Peak v Dunleavy

LEGISLATION CITED: Motor Accidents Compensation Act (NSW) 1999: s 138

Adelaide Stevedoring Co Ltd v Forst [1940] 64 CLR 538 Bonnington Castings Ltd v Wardlaw (1956) AC 613 Bradshaw v McEwan Pty Ltd (HCA, 1952, unreported) Chappel v Hart [1998] 195 CLR 232 Clark v Ryan (1960) 103 CLR 486 Davies v Swan Motor Co. Ltd [1949] 2 KB 291 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 at 138 Evans v Lindsay [2006] NSWCA 354 CASES CITED: Fox v Percy [2003] 214 CLR 118 Jones v Dunkel [1958-1959] 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Manley v Alexander (2005) 80 ALJR 413 March v E. & M.H Stramare Pty Limited [1990-1991] 171 CLR 506 R v Parker (1912) VLR 152 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267

PARTIES: Rachelle Suzanne Peak by her Tutor Doreen Peak Leonie Dunleavy

COUNSEL: Mr RS McIlwaine SC and Mr CP Locke (Plaintiff) Mr SG Campbell SC and Mr SE McCarthy (Defendant)

SOLICITORS: Velleley & Associates (Plaintiff) McLachlan Chilton (Defendants)

1. The Plaintiff, Rachelle Suzanne Peak has brought these proceedings through her mother Doreen Peak as Tutor. The Plaintiff claims damages for alleged negligence in respect of severe and disabling injuries she sustained in a motor vehicle collision that occurred on 10 June 2004 when her motor vehicle came into collision with a vehicle that was driven by the Defendant. At the trial liability was in strong contest.

2. The Plaintiff sustained severe multi-trauma which included a fracture of the base of the skull that required decompressive craniotomy, a crushed chest wall, pelvic fractures and multiple other musculo-ligamentous injuries and lacerations. She has been left with severe multiple disabilities due to brain damage complicated by a stroke. She has cognitive impairment and right-sided hemiplegia.

3. It was common ground between the parties that as a consequence of her head injury the Plaintiff has no recollection of the events leading up to or surrounding the collision. The Plaintiff was not called as a witness on account of the effects of her injuries which included post traumatic amnesia and an inability to speak. It was agreed between the parties that no adverse comment would be made as a consequence of the Plaintiff not being called to give evidence.

4. When the case was opened the following matters were in dispute: (a) the alleged negligence of the Defendant;

(b) the alleged contributory negligence on the part of the Plaintiff;

(c) whether the Defendant's negligence was, in the legal sense, the cause of the Plaintiff's injuries and resultant disabilities;

(d) the quantum to be assessed in respect of multiple heads of damage on account of the many injury related needs of the Plaintiff which required assessment.

5. On the second day of the trial the parties announced that subject to the approval of the Court, they had reached an agreement on the quantum of the Plaintiff's damages in the sum of $5,000,000 plus costs.

6. The agreement as to damages did not include any reduction for apportionment for alleged contributory negligence nor did it include any amount to be added to the Plaintiff's damages in respect of the claim for funds management charges. It was agreed that funds management charges would need to be calculated by an actuary after my liability findings were announced. I indicated my provisional approval of the agreement the parties had reached on damages.

7. I deferred making formal approval orders in respect of the agreement to settle the damages issues pending a determination of the liability issues.

8. The circumstances of the case are unusual in that the combined effect of the absence of evidence from the Plaintiff, the limited content of the eyewitness accounts and the limited products of the police investigation, require that a detailed analysis of the events be undertaken in order to determine the issues in the case. The limited nature of the evidence in this case, the importance of the issues to the parties and the amount involved requires that the reasons for judgment include a detailed and more extensive examination of the evidence to a degree which would perhaps not normally be required for the determination of such cases. Soulemezis -v- Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per Kirby P at 259 and Mahoney JA at 271.

I find that at the time of the collision the Plaintiff had attempted to make a U-turn manoeuvre to her right by which she turned into the path of the Defendant's vehicle that was approaching from behind. I find that the Defendant failed to keep a proper lookout and failed to observe the Plaintiff's flashing right indicator light that signalled the Plaintiff's intention to pull out onto the roadway and into the path of the Defendant's vehicle. I find that prior to the collision the Defendant failed to decelerate or apply her brakes so as to reduce her speed to allow the Plaintiff's vehicle to pass without a collision. I find that the Defendant failed to warn the Plaintiff of her approach. I also find that the Defendant failed to swerve, steer or otherwise manoeuvre her vehicle so as to avoid a collision.

I find therefore that the Defendant was negligent and I find that the Defendant's negligence was the cause of the Plaintiff's injuries. I also find that there was contributory negligence on the Plaintiff's part, the causative potency of which I assess at 35 per cent. I therefore apportion the agreed amount of $5,000,000 for damages to reflect my findings in relation to the Plaintiff's contributory negligence. This results in an interim judgment for the Plaintiff in the sum of $3,250,000 plus costs pending agreement or assessment of applicable funds management charges.

At about 6.40pm on Thursday 10 June 2004 a collision occurred between two vehicles on the northbound traffic lane on Wilfred Barrett Drive at North Entrance, New South Wales.

At the scene of the collision Wilfred Barrett Drive comprises an urban arterial road that runs generally north to south. The northbound carriageway comprises a sweeping 380m long curve to the left. The curve has a radius of 305m preceded by a 90m straight section. The nature of this curve is conveniently shown in a series of aerial photographs, namely Figure 3 on page 6 of Exhibit "D" and an enlarged aerial photograph that was marked Exhibit "8".

At the scene of the collision the curved roadway was slightly banked but generally flat. The surface of the roadway comprised sealed bitumen with marked lanes for northbound and southbound traffic. These two lanes were separated by two unbroken white double centre lines. There were further white unbroken edge markings located near the edge of the bitumen road shoulder on either side.

The total width of the bitumen roadway comprising the northbound and southbound lanes was 7m, which meant that there was about 3.5m of trafficable lane width in either direction. In addition to the bitumen traffic lanes there were shoulders on both sides of the roadway each comprising a 2.5m wide chip-sealed bitumen surface delineating a cycleway or breakdown lane. Beyond the edges of the cycleway were some cleared grassed areas which were not the subject of measurements. Beyond that there was roadside vegetation comprising bushes and trees.

At the time of the collision the conditions were overcast and dark, the road was wet from previous rainfall but it was not actually raining.

Shortly before the collision the Plaintiff had been driving her white Mitsubishi Lancer motor vehicle registered number APJ-02Y in a northerly direction along Wilfred Barrett Drive. The Plaintiff had been seen to pull her vehicle over to the left side of the road and park it off the carriageway. The front of the Plaintiff's parked vehicle faced north. The evidence does not precisely identify the duration of time over which the Plaintiff's vehicle was parked at the roadside. Significantly, the evidence does not identify the precise location where the Plaintiff's vehicle had been parked other than to place it at an unknown position in front of and to the south of a south facing 70kph speed limit sign which was itself located on the left side of the northbound lane about 150m after the start of the curve.

A passing motorist, Mrs Joane Ginnbert, had been driving her vehicle north behind the Plaintiff's vehicle and had observed that the Plaintiff had pulled her vehicle off the road to the left in order to park on the side of the road. Mrs Ginnbert continued to drive past the Plaintiff's stationary vehicle and proceeded to turn left into a caravan park to continue on to her destination. Mrs Ginnbert said that as she passed the Plaintiff's vehicle she observed the Plaintiff was within her vehicle and she noted some of the features of the interior of the vehicle. After she had passed the Plaintiff's vehicle and had travelled some distance ahead to the north she looked back through her rear vision mirror and saw that the right sided traffic indicator was flashing on the front driver's side of that vehicle. Her evidence concerning the flashing traffic indicator light was the subject of challenge and dispute by the Defendant.

Shortly after Mrs Ginnbert's vehicle had passed the Plaintiff's parked vehicle the Defendant's vehicle, which was also travelling north on Wilfred Barrett Drive, entered the sweeping left northbound curve on the roadway some distance to the south of where the Plaintiff had parked her vehicle. The Defendant said that she was driving her Toyota Landcruiser registered numbered QEA-571 in a northerly direction on Wilfred Barrett Drive when she entered the curve and saw the Plaintiff's parked vehicle ahead displaying its red rear lights. The Defendant disputed that the Plaintiff's rear right indicator was flashing.

In her oral evidence the Defendant said that as her vehicle approached the rear of the Plaintiff's parked vehicle that vehicle moved from the stationary position and turned into the path of the Defendant's vehicle. A collision then ensued. It was assumed by the Defendant and by the expert witnesses engaged by the parties that immediately before the collision the Plaintiff had attempted to make a U-turn across the Defendant's path.

