experienced a traumatic brain injury in the 'extremely severe' range, with post-traumatic amnesia, lasting 5.5 months, extensive subdural haemorrhage and right basal ganglia and internal capsule contusion; cognitive impairment, including memory impairment, with mild emotional and behavioural impairment and left hemiparesis.
3. In the last of his reports, in August 2021, Dr Buckley commented upon an MRI performed on 15 July 2021. Aside from the indication of increased seizure activity, which Dr Buckley was not previously aware of, the MRI confirmed his earlier views regarding the severity of the brain damage that the plaintiff had suffered; and his belief that he would be incapable of independent living.
4. The plaintiff also relied upon a report from Dr Graham Vickery, a psychiatrist. Dr Vickery diagnosed a Major Neurocognitive Disorder, due to traumatic brain injury, with a behavioural disturbance of apathy.

The defendant's evidence

1. The defendant relied upon two reports of Dr Jennifer Batchelor (Exhibits 6 & 7). Dr Batchelor is a clinical neuropsychologist. In her first report, Dr Batchelor identified that the plaintiff suffered an "extremely severe" traumatic brain injury; though could not quantify the nature and extent of his cognitive impairment secondary to the traumatic brain injury. Her conclusions were repeated in the second report.

The plaintiff's submissions

1. Counsel for the plaintiff submitted that the plaintiff, now aged 24 years of age, but aged only 19 at the date of the accident, suffered catastrophic injuries, which included:

• Traumatic brain injury in the "extremely severe" range, with post-traumatic amnesia lasting 5.5 months;
• Cognitive impairment, including memory impairment, with mild emotional and behavioural impairment;
• Left hemiparesis;
• Left hemianopia; diplopia as a result of a left 6th nerve palsy;
• Seizure disorder;
• Fractures of the face, and a mild temporomandibular joint injury, causing reduced mouth opening and difficulty with chewing;
• Fractured right elbow with a significant reduction in range of movement;
• Fracture right femur resulting in mal-union, and complicating a previous injury of the left femur when aged 12.

Findings

1. Subject to a qualification arising from Dr Batchelor's evidence, considered below, there was no serious contest about these injuries being caused by the accident and I accordingly find that they were caused.

The chronology (Exhibit A)

1. From this chronology, the following undisputed facts emerge: 1. in February 1998, the plaintiff was born in New Zealand. His family was of Malaysian background in which the Malay and English languages were both spoken; 2. at a young age, the plaintiff emigrated to Australia with his family; 3. in 2010, he sustained a broken left hip, but he has made a good recovery from that incident; 4. in 2015, he completed his Higher School Certificate; 5. In 2016, he commenced a Bachelor of Health Science Degree at the Western Sydney University. During this year, he was also a casual worker, as a security guard, or customer services officer, with Secure Parking.
2. The plaintiff's tutor gave evidence. Relevantly, he confirmed the plaintiff's ambition to become a paramedic. He said that the plaintiff now needs 24 hour care. This evidence was unchallenged (although the tutor acknowledged that the plaintiff was receiving paid care for which he is not to be compensated in this proceeding).
3. The tutor also stated, in cross-examination, that the plaintiff had not attempted work since the motor vehicle accident. Senior Counsel for the defendant did not later make any submission adverse to the plaintiff from that circumstance.
4. Dr Vickery opined that the plaintiff did not have the capacity to complete his Bachelor of Health Science or obtain employment as a paramedic; nor otherwise the capacity to complete studies at a tertiary level. He was not able to continue working as a Customer Service Officer. With a poor prognosis, Dr Vickery believed he had no residual work capacity.
5. In her second report, Dr Batcherlor stated that given the lapse of years since the traumatic brain injury had occurred, the plaintiff's residual cognitive and behavioural impairments, which were secondary to this brain injury, represented permanent deficits.
6. The defendant concedes that the plaintiff will be unable to return to work.

The plaintiff's claim

1. By its Counsel's 'Updated Schedule of Damages' (MFI 2), the plaintiff's claim for damages (without deduction for contributory negligence) was put as follows: Non-economic loss (maximum recovery) $595,000 Past loss of earning capacity $155,384 Past loss of superannuation $13,927 Future loss of earning capacity (incl 15% vicissitudes) $1,091,930 Future loss of superannuation (incl 15% vicissitudes) $121,165 Loss of long service leave (incl 15% vicissitudes) $5,151 Fund Management TBA Total $1,982.558

Non-economic loss

1. The plaintiff's Counsel submitted that the nature of the severe and permanent injuries suffered by the plaintiff were such as to entitle him to the maximum amount recoverable, under s 4.22 of the Motor Accident Injuries Act, being $595,000.
2. Counsel for the plaintiff submitted that the plaintiff was an obvious candidate for an award reflecting this maximum amount.
3. The only matter which Senior Counsel raised in opposition to this submission was sourced in some opinion evidence from Dr Batchelor to the effect that on her assessment of the plaintiff, there was what Senior Counsel characterised as an element of deliberate underperformance. This, the defendant argued, indicated a higher level of functioning than the medical practitioners would admit. Senior Counsel submitted that a figure of $450,000 would be appropriate, so as to avoid overcompensation.
4. A difficulty with Dr Batchelor's opinion, partly referable to the limits of her expertise, is that if there was any 'suboptimal' responding when the plaintiff was tested by her, there was nothing to indicate the reasons for it. Contrary to the defendant's submission, I do not accept that if there was suboptimal reporting, that this was deliberate. There was ample evidence of proven disabilities which might have contributed to his suboptimal assessment, assuming that Dr Batchelor's opinion in that respect should be accepted. This included lack of concentration and confidence; not to mention anxiety and depression. There was no indication that these disabilities were evident in the plaintiff before the accident. Relevant in this regard also is the absence of questioning of the plaintiff himself (or his tutor) as to his mental capacity generally and when he was examined by Dr Batchelor in particular.
5. There being no other basis of opposition identified by the defendant for the maximum award, I consider that the maximum award for this component should be awarded, being $595,000.