There was some dispute over whether the Defendant had kept a proper lookout and whether she drove at an appropriate speed and had responded with an appropriate state of alert to the presence of the Plaintiff's vehicle as she continued to approach the point where the collision occurred.

The Defendant said that prior to the collision, just after she had seen the position of the Plaintiff's parked vehicle, and as a response to having seen it, she moved her own vehicle to a position towards the centre of the northbound lane of the roadway as she approached the Plaintiff's vehicle from behind. She said she did so as a courtesy in case a door was opened on the driver's side of the Plaintiff's vehicle.

There was conflicting evidence from the Defendant as to whether or not she had applied her brakes before the collision.

Mrs Ginnbert said that after she had passed the Plaintiff's parked vehicle she turned her own vehicle to the left and off the roadway and was driving within the grounds of the nearby caravan park when she heard the loud noise of a collision. She immediately turned her vehicle around and drove back to the scene of the collision.

Senior Constable Baird from Toukley Police Station was called to the accident scene, as were the ambulance and fire brigade services. The Plaintiff was trapped in her vehicle for some time before being removed and taken to hospital with serious injuries.

Senior Constable Baird drew a diagram in his notebook to indicate the relative positions of the two vehicles as he found them at the scene of the collision. He also made some marks on the roadway to enable some subsequent measurements to be taken during daylight. Senior Constable Baird was not able to identify a point of impact of the two vehicles. It appears that this was because the roadway was wet. Senior Constable Baird's supervisor later attended at the scene and took some photographs.

The original photographs taken by Senior Constable Baird's superior officer were not produced because they could not be located. However, black and white photocopies of four of these photographs were available. These were tendered as photographs 1 to 4 of Exhibit "1". Additional photographs showing the damaged vehicles were tendered as Exhibit "5". I have reviewed and considered these photographs to assist with a reconstruction of events.

Photograph 1 of Exhibit "1" is a view apparently taken from a position at the centre of Wilfred Barrett Drive and shows numerous service personnel in attendance. It is not entirely clear from this photograph as to whether it shows a northbound or southbound view.

Photographs 2 to 4 of Exhibit "1" are a series of photographs which provide some assistance in arriving at an understanding of the mechanics of the collision.

Photograph 4 of Exhibit "1" shows the two vehicles after the collision and at rest on the eastern side of Wilfred Barrett Drive and straddling the southbound lane. The significance of this photograph is that it shows the Defendant's vehicle to be juxtaposed to the Plaintiff's vehicle at an acute angle to the perpendicular. It also shows the Plaintiff's vehicle apparently straddling the southbound lane of Wilfred Barrett Drive almost perpendicularly.

Photograph 3 of Exhibit "1" is a similar view of the two vehicles juxtaposed in collision as is evident in photograph 4 of Exhibit "1" but this photograph is taken from a position on the northbound lane of the roadway looking towards the rear of the Plaintiff's vehicle. This photograph shows the vehicle at rest and confirms that the Plaintiff's vehicle is almost perpendicular to the roadway and straddling the southbound lane and the southbound cycleway or breakdown lane. This photograph also confirms the acute angle of the at rest juxtaposition of the front passenger's side of the Defendant's vehicle with the front driver's side of the Plaintiff's vehicle. It also shows the Plaintiff's damaged driver's door in situ.

Photograph 2 of Exhibit "1" is another view that shows the position of the two vehicles at rest following the collision. This photograph was taken from the front of the vehicles and shows the front passenger side corner of the Defendant's vehicle abutting the front driver's side quarter panel of the Plaintiff's vehicle. Both vehicles are shown to be straddling the southbound cycleway or breakdown lane and in the foreground of the photograph a grass verge is seen on the south-eastern side of the roadway.

Each of the four photographs comprising Exhibit "1" show both vehicles to have been extensively damaged in the impact.

Photograph 2 of Exhibit "5" shows a close front view of the juxtaposed vehicles at rest after the collision. This photograph suggests an angled point of contact between the left front portion of the Defendant's vehicle and the driver's side of the Plaintiff's vehicle. It also shows an extensive post-impact intrusion deformity within the driver's side cabin of the Plaintiff's vehicle.

Photograph 4 of Exhibit "5" shows a side on view of the damage to the driver's side of the Plaintiff's vehicle, apparently taken after the two vehicles had been separated in order to free the Plaintiff.

Photograph 10 of Exhibit "5" is a photograph showing the damaged driver's side of the Plaintiff's vehicle. The photograph was taken when the Plaintiff's vehicle had already been loaded onto the tray of a recovery vehicle.

Photograph 11 of Exhibit "5" shows a front view of the damage to the Defendant's vehicle. The photograph was also taken after the Defendant's vehicle had already been loaded onto the tray of a recovery vehicle.

In view of the limited factual material available for consideration the foregoing photographs bear close examination and interpretation, for the purpose of analysing the manner in which the collision occurred. In particular it becomes necessary to determine whether the Plaintiff in fact undertook a U-turn manoeuvre. The photographs are also relevant to an understanding of the evidence given by crash analysis experts.

Senior Constable Baird attended the scene the following day to take some measurements relative to the marks he had made on the roadway on the previous evening. With the assistance of an odometer device attached to a wheel he established by measurement that the resting point of the vehicles was 180m south of Wyuna Avenue, a side street situated to the north of the collision site, and 210m north of Mini Street, a side street situated to the south of the collision site.

Some hours after the collision the Defendant attended at Toukley Police Station and gave a statement in the following terms: "I am 34 years of age.

About 6:40pm, on Thursday the 10th of June 2004, I was driving home from work with a work friend who I know as Wan. She was seated in the front passenger's seat.

I was driving my car which is a Toyota Landcruiser, registration no. QEA-571. I was travelling north on Wilfred Barrett Drive, North Entrance at about 60 to 70 km/h. I was travelling around a left-hand bend approaching the Two Shores Caravan Park. At the time, there were no other cars directly in front of me that I could see and I was driving with my headlights on.

I saw another white car that was pulled over to the left of the road, just off the roadway. The next thing I seen was just white in front of me. The car turned straight out in front of me as if the driver was doing a U turn. The car only pulled out as I was at the back of the car. I had no time to brake or do anything. I just remember hitting the other car and then putting on the brakes. My car slid, pushing the other car onto the other side of the road. We both came to a stop. The front of my car collided with both front and rear driver's side doors of the other car.

The passenger in my car told me that she had hurt her leg. I then looked over to the other car I hit and I couldn't see anyone in it. I then got out and saw that the driver of the other car was injured. I rang the Ambulance. Another guy that stopped then got into the car and started helping the driver of the other car.

I then waited until Police and Ambulance arrived. The passenger in my car was also taken to hospital by Ambulance as she had a swollen leg. At the time of the accident, it was dark and the road was wet but it was not raining at the time as it had been raining on and off all day."

On 19 June 2004, nine days after the collision, Mrs Ginnbert attended The Entrance police station and provided a statement in the following terms: "About 6.30pm - 6.45pm on Thursday 10/6/04 I was driving my car from The Entrance back to my holiday van in the Two Shores Caravan Park (North). I was following a white Mitsubishi Lancer. I saw the Lancer pull over to the left of the road just before the entry to the caravan park. I then passed the Lancer & turned into the park. As I was driving into the caravan park when I heard a loud bang. I then went back down the road & saw the same white lancer had been hit on the driver's side doors by the front of a big 4WD with a bull bar. The 4WD had pushed the lancer onto the other side of the road I saw that a man was already helping the woman that was injured."

Miss Wphawan Taisanthiah was a passenger who was seated in the front of the Defendant's vehicle at the time of the collision. The investigating police obtained a statement from this witness. That statement appeared at page 115 of Senior Constable Baird's notebook and was marked as MFI "8" but that statement was not introduced into evidence.

Mrs Ginnbert, the Plaintiff's brother Mr Peak and Senior Constable Baird were called to give evidence on liability issues in the Plaintiff's case.

The Defendant and her passenger, Miss Taisanthiah and Mr Morgan, an officer with Wyong Shire Council, were called to give evidence in the Defendant's case.

The parties each engaged expert witnesses with qualifications in engineering and traffic accident analysis. Mr John Jamieson was engaged on behalf of the Plaintiff. His report dated 29 August 2007 was tendered and marked Exhibit "D". Mr Roger Stuart-Smith was engaged on behalf of the Defendant and his report dated 6 June 2008 was marked Exhibit "17". Each of these experts gave oral evidence. The evidence of these experts was directed at analysis of the dynamics and mechanics of the collision in an attempt to reconstruct the events.

The Plaintiff also engaged a biomechanical engineer, Dr Thomas Gibson. He provided a report dated 17 March 2008 which was tendered and marked Exhibit "E". Dr Gibson also gave oral evidence. The focus of his evidence related to the nature of the Plaintiff's injuries based on assumed facts. His evidence related to a causation argument sought to be mounted on behalf of the Plaintiff.

A number of objections were taken to the evidence of these experts. Those objections related to matters of assumption, hearsay, speculation and as to whether the opinions being proffered by the experts were properly within the expert qualifications of the respective witnesses. In large measure the objections fell away and the remaining matters in dispute proved to be largely of a factual nature and in a relatively small compass so that I was not ultimately required to undertake a detailed filtration of the expert evidence in accordance with the principles in Makita (Australia) Pty Ltd -v- Sprowles [2001] 52 NSWLR 705.

I am mindful of the general criticisms made of the value of expert evidence in the field of crash reconstruction in cases such as this and I therefore approach the consideration of such evidence with caution. Fox -v- Percy [2003] 214 CLR 118 per Callinan J at 166 to 168.

A number of photographs and plans prepared by these experts were tendered through the evidence of the expert witnesses with the aim of assisting in the determination of the liability issues.

A number of fundamental factual issues arise for determination before the expert opinions could be drawn upon to the permissible degree to assist with the reconstruction of the events of the collision.

The resolution of a number of factual matters are necessary precursors to the determination of the liability issues in this case. Those factual issues which arise for determination are: (a) Was the Plaintiff attempting a U-turn manoeuvre at the time of the collision;

(b) Did Mrs Ginnbert see the right traffic indicator flashing on the Plaintiff's vehicle after she had passed the Plaintiff's stationary vehicle;

(c) Was the right traffic indicator operating in the flashing mode on the Plaintiff's vehicle when the Defendant's vehicle entered the curve and when the Plaintiff's parked vehicle first came into the Defendant's view;

(d) What was the probable speed of the Defendant's vehicle as it negotiated the curve at the point where the Plaintiff's vehicle came into the Defendant's line of sight and at what speed was the Defendant's vehicle travelling from that point to the point of impact between the two vehicles;

(e) What was the distance between the point when the Defendant first saw the Plaintiff's vehicle parked on the side of the roadway, and the point where impact occurred between the two vehicles;

(f) Reconstruction of the course taken by the respective vehicles to the probable point at which a collision occurred between the vehicles;

(h) Were the Plaintiff's injuries caused by the negligence of the Defendant;

Of the factual issues outlined above, items (a), (b), (c), (d) and (e) of paragraph 51 above, involve matters of fact and do not depend upon the input of opinions from expert witnesses.

The analysis of the factual issues embodied in items (f) and (g) of paragraph 51 above, whilst open to be determined as matters of fact are, in my view, aided by the input of expert witnesses.

The determination of the issues involved in items (a) to (e) of paragraph 51 above is in my view, a necessary precursor to a determination of the issues involved in items (f) and (g) of paragraph 51.

Was the Plaintiff attempting a U-turn manoeuvre at the time of the collision?

In formulating the theory as to how the collision occurred the parties and the experts retained by them have assumed that the Plaintiff was in the course of executing a U-turn manoeuvre on Wilfred Barrett Drive when the collision occurred. The source of that assumption appears to be the statement of the Defendant in which she told the investigating police that it appeared to her that the Plaintiff had turned straight out in front of her as if the Plaintiff was doing a U-turn.

The photographs comprising Exhibits "1" and Exhibit "5" show that the driver's side of the Plaintiff's vehicle sustained significant side-on damage. In my view that damage is consistent with the Plaintiff's vehicle having turned to her right and into the path of the Defendant's approaching vehicle as was indicated in the statement of the Defendant.

It seems to me that the only reasonable alternative hypothesis that might possibly explain the damage shown in the photographs would be for the Plaintiff's vehicle to have turned slightly to her right in order to resume northbound travel on Wilfred Barrett Drive, and at the same time the Defendant's vehicle, having been earlier positioned towards the centre of the road, swerved left to strike the Plaintiff's vehicle on its driver's side during some kind of overtaking manoeuvre. The absence of debris on the roadway does not exclude this hypothesis however it seems to me that this hypothesis is an unlikely explanation for the collision as it is inconsistent with the ultimate resting place of the vehicles after the collision, as was explained by both expert witnesses who undertook a resolution of the relevant vector forces of the collision. The experts concluded that the position of the vehicles at rest was consistent with the Plaintiff having attempted a U-turn manoeuvre shortly before the collision. I accept their opinions to this effect.

I find therefore that the Plaintiff was in fact attempting a U-turn manoeuvre to her right when a collision occurred between her vehicle and the vehicle being driven by the Defendant.

Did Mrs Ginnbert see the right indicator flashing on the Plaintiff's vehicle after she had passed the Plaintiff's stationery vehicle?

The question of whether Mrs Ginnbert had seen the Plaintiff's right indicator flashing when she had looked back at the Plaintiff's stationary vehicle through her rear vision mirror requires a detailed consideration of her evidence.

Mrs Ginnbert was driving north on Wilfred Barrett Drive shortly before the collision. Her destination was the Two Shores Caravan Park which was located to the north and to the left ahead of where the Plaintiff was parked. She said she had been driving behind the Plaintiff's vehicle on Wilfred Barrett Drive and had observed that the Plaintiff's headlights were illuminated. She described seeing the Plaintiff's vehicle move off the roadway and to the left to park on what she described as gravel which I take to refer to what she understood to be a gravel verge at the roadside. She described how, after she had passed the Plaintiff's parked vehicle, she slowed down the speed of her own vehicle in preparation for making a left turn into the Caravan Park ahead.

Mrs Ginnbert said that after she had passed the Plaintiff's vehicle and before she had turned left into the Caravan Park she looked into her rear vision mirror to check for other traffic behind her. She stated that when she did so she saw that the Plaintiff's vehicle had its right front indicator on.

She then went on to describe how after she had turned into the Caravan Park and had driven for a little distance within the grounds of the Caravan Park, she heard what she described as a horrific bang. She estimated the time that had elapsed from when she saw the Plaintiff's right indicator operating until the time she heard the bang as possibly being some 5 to 10 seconds or maybe a little longer.

The evidence of Mrs Ginnbert was the subject of two significant challenges through cross-examination.

The first challenge of significance was to Mrs Ginnbert's observation that the Plaintiff's vehicle had pulled over off the road and onto the roadside shoulder which she described as a gravel surface. The second challenge of significance concerned the content of her police witness statement which did not include any mention of her having seen the right indicator operating on the Plaintiff's vehicle. The Defendant also sought to comment on the demeanour of Mrs Ginnbert when she was cross-examined.

First challenge to Mrs Ginnbert's evidence - gravel versus bitumen cycleway surface

The first challenge concerning the presence or absence of a gravel surface turned out to be somewhat peripheral to the assessment of Mrs Ginnbert's credibility.

The question of whether or not the area where the Plaintiff's vehicle was pulled up off the road comprised a sealed bitumen or a gravel surface had relevance in two ways. The issue is arguably relevant to the accuracy of Mrs Ginnbert's observations at the scene generally, which is a matter that goes to her credibility. The question also features as a potential distance variable concerning the calculations of the expert witnesses when making estimates of possible acceleration forces and times that they have assumed to have been applicable to the movement and direction of travel of the Plaintiff's vehicle in the lead-up to the collision.

Mr Jamieson thought the difference between a gravel or grass surface as opposed to a bitumen surface would make approximately a 1 second difference to the time taken for the Plaintiff to have partly executed a U-turn from a stationary position to an assumed point of impact on the northbound lane. In the case of a bitumen surface his evidence of the time for a partial U-turn, which was based partly on calculations and partly on experiments he carried out at the scene, was 3 seconds. In the case of gravel or grass, this time would be extended to 4 seconds. I prefer and accept Mr Jamieson's calculations concerning the estimated turning time because he had used non-violent acceleration assumptions compared to the opinion of Mr Stuart-Smith. Additionally, Mr Jamieson had verified his calculations by some practical experiments he had undertaken at the scene using a vehicle of similar power and turning circle to the Plaintiff's vehicle, whereas Mr Stuart-Smith's calculations remained entirely theoretical. I accept the appropriateness of Mr Jamieson's methodology and therefore, his turning time estimates in this regard.

Mrs Ginnbert's perception was that before the collision she saw the Plaintiff's vehicle move off the road onto the cycleway or breakdown lane situated on the left hand side of the roadway. She said she thought the surface of the roadside at that point was gravel. In my view, the portion of this evidence that is critical to the case is not whether the roadside cycleway or breakdown lane was sealed bitumen or was comprised of gravel, but that it was onto this area that the Plaintiff had pulled over and parked her vehicle and was seen to have remained parked in that position moments before the collision. In my view the issue of whether or not the surface was gravel or bitumen became an irrelevant distraction in view of the evidence given by Mr Morgan.