Assumptions

1. It was not disputed that prior to the accident, the plaintiff was undertaking studies to qualify him as a paramedic. But pending completion of those studies, as a casual worker (a customer service officer) at Secure Parking, he was earning $830 net per week. Further, it was also not disputed that he would have commenced employment as a trainee paramedic on 1 January 2021.
2. The Paramedics and Control Centre Officers (State) Award 2021 was in evidence (Exhibit O).
3. A report from Chris Kathehos (Director) and Leanne Marks (Manager), of Furzer Crestani, Chartered Accountants (Forensic) was also in evidence (Exhibit M). In addition to the assumptions identified in paragraph [176] above, the accountants also assumed that he would complete his on the job training, as a paramedic, by 1 January 2024 and, on 1 January 2029, he would advance to the position (Scenario 3) of Team Leader, then Station Manager after 5 years.
4. On the basis of scenario 3, and its earlier assumptions, Furzer Crestani estimated that the plaintiff's: Past loss of income is $155,384; Loss of future income is $1,284,624; Loss of superannuation (past and future) is $156,474; and Loss of future long service leave is $6,061.
5. Mr Kathehos was not required to attend for cross-examination.
6. But, as the plaintiff's Counsel fairly pointed out, in relation to the claims for future loss, Furzer Crestani did not make the usual deduction for vicissitudes. Making that deduction in the aspects of future loss led to the figures claimed, as indicated above. The defendant did not suggest any altered figure for vicissitudes.
7. The defendant served a report from Ian Paul, of Polemic Forensic Accounting, dated 9 November 2020 (Exhibit 5). But no reference was made to its conclusions in Senior Counsel for the defendant's written (or oral) submissions; or submission made as to why I should prefer Mr Paul's evidence to the Furzer Crestani report.

The plaintiff's submissions

1. The plaintiff's Counsel submitted that there was no contest that the plaintiff was progressing through his undergraduate degree at the University of Western Sydney. He had completed two years of his studies and was on track towards his intended career as a paramedic. There was no serious suggestion that his injuries have rendered him totally and permanently incapable of any form of paid employment.
2. As to Fund Management, the plaintiff submitted that the appropriate amount would depend on the damages awarded by the Court and the extent to which the damages are reduced for contributory negligence. This should be the subject of further consideration for the parties when they prepare short minutes to give effect to these reasons.

The defendant's submissions

1. With regard to the plaintiff's updated schedule of damages, Senior Counsel for the defendant took issue only with the component for long service leave. Given that the calculations for future economic loss dealt with every week until the plaintiff turned 67, there was no need to add that additional component.

The plaintiff's submission in reply

1. Following the last submission from the defendant, Counsel for the plaintiff abandoned any claim for loss of long service leave.

Consideration

1. In the circumstances so described, save for the reference to the claim for loss of long service leave, I accept the calculations from Furzer Crestani report.
2. Prior to the deduction for contributory negligence, the plaintiff's damages, taking into account the award for non-economic loss and the conclusions from the Furzer Crestani report, are in the sum of $1,977,406.
3. With the 50% deduction for contributory negligence, the plaintiff's damages award is reduced to the sum of $988,703.

SUMMARY & OrderS

1. For these reasons, in summary, I find: 1. that the defendant breached his duty of care to the plaintiff; 2. that the plaintiff was guilty of contributory negligence; 3. that on an apportionment, the defendant's liability should be reduced to 50% of the award for damages; 4. that subject to further provision for funds management, damages are payable in the sum of $1,977,406; 5. that with the deduction for contributory negligence, and subject to provision for funds management, the damages are reduced to $988,703.
2. The parties are to prepare short minutes to give effect to these reasons; principally to facilitate consideration of an additional component for funds management and also the issue of costs.
3. If the parties are in disagreement as to appropriate orders, including costs, then after conferring amongst each other: 1. the plaintiff is to submit a short outline of submissions not exceeding 5 pages (omitting relevant supporting evidence) within 3 days of these reasons; 2. the defendant is to submit a short outline of submissions in response not exceeding 5 pages (omitting relevant supporting evidence) within 3 days of being served with the plaintiff's submissions; 3. the plaintiff is to submit a short outline of submissions in reply not exceeding 2 pages, within 2 days of being served with the defendant's submissions; and 4. final dispositive orders are to be determined on the papers absent any contrary indication.

Endnotes

1. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532-3
2. Pennington v Norris (1956) 96 CLR 10 at 16-17; Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25
3. Isherwood v Flavin [2000] NSWCA 232 per Fitzgerald JA (Mason P agreeing, Powell JA dissenting) at [49]
4. Her Honour citing Gordon v Truong [2014] NSWCA 97; (2016) 66 MVR 241 per Basten JA at [15]) 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: 31 August 2022