Mrs Ginnbert was not the only witness who believed that the roadside shoulder comprised gravel. The Plaintiff's brother, Mr Steven Peak was shown the photograph taken in 2007 that comprised MFI "3" and which was later tendered as Exhibit "4". According to the best of his recollection, he identified what is seen as the surface of the cycleway on the left of the northbound carriageway as gravel and not bitumen. His evidence was based on his observations when he visited the accident scene about a month after the collision. I accept that in giving his evidence he was doing the best he could to describe the scene as he saw it but I find that he was mistaken in this regard. I come to this view because of the evidence of Mr Morgan.

Mr Morgan, a senior construction officer employed by Wyong Shire Council was called by the Defendant to give evidence. He was the council officer in charge of road works in the area of the collision site and described how, in July or August of 2001 some road widening works on the shoulders of the roadway at the scene had been carried out. He said the work comprised widening the shoulders by 2 metres on either side of the road. His evidence in this regard was based on his memory of events surrounding the progress of the works in question and his evidence was aided by viewing some council documents produced on subpoena and also viewing photographs tendered in evidence. In particular, he stated, and I accept, that the surface of the cycleway of breakdown lane in question was bitumen from the time the works in question were completed in mid 2001 and remained so until the date of the collision.

I observe that the foregoing finding on this issue is contrary to the evidence of Mrs Ginnbert and Mr Peak. However the consequence of this finding does not in my view require that I must reject outright the evidence of Mrs Ginnbert or the Plaintiff's brother Mr Peak concerning their perception that the surface of the area in question was gravel. I come to this view for two reasons.

When Mr Morgan was asked to view the photograph taken in 2007, identified as Figure 7 and which was reproduced at page 10 of Exhibit "D" showing the northbound carriageway and road shoulder at the accident scene he acknowledged that at odd times, for various reasons, gravel was flicked onto areas where it collected such as that coincidentally depicted in the photograph. Further, Mr Morgan described the brown appearance of the sealed surface as shown in Figure 7 on page 10 of Exhibit "D" to be embedded brown stone where the bitumen covering had worn off to expose its real colour which was of a brown appearance. He agreed that what is shown in this photograph taken in 2007 would have comprised the surface as it was on 10 June 2004.

In my view the abovementioned photograph clearly distinguishes the dark colour of the bitumen carriageway from the lighter brown colour of the surface of the cycleway or breakdown lane so as to give the appearance of gravel.

In view of Mr Morgan's evidence in this regard I am not prepared to reject outright the evidence of Mrs Ginnbert or Mr Peak concerning the appearance of the surface of the cycleway or breakdown lane suggesting it was gravel and not bitumen. In my view, in the circumstances, they have understandably held the honest and mistaken belief that the surface was gravel when they described what they saw. Mr Morgan's evidence serves to reconcile what they believed they had seen as gravel when in fact the surface was bitumen. In any event, in my view, the issue ultimately ended up being of only peripheral relevance.

Second challenge to Mrs Ginnbert's evidence - Plaintiff's flashing right indicator

This then leaves for consideration the remaining challenge of significance to the evidence of Mrs Ginnbert, namely, her evidence that after she had passed the Plaintiff's stationary vehicle she looked back and saw in her rear view mirror that the Plaintiff's right indicator was in operation.

On this issue, at different times in the cross-examination of Mrs Ginnbert, it was variously put to her in the alternative, that she never saw the indicator signalling the intention of the Plaintiff to make a right turn or, that she might be mistaken about her observation of the operating status of the indicator. She denied both of these suggestions.

Mr Campbell SC cross-examined Mrs Ginnbert about when she was first asked questions about the indicator on the Plaintiff's vehicle to which she replied that this had occurred on the day before she was called to give her evidence in the proceedings. She was also asked for an explanation as to why she had not told the investigating police officer of her observation of the indicator at the time she was interviewed and had given her statement to the police. Her explanation was simply that she was never asked the question.

I find her explanation for not having beforehand mentioned the indicator in her police statement, to have the ring of truth and I accept her explanations as being truthful. Further, in my view, the evidence from Senior Constable Baird as to the manner in which he obtained statements from witnesses does not render Mrs Ginnbert's explanation improbable or unlikely.

Relevantly, there was no evidence to directly contradict Mrs Ginnbert's evidence concerning her observation of the operation of the Plaintiff's right indicator over the short period of time in which she had the opportunity to observe it. The evidence of the Defendant and Miss Taisanthiah could not contradict Mrs Ginnbert's evidence of her observation of the state of the Plaintiff's indicator during that short interval of time. This is so because at the time of Mrs Ginnbert's observation of the Plaintiff's indicator there is no evidence to suggest that at that moment the Defendant's vehicle had already entered the curve and was in a position that would have enabled either the Defendant and or Miss Taisanthiah to be able to see either the Plaintiff's vehicle or an indicator displaying a flashing light on that vehicle.

The evidence of the Defendant and Miss Taisanthiah is of course relevant to whether the indicator on the Plaintiff's vehicle was in operation at the respective times when they saw the Plaintiff's vehicle. That is a different issue and I will deal with that issue separately.

Further challenge made to the credibility of Mrs Ginnbert

The Defendant raised a further matter concerning the credibility of Mrs Ginnbert, namely, observations made regarding her demeanour towards the end of her cross-examination.

It was submitted that Mrs Ginnbert showed anxious behaviour in court which, it was argued, could have been indicative of the untruthfulness of her evidence. In this regard the transcript of her evidence between pages 46 to 49 shows that Mr Campbell SC sought an adjournment for the last 10 minutes before the luncheon adjournment on the first day of the trial so he could continue his cross-examination of Mrs Ginnbert at 2.00pm. The basis of his application was that he wanted to cross-examine Mrs Ginnbert with the aid of better copies of the photographs he wanted to use for that purpose.

It then appeared that Mrs Ginnbert became anxious and distressed over her childcare arrangements at Rooty Hill, which I note was some distance from the Court. In those circumstances I requested that the cross-examination continue until the usual luncheon adjournment to see if completion of it was reasonably achievable and I note that thereafter only four further questions were asked of Mrs Ginnbert and there was no re-examination. The witness was then excused. In these circumstances, I reject the Defendant's additional demeanour based submission concerning the credibility of Mrs Ginnbert.

Resolution of the indicator issue and the credibility of Mrs Ginnbert's testimony

I find Mrs Ginnbert's explanations concerning her observation of the right indicator operating on the Plaintiff's vehicle to be reasonable and believable. I accept those explanations as being factually correct. I find Mrs Ginnbert was a completely independent witness who did her best to truthfully recount the facts as she recalled them.

I accept the truthfulness of Mrs Ginnbert's evidence that after she had passed the Plaintiff's stationary vehicle and at the time when she looked back through her rear vision mirror she saw that the Plaintiff's vehicle was showing a flashing right turn indicator.

Was the right indicator still flashing on the Plaintiff's parked vehicle at the time when the Defendant's vehicle entered the curve and when the Plaintiff's parked vehicle first came into the Defendant's view?

The question of whether the Plaintiff's right turn indicator was operating to indicate a right turn when the Defendant's vehicle entered the curve and approached the Plaintiff's vehicle is of critical importance to the factual analysis of the case and to the outcome of the case.

Preliminary analysis of the issue - opportunity for the respective witness observations

Having accepted Mrs Ginnbert's evidence concerning the operation of the right indicator on the Plaintiff's vehicle it is necessary to consider whether the indicator on the Plaintiff's vehicle continued to operate without interruption between the time Mrs Ginnbert last saw it through her rear vision mirror and the time when the Defendant's vehicle negotiated the curve and approached the point on the roadway where the two vehicles collided.

The Plaintiff was not able to give evidence on this issue. Both the Defendant and her passenger Miss Taisanthiah denied that the indicator was flashing on the Plaintiff's vehicle whilst it was parked in a stationary position off the carriageway. I must assess the credibility of those denials in view of my finding concerning Mrs Ginnbert's earlier observation of the indicator.

I commence my consideration of this issue by reviewing the available time interval between Mrs Ginnbert's last observation of the blinker flashing on the Plaintiff's vehicle and when she heard the noise of the crash. She described this interval of time to be some 5 to 10 seconds later or maybe slightly longer. I note that in this period Mrs Ginnbert's vehicle would have slowed down to enter the caravan park and drive slowly over the speed bumps on the caravan park roadway. In my view there is nothing inherently unreasonable or improbable within Mrs Ginnbert's evidence as to the time estimate she gave. In the absence of evidence to the contrary I accept Mrs Ginnbert's estimation of the time lapse of 5 to 10 seconds having regard to her description of the distance and the territory over which she had travelled in this time.

Within that period of time of 5 to 10 seconds estimated by Mrs Ginnbert there was an interval of time when neither Mrs Ginnbert nor the Defendant or her passenger would have seen the Plaintiff's vehicle.

Is it likely that the Plaintiff would have cancelled the operation of her right indicator?

The next question that arises for consideration is whether there was any discernable reason for the Plaintiff to interrupt or cancel the continued operation of the right turn indicator after the time when Mrs Ginnbert last saw it and before the Defendant had her first opportunity to see the rear of the Plaintiff's parked vehicle. This issue is necessarily speculative in view of the inability of the Plaintiff to give evidence of her intentions at the time. The speculative nature of the exercise does not however preclude a consideration of the issue.

In examining this issue, from the perspective of the driver of a following vehicle, the Plaintiff's reasons for stopping by the side of the road could have been for any one of a number of reasons or a combination of reasons. For example she could have stopped to make a U-turn as I have found to be the case or alternatively, to make or take a mobile phone call, to consult a map for directions or to make some kind of vehicle adjustment. The list is not intended to be exhaustive and remains speculative.

Whatever someone in the Defendant's position may have thought to be the reason for the Plaintiff to have stopped, I think it is reasonable to assume, again, from the perspective of a following motorist in the position of the Defendant, that since the head and tail lights on the Plaintiff's vehicle remained on, it was reasonable to assume that the Plaintiff intended to continue her journey at some point.

Whatever the reason was for the Plaintiff to have stopped her vehicle, for the Plaintiff to continue the journey she would have had to re-enter the northbound lane to travel either north or south. To travel north she would have simply had to reposition her north-facing vehicle onto the bitumen roadway. Alternatively, to make a U-turn she would have to turn the vehicle around to travel south. Either way, in those circumstances it was prudent and incumbent upon her to signal her intention to traffic that may have been approaching from either direction even if at the time she intended to move from the stationary position, she was not able to see any such traffic approaching because of the darkness which prevailed at the time.

Mrs Ginnbert saw the indicator to be operating. On an ordinary understanding this would mean the Plaintiff was signalling an intention to move to the right and onto the roadway from a stationary position. Apart from the evidence of the Defendant and Miss Taisanthiah, there is no evidence from which I could reasonably infer that the Plaintiff had cancelled her right indicator signal after it had been seen by Mrs Ginnbert and then nevertheless proceeded to move her vehicle to the right and onto the roadway to either travel north or to commence to execute a U-turn without signalling the intention to do so beforehand.

On the basis of Mrs Ginnbert's description alone I am inclined to accept that the Plaintiff's right indicator continued to operate after Mrs Ginnbert's last observation of it. However, in order to further consider this issue before reaching a final conclusion I must examine the contrary evidence of the Defendant and her passenger, Miss Taisanthiah.

The point at which the Defendant or her passenger could have first seen the Plaintiff's stationary vehicle and its indicator, and for that matter the approximate point of impact for the collision, were not identified with accuracy in the evidence. This is a matter of some importance in this case because the roadway was curved to the left. The approximate position of that point, both in time and distance, requires analysis and deduction.

I commence this part of my analysis with an evaluation of the evidence of Miss Taisanthiah in order to reach an understanding of what she would have been in a position to have seen concerning the Plaintiff's indicator in the lead up to the collision.

Miss Taisanthiah was a front seat passenger in the Defendant's vehicle at the time of the collision. She was a work colleague of the Defendant. She was aged 34 at the time of the collision and was aged 38 at the time she gave evidence. She said she spoke and understood English in a limited way and preferred to give her evidence through a Thai interpreter. At the time of the collision she said she had been in Australia for 6 years since 1998. She worked as a cook and cleaner at the same local seafood restaurant where the Defendant also worked at the time of the collision. The Defendant was driving Miss Taisanthiah home from work when the collision occurred.

Miss Taisanthiah described the journey that commenced at the time when she and the Defendant had left work. She stated that they started the journey close to 7.00pm in the evening which I observe to be an incorrect time estimate. She stated that the Defendant had asked her to sit in the middle of three seats in the front of the vehicle for the journey because of the presence of some wood that I infer straddled the inside cabin space from the rear of the vehicle into the space normally available for a passenger in the front left portion of the cabin. She was asked to describe the quantity of the wood and she referred to it as a lot of wood coming into the front seat. She could not say whether or not the wood was loose because she said she did not take much notice of it.

Miss Taisanthiah described the prevailing conditions as being dark with slight rain. She agreed that at the commencement of the journey she and the Defendant had been chatting but she denied they were chatting at the time the vehicle approached the scene where the collision occurred. She went on to describe how, as the Defendant's vehicle approached the scene she observed the Defendant's speed to be below 70kph. She had discerned this from looking at the speedometer. She said that as the vehicle travelled north on Wilfred Barrett Drive she saw the Plaintiff's vehicle parked near the 70kph speed limit sign. She could not give a more precise description than this for the location of the Plaintiff's parked vehicle.

The photographs tendered in evidence show that the 70kph speed limit sign was on the left side of the road facing northbound traffic. She stated that she saw that the rear red lights were on the Plaintiff's vehicle. In my view her evidence in this regard is of little assistance in determining the issue as she did not observe much detail at all as is apparent from her answer when. She was asked to describe what happened:- "Q. As the car you were travelling in approached the place where the car was parked, did anything happen? A. INTERPRETER: All I saw was a shadow or shape come out suddenly and there was a bang. It happened so fast.

Q. Are you able to tell his Honour now how close the car you were travelling in was to the place where the car was parked when you noticed that sudden movement? A. INTERPRETER: I'm not really sure, but probably about three metres."

The little detail Miss Taisanthiah gave in her evidence as to her estimation of what distance constituted 3m was followed by a good deal of confusion. When asked to point out what she meant by 3 metres she eventually described the width of the court room which, it was later agreed by the parties, measured 14.5m. Miss Taisanthiah said she was not sure whether 3m was the same measurement she was used to in Thailand. Her evidence on this issue was surprising because she was the holder of a current driver's licence at the time she gave evidence although this was not the case at the time of the collision on 10 June 2004. After making due allowance for the difficulties of making distance comparisons within the confines of a court room, this evidence nevertheless caused me to entertain significant doubts over the reliability of Miss Taisanthiah's stated observations.

Miss Taisanthiah initially gave evidence that she did not see an indicator light on the Plaintiff's vehicle which is not necessarily the same as saying there was no indicator light flashing and available to be seen.

In my view it is not surprising that Miss Taisanthiah did not see a flashing indicator light on the Plaintiff's vehicle having regard to the fact that her vision was directed to the Defendant's speedometer whilst she was observing the speed of the Defendant's vehicle. I find that in these circumstances she would have had very limited if any opportunity to see whether the indicator light was operating on the Plaintiff's vehicle.

Her evidence was that her first observation of the Plaintiff's vehicle was seeing it parked on the side of the road. Her next observation of the Plaintiff's car was when it had pulled out and was just in front of the Defendant's vehicle and just before a collision occurred between the two vehicles. This is confirmed by the following passage from her cross-examination: "Q. … … Is the situation this that you weren't paying much attention to what was going on outside the vehicle as you sat there being driven along home by Mrs Dunleavy, is that right? A. INTERPRETER: The only thing I noticed was noticing a white car parked with it's lights on near the 70 sign coming home and then it pulled out with a loud bang and I, I said shit."

I observe that the evidence does not disclose any particular reason for Miss Taisanthiah to have maintained a state of alert observation during the journey to the point of the collision, as she was not the driver of the vehicle. Further, she was in the company of her friend and work colleague who was driving. The evidence does not disclose a basis for any apparent concern or discomfort, if any, she may have had over the Defendant's driving such that as a passenger she felt the need to be unusually vigilant. Although she may have had some concern over the presence of a load of wood in the vehicle, in the absence of specific evidence from her of a concern to this effect, I am not prepared to infer that this represented a cause for concern for her which required that she was unusually vigilant to her surroundings during the journey.

From the sequence of events described by Miss Taisanthiah I find that she did not see whether or not the indicator was operating on the Plaintiff's vehicle. I find that she did not see the entire course of movement of the Plaintiff's vehicle across the path of the Defendant's vehicle after it had moved from its stationary position into the pathway of the Defendant's vehicle until an instant before the two vehicles collided. This probably explains why Miss Taisanthiah exclaimed in the manner she described in the passage quoted from her evidence.

I find that for a number of indeterminate seconds before the collision Miss Taisanthiah was not looking at the roadway ahead but was instead looking towards the dashboard and the speedometer of the Defendant's vehicle in order to enable her to make her observation of the speed at which the vehicle was travelling. In such circumstances she would not have been expected to have seen what was happening in the Plaintiff's vehicle after she had first caught sight of it in its parked position sometime earlier. This must have been the case for otherwise she would not have been able to make the observation she made of the speed of the Defendant's vehicle at this time.

Mr McIlwaine SC challenged the evidence of Miss Taisanthiah and suggested to her, as he was obliged to do, that the Plaintiff's vehicle had its right indicator flashing when she first saw that vehicle by the side of the road. That suggestion was vehemently denied by Miss Taisanthiah in the following exchange: "Q. I want to suggest to you that when you first saw the vehicle stationery (sic) on the side of the road ahead of you, its right hand indicator was flashing. A. INTERPRETER: No it didn't have its blinker on - it's indicator on.

Q. And I want to suggest to you that when you saw the vehicle just before the collision it had its right indicator flashing. A. INTERPRETER: No"

I do not accept Miss Taisanthiah's denial concerning the Plaintiff's right indicator because her denial is inconsistent with her earlier quoted testimony that all she saw was a shadow, a white car or a shape come out suddenly from the parked position.

I find as a fact that she did not have an opportunity to make the observation concerning the state of operation of the blinkers on the Plaintiff's vehicle because her attention had been distracted by viewing the speedometer on the Defendant's vehicle. It may have also been possible that she had a concern for her own comfort and welfare due to the presence of the pieces of wood that were intruding into the front passenger space within the cabin of the vehicle, which could serve to explain why she felt the need to check the speed of the Defendant's vehicle as it negotiated the curve. I will not speculate further on this point and instead I will confine my analysis to the detail of Miss Taisanthiah's evidence.

I find that Miss Taisanthiah did not see an indicator operating on the Plaintiff's vehicle notwithstanding that it was there to be seen to be operating had she been looking long enough in the direction of the Plaintiff's parked vehicle when that vehicle came into her view.

I then turn to an examination of the evidence of the Defendant on the issue of the operation of the Plaintiff's right indicator.

The Defendant had her attention drawn to Mrs Ginnbert's evidence in which Mrs Ginnbert stated she had seen the Plaintiff's indicator. The Defendant repeatedly, emphatically and with some indignation denied that the Plaintiff's vehicle was showing an operating indicator. The Defendant became upset when Mr McIlwaine suggested to her that her denial was untruthful.

The Defendant was asked whether she would have acted differently if she had seen the Plaintiff's right indicator as she approached. She stated that had she seen the Plaintiff's indicator she would have slowed down.

The Defendant was asked whether there was a gap between the time she first saw the Plaintiff's vehicle and the moment before impact. The implication of that question was that the Defendant had not seen the Plaintiff's vehicle in the intervening time. The Defendant's response was that "the accident happened very, very quickly". She repeated her evidence that the collision occurred when her vehicle was almost, if not level with the Plaintiff's stationary vehicle. The extract of her evidence on this point was: "Q. Well, according to you, you were almost, if not level, with the back of the stationary vehicle very close to it. That's what you say isn't it? A. Yes."

I find the Defendant's answer to the foregoing question to the effect that her vehicle was almost level with the back of the Plaintiff's vehicle when the Plaintiff's vehicle pulled out to be palpably wrong. This is so because if the answer were to be correct there would have been an insufficient amount of time for the Plaintiff to have entered onto the bitumen carriageway portion of the roadway, in the course of her U-turn manoeuvre and into a collision path with the Defendant's approaching vehicle so as to cause the damage that is evident in the photographs tendered.

On the Defendant's version cited above the collision would simply not have occurred. This view is confirmed by the effect of evidence from Mr Jamieson whose evidence I accept as to the time taken for the Plaintiff to have moved off and to have commenced a U-turn manoeuvre to place herself in the position where impact probably occurred. His evidence was, some 3 to 4 seconds were required for this, depending on the road surface, the estimate of about 3 seconds being applicable to a bitumen road surface which was the case here. On an acceptance of that evidence from Mr Jamieson the Defendant's evidence on this point must be wrong, at whatever speed she was driving in the proffered range of between 60kph to 70kph. Either way, on the Defendant's account, the collision simply would not have occurred in the manner she described as is apparent from the analysis that follows.

Having regard to Mr Jamieson's evidence as to turning times, which I accept, it would take about 3 seconds for the Plaintiff's vehicle to get to the likely position for impact during the partly executed U-turn. In that period of about 3 seconds, at 60kph or 16.7m per second the Defendant's vehicle would have travelled over a distance of some 50m if not slightly more. At 70kph or 19.4m per second the Defendant's vehicle would have travelled some 58m in 3 seconds. Either way, on that analysis, the Defendant's vehicle could not have been level with the rear of the Plaintiff's vehicle as that vehicle pulled out in front of the Defendant as was alleged by the Defendant. In my view it therefore follows that the Defendant's account of the event as she described it must be wrong.

The Defendant's improbable answer to the effect that she was almost level with the rear of the Plaintiff's vehicle when the Plaintiff's vehicle turned leads me to the view that the Defendant has incorrectly reconstructed her evidence concerning the events leading up to the collision. I am reinforced in this view because of the answer given by the Defendant in cross-examination, when it was put to her that the Plaintiff's indicator was flashing when the Defendant was at least 90m from the point of impact she stated: "A. I'm not aware of what 90 metres is. But the blinker was definitely not on."

That evidence has also led me to doubt the correctness of the Defendant's account of the events. This has led me to the conclusion that the evidence given by the Defendant concerning the events leading up to the collision was based on unreliable reconstruction on her part rather than actual recollection of the events.

I regard the divergence between the evidence of Mrs Ginnbert and the Defendant as to whether or not they had a conversation after the collision, including the content of such an alleged conversation to be of little, if any, relevance to the factual issues that I have to decide. The Defendant alleges Mrs Ginnbert had told the Defendant that in her opinion the collision was not the fault of the Defendant. In my view Mrs Ginnbert could not possibly have been in a position to form a view concerning fault. I therefore accept Mrs Ginnbert's denial of the conversation and I reject the Defendant's testimony to the contrary.

The Defendant said she had been a licensed driver for some 15 years prior to the collision. In that context the Defendant's answer to the effect that she did not know what distance represented 90m was, in my view, somewhat disingenuous. In my view her answer was offered in an off-hand manner in an attempt to deflect the question but at the same time to gratuitously advocate for her position that the blinker on the Plaintiff's vehicle was not on. I find her evidence concerning the Plaintiff's blinker to be unconvincing and lacking in credibility.

In the light of what I consider to be the Defendant's incorrect reconstruction of the events leading to the collision I do not accept her evidence that the Plaintiff's indicator was not on. I come to this view because I do not believe the Defendant to have had a clear and accurate recollection of the events leading to the collision and I believe she has adopted an incorrect reconstruction of events which has led her to give mistaken evidence.

If it were otherwise she should have been able to describe the behaviour of the Plaintiff's vehicle over the course of her approach towards the Plaintiff's vehicle over the last 90m or so before the impact, assuming she had been keeping a proper lookout to the roadway ahead at that time. In my view maintaining a proper lookout would have included continuing to make observations of the Plaintiff's vehicle parked on the roadside cycleway ahead of her and it would have included observing the detail of the flashing status of the Plaintiff's right indicator light.

I find that the Plaintiff's right indicator was on and flashing and was available to be seen throughout the interval of time during which the Defendant approached the collision site. I find that the reason the Defendant did not observe the operation of the Plaintiff's indicator is that she was not keeping a proper lookout as she approached the scene where the collision occurred.

Speed of Defendant's vehicle as it approached the scene of the collision

The curve in question was the subject of a 70kph speed zone as is evident from the photographs tendered.

The evidence concerning the speed at which the Defendant's vehicle approached the scene of the collision came from a number of sources. I will examine the various accounts given in the evidence.

In the Defendant's statement given to the police on the evening of the collision she said her speed was between 60kph and 70kph. In her oral evidence in chief the Defendant stated that she was travelling at 60kph. The Defendant sought to reconcile the variation between the two accounts she gave of her speed by saying that as to the speed of 60kph it was her practice to drive at 10kph below the speed limit when the roadway was wet, as was the case at the time of the collision.

She also stated that when she was interviewed by the investigating police for the purpose of obtaining her statement, she claimed that she was told to nominate the approximate range of the speed at which she was travelling. Having heard the evidence of Senior Constable Baird concerning the manner in which he obtained Mrs Ginnbert's statement, and accepting that evidence, I infer that the same procedure was adopted in relation to the circumstances in which the Defendant's statement was obtained, namely by question, answer and prompting for detail.

The issue of whether or not the Defendant applied her brakes before the collision is of relevance to her speed. In her oral evidence the Defendant gave some confused and contradictory evidence concerning whether or not she applied her brakes. In her statement to the police she stated she had no time to brake or do anything before the collision. In her evidence in chief the Defendant's evidence on the issue of brakes was as follows: "Q. Now, when you first saw that car, did you do anything? A. I moved over slightly to the double yellow lines, just out of courtesy, in case the driver was getting out of the vehicle.

Q. And did you proceed along the road towards the car? A. Yes.

Q. Now, at some stage did something happen in relation to that car? A. It pulled out in front of me.

Q. And where were you in relation to it when it pulled out in front of you? A. I was basically just behind it but in my lane.

Q. And what did you see when it pulled out in front of you? A. I saw it in front of me.

Q. And are you able to say at what angle it was to your car when you saw it in front of you? A. No.

Q. When you saw it in front of you, did you do anything? A. I put on my brakes.

Q. When you saw it in front of you, did you do anything? A. I put on my brakes.

Q. Did something happen? A. There was a collision, yeah.

Q. Are you able to say when in relation to the collision you actually got your foot on your brake? A. Sorry, can you repeat the question?

Q. Yes. Are you able to say when in relation to the occurrence of the vehicle collision you got your foot onto the brake? A. It really happened very quickly.

Q. What happened very quickly? A. The accident happened very quickly.

Q. So are you able to answer my question? A. I'm not 100% sure, but I did put on the brakes.

Q. What happened after the collision? A. We just slid across the other side of the road.

Q. In what manner were you applying the brake? A. As hard as I possibly could."

In cross-examination the following question and answer raised an inconsistency in the evidence of the Defendant in relation to the application of the brakes. At one point she said she did not brake, at another point she retreated from the issue and at another point she was not sure. In this regard her evidence was: "Q. Ms Dunleavy, do I understand this to be the situation? And may I read to you what you said in your statement, exhibit 16. "I had no time to brake or do anything". Now is that correct, you did not brake at any time before the impact? A. I said I'm not 100% sure."

The Defendant was cross-examined about whether she had taken her foot off the accelerator at any time between first seeing the Plaintiff's vehicle and colliding with it. Her answers were qualified and uncertain. They lead me to the view that the Defendant did not reduce her speed at all before the collision. Her evidence in this regard related to the hazard posed by the Plaintiff's stationary vehicle: "Q. So it was a potential hazard, wasn't it? A. A potential hazard?

Q. Yes? A. A potential hazard for me to knock her door off?

Q. That would be a potential hazard - the vehicle posed to you a potential hazard because you may have collided with the door if it was open? A. Yes.

Q. Yet you did not take your foot off the accelerator, did you, at any time between first seeing that vehicle and colliding with it? A. Sorry, can you say the question again?

Q. You did not take your foot off the accelerator at any time between first seeing the vehicle stationary and colliding with it? A. As I said before to you, I'm not 100% sure, it really happened very quickly.

Q. Let's accept for a moment that you're not 100% sure, if you did, it was at the last instant before the impact, wasn't it? A. Yes.

Q. And if you did brake, it was at the last instant before impact? A. Yes."

In view of the content of the Defendant's statement to the police in which she stated she had no time to brake and in view of the confused manner in which she gave her evidence as to the timing of application of the brakes and having regard to the inconsistency within her evidence on this issue I do not accept that the Defendant applied the brakes at any time before the collision. I find that her statement to the police is more likely to be the correct version of events. It may well be that she attempted to apply the brakes after the collision but in my view she did not reduce her speed by braking or deceleration before the collision. The consequence of this finding is that the speed of the Defendant's vehicle was likely to be constant as she approached the collision site.

The Defendant's passenger Miss Taisanthiah who was seated in the middle front seat of the Defendant's vehicle stated that she observed the needle on the speedometer of the Defendant's vehicle to read below 70kph. Miss Taisanthiah's vantage point was that she was seated in the middle of three seats in the front of the Defendant's vehicle. As such she was in a position where she ought to have been able to see the speedometer needle. According to the evidence of Mr Stuart-Smith, whom I accept on this issue, Miss Taisanthiah's observation of the speedometer needle, which was probably in the ten o'clock position, would have been likely to have been affected to some degree by the phenomenon of parallax error. Accordingly, Miss Taisanthiah's observation of the speed indicator needle would suggest a speed below 70kph. Miss Taisanthiah's evidence, taken together with the parallax error factor would suggest that the Defendant's speed was more towards 60kph but less than 70kph.

The expert witnesses sought to reconstruct the Defendant's impact speed by reference to the damage to the vehicles. Mr Jamieson estimated the Defendant's speed at impact at about 65kph. Mr Stuart-Smith estimated the Defendant's speed at impact as somewhere in the range 50kph to 65kph, probably at the higher end of that range. Whilst recognising these calculations are nothing more than a considered range of estimates they are of some assistance to me in cross-checking the Defendant's own evidence as to her speed. In this regard, again whilst recognising that the experts were speaking in terms of a range of estimates, other than allowing for the fact that this evidence establishes a range, I find no relevant, glaring or irreconcilable inconsistency between the evidence of the experts and the evidence of the Defendant on the issue of her speed.

I find that at the time the Defendant entered the curve of Wilfred Barrett Drive her vehicle was travelling at a speed of 60kph. I find that from the time the Plaintiff's vehicle first came into the view of the Defendant, the Defendant did not apply her brakes or decelerate at all and continued to approach the Plaintiff's parked vehicle at the speed of 60kph even up to the point of the impact between the two vehicles.

Point of impact identified by a process of inference, not evidence

The available evidence does not identify with any degree of precision the actual location of the Plaintiff's parked vehicle before it moved off into the U-turn manoeuvre and to the point where the two vehicles collided.

Just before the collision site the roadway comprised a sweeping left bend in the northbound lane of Wilfred Barrett Drive.

There is no objective evidence that identifies a point of impact on the roadway. There is no evidence that locates debris or skid marks on the roadway which could provide some guidance for inferring the position where the vehicles collided and therefore the commencement point for the movement of the Plaintiff's vehicle.

The absence of such evidence requires that I attempt an evaluation of the factual and expert evidence to determine whether or not it is reasonably open to infer the position of the respective vehicles at the point of impact.

It is necessary that I undertake this analysis in order to attempt to arrive at an estimation of the distance over which the Defendant travelled between the time the Plaintiff's vehicle first came into her view and the point where the vehicles collided.

Distance over which the Defendant ought to have seen the Plaintiff's vehicle

In the absence of precise evidence identifying the position where the Plaintiff's vehicle was parked by the roadside I have to undertake an examination of the evidence to determine whether that position can be reasonably inferred. This is necessary in order to determine whether the expert crash analysis opinions are of any assistance to my determination of the remaining issues to be decided in the case.

I commence with an examination of the available evidence to ascertain an approximate position of the Plaintiff's parked vehicle before she turned and entered the roadway. The products of such an examination may then enable an approximation of the distance over which the Defendant ought to have first seen the Plaintiff's vehicle.

First level of analysis -observations of the position of the Plaintiff's parked vehicle

There are a number of intersecting points of reference in the evidence that permit an approximate position of the Plaintiff's parked vehicle to be identified.

Mrs Ginnbert stated that when she saw the Plaintiff's vehicle it was parked at a point before, that is to the south of, the 70kph speed limit sign. She was unable to say how far north of the Plaintiff's parked vehicle that sign was situated.

The Defendant stated that she first saw the rear of the Plaintiff's vehicle as the Defendant was driving on the bend in the roadway. She described the Plaintiff's vehicle as being parked on the bitumen with its red tail or brake lights on at the back of the vehicle. The Defendant was not able to say how far away her own position was from the Plaintiff's vehicle when she first saw it. She said she was not good with distances. For example, she could not relate to the distances that were put to her in cross-examination, namely 90m, 100m or 20 car lengths as the distance over which she had the Plaintiff's vehicle in view as she approached it. Since the Defendant had been a driver of some 15 years experience I find it difficult to accept her evidence in this regard. At no stage did the Defendant identify the position of the Plaintiff's parked vehicle in relation to the 70kph speed limit sign which was indisputably located on the left side of the roadway.

Miss Taisanthiah stated that she saw the Plaintiff's car parked on the side of the road near the 70kph speed limit sign. She later clarified that evidence to mean that the Plaintiff's car was in front of, meaning before or to the south of, that sign. She was unable to say how close the Plaintiff's vehicle was parked to that sign because she said she did not take notice of it.

In summary, the most that can be gleaned from a synthesis of the combined evidence of Mrs Ginnbert, the Defendant and Miss Taisanthiah on the issue of the location of the Plaintiff's parked vehicle is that the Plaintiff's vehicle was parked on the left side of the roadway, on the bitumen cycleway at an indeterminate position south of the 70kph speed limit sign.

Second level of analysis -measurements and estimates by the expert witnesses

I have carefully examined the reports and the evidence of Mr Jamieson and Mr Stuart-Smith. Without direct evidence, each of these experts have made assumptions concerning the position of the Plaintiff's stationary vehicle before it commenced to make the U-turn. Their reports do not include any accurate measurements concerning the distance over which the Defendant ought to have seen the Plaintiff's vehicle.

Mr Jamieson has assumed that the Plaintiff's vehicle commenced to make a U-turn from a point about 25m to 30m south of the ultimate resting position at which the vehicles were found. That position was more or less in line with the 70kph speed limit sign. He based that opinion on five basic assumptions.

The first assumption concerns the accuracy of the diagram prepared by Senior Constable Baird. That diagram shows that the resting place of the vehicles was approximately in line with the 70kph speed limit sign but on the opposite or north-eastern side of the roadway. The second is the assumption that the Plaintiff's vehicle was making a U-turn at the time of the collision. The third assumption was that the Defendant's vehicle did not significantly reduce its speed. The fourth assumption was the correctness of his calculation concerning the resolution of forces involved in the collision that "bulldozed" the Plaintiff's vehicle by which he inferred an approximate point of impact. The fifth assumption was the very close proximity of the point of impact to the position of the Plaintiff's parked vehicle before the U-turn commenced.

Mr Jamieson's calculation of the forces that "bulldozed" the Plaintiff's vehicle included some further assumptions. These were an assumed coefficient of friction on a wet roadway which was not challenged; the known masses of the vehicles, apparently making no allowance for the weight of the occupants which was also not challenged as being a significant variable and inferences drawn from the resting place of the vehicles. He also assumed that the calculated speed of the Defendant's vehicle at the time of impact was about 65kph without significant braking having occurred prior to the impact.

I accept Mr Jamieson's assumptions, method and his resultant analysis as reasonable and correct subject to one qualification, namely the speed variable of 65kph in respect of the Defendant's vehicle which in turn affects the estimation of the Plaintiff's parked position. That estimate has to be reconciled with my finding that the Defendant's speed at the time of the impact was 60kph.

It becomes necessary to determine whether the changed speed assumption of 60kph rather than Mr Jamieson's assumption of 65kph is likely to result in a significant variation in his opinion as to the likely position of the Plaintiff's parked vehicle at the point where it commenced the U-turn. I must attempt to determine this issue myself since the 60kph speed assumption was not offered through expert evidence as an evidentiary alternative to Mr Jamieson's assumption of 65kph. I approach the matter broadly, doing the best I can with the available evidence.

In this regard, my approach to reaching a conclusion as to the likely distance the Defendant's vehicle "bulldozed" the Plaintiff's vehicle is based on a 60kph assumption and on a most rudimentary common understanding of Newtonian physics if not Euclidean mathematics. This does not necessarily require expert evidence. Clark -v- Ryan [1960] 103 CLR 486 per Dixon CJ at 491 citing R -v- Parker (1912) VLR 152 per Cussen J at 160. In this regard I assume that the greater the velocity of a force when applied to a known mass the greater will be the distance over which that mass will be moved as a result of the application of that force.

On an acceptance of the validity of the foregoing premise I start with the proposition that the Defendant's vehicle, travelling at 60kph rather than at 65kph as was assumed by Mr Jamieson, is likely to have "bulldozed" the Plaintiff's vehicle as Mr Jamieson put it, a lesser distance than the 25m to 30m which, according to Mr Jamieson's calculations, would have been the case if the Defendant had been travelling at 65kph. I take this commonsense approach to the analysis as I am uninstructed on this specific matter through expert opinion. Adelaide Stevedoring Co Ltd -v- Forst [1940] 64 CLR 538.

In developing this broad analysis without the assistance of expert calculations, in round figures, it would appear that the difference between 65kph and the lesser speed of 60kph is a reduction of the order of 8%. Applying this percentage reduction to Mr Jamieson's estimate of 25m to 30m, which was based on a 65kph assumption as to speed, this reveals a roughly revised range of 23m to 27.5m as the distance over which the Plaintiff's vehicle was likely to have been "bulldozed" by the Defendant's vehicle in the collision. This revised range is based on a 60kph assumption that reflects my finding as to the Defendant's speed on her approach to the collision.

On this rough comparative methodology I find that the difference in the assumed speed of the Defendant's vehicle from 65kph down to 60kph to be of little overall significance to Mr Jamieson's general conclusions as to the position of the Plaintiff's vehicle before the U-turn commenced. I find that this process of comparison enables me to more confidently rely upon Mr Jamieson's estimate of the "bulldozed" distance. To reflect the slightly changed speed assumption, recognising that this is not a methodology of mathematical precision, I round the estimated distance down to 25m to establish a reference point to assist with the estimation of the distance over which the Defendant ought to have seen the Plaintiff's vehicle.

I find therefore that the front of the Plaintiff's vehicle was parked about 25m to the south of the 70kph speed limit sign located at the scene of the collision.

I propose to examine whether this conclusion provides a reliable point of reference that enables me to arrive at an estimation of the distance over which it would have been likely that the Defendant ought to have been able to see the Plaintiff's vehicle after the Defendant's vehicle entered the curve in the roadway.

Third level of analysis - distance over which Plaintiff's vehicle ought to have been visible to the Defendant as the Defendant's vehicle entered the curve.

Mr Jamieson did not measure the distance from the Defendant's assumed point of first sight of the rear of the Plaintiff's vehicle and the approximate point of impact. An approximation of that measurement was provided by Mr Stuart-Smith whose report dated 6 June 2008 was admitted into evidence as Exhibit "17".

Figure 4 in Exhibit "17" consists of a sketch plan of the scene that was drawn to scale by Mr Stuart-Smith. In his report Mr Stuart-Smith has assumed that the front of the Plaintiff's vehicle was parked about 30m to the south of the 70kph speed limit sign. He has also assumed that the point of rest of the vehicles after collision was about 30m to the north-east of that point. Mr Stuart-Smith's diagram also shows that the Defendant ought to have had at the very least a 90m of view of the roadway to the left which included a view of the rear of the Plaintiff's vehicle on the approach to the point of impact. At page 18 of Exhibit "17" Mr Stuart-Smith also described that distance to be about 100m which is obviously more than 90m.

Given my finding that the Plaintiff's vehicle was parked 25m south of the 70kph speed limit sign it would seem that the distance over which the Defendant ought to have been able to see the rear of the Plaintiff's vehicle would have been a little more than 100m. Whilst the evidence does not permit the measurement of this distance with accuracy it is important to consider the factors that influence the estimation of that distance.

The aerial photograph comprising Exhibit "8" is not entirely helpful to an understanding of the Defendant's likely line of sight towards the position where the Plaintiff was parked because that photograph does not show the position of Wyuna Avenue to the north or Mini Street to the south. Figure 3 within Exhibit "D" shows a much longer line of sight but unfortunately the scale of that photograph is not identified so it is not possible to obtain any approximate measurement from that exhibit. From the aerial photographs it would appear to me that the Defendant had a greater line of sight than the 90m to 100m as was suggested by Mr Stuart-Smith in Figure 3 of Exhibit "17" even though the scale of that aerial photograph has not been identified. I come to this view following a consideration of the invalidity of Mr Stuart-Smith's assumption regarding the state of the roadside vegetation at the time of the collision and the line of sight inference that follows from such invalidity.

Mr Stuart-Smith provided an approximate measurement from the point where the curve of Wilfred Barrett Drive began to the point where the 70kph speed limit sign was situated, namely "about 150 metres" as is evident from page 10 of Exhibit "17". Within that measurement of about 150m he provided an estimate of the distance from which the Defendant ought to have seen the rear of the Plaintiff's vehicle, namely "about 100 metres". He gave that estimate on two assumptions, namely that the Defendant's vehicle was in the centre of the lane and the roadside vegetation was similar to that observed on the occasion of his inspection of the scene on 29 May 2008.

There is no difficulty accepting the reasonableness of the first assumption however I find that the second assumption concerning the thickness of the vegetation requires some significant qualification in view of the evidence of Mrs Ginnbert, which I accept.

In this regard Mrs Ginnbert's evidence was to the effect that at the time of the collision the vegetation on the western side of the roadway was not as thick as it appeared to be in the photographs taken in 2007. She was taken to Figure 3 on page 6 of Exhibit "D" where the following sequence of question and answer was recorded: "Q. So does that help refresh your recollection that there was like a screen of bush between the road and the caravan park at least in the place where the Lancer was stationary beside the road? A. It wasn't that thick. The bushes wasn't that thick. It wasn't that healthy looking."

Further, on the same topic Mrs Ginnbert was taken to Figure 4 on page 7 of Exhibit "D". The following sequence of questions and answers was recorded: "Q. Now it shows foliage on the western side of the road, is that right? A. Yes.

Q. Would you agree that foliage like that was present on 10 June 2004? A. Not exactly like that. But there was foliage there yes.

Q. Might have been there but hadn't grown quite as much? A. That's right.

Q. But it was still present beside the road, is that right? A. Yes."

On the basis of the above extracts from the evidence of Mrs Ginnbert, I find that the roadside vegetation on the left or western side of the road was not as dense as is portrayed in the more recent 2007 and 2008 photographs within Exhibit "D", Exhibit "17" and Exhibit "8" compared to how the scene appeared on 10 June 2004.

The extent of the changed appearance of the roadside vegetation is quite marked, as is evident from Mrs Ginnbert's evidence concerning Figure 5 on page 8 of Exhibit "D" which makes the point, which I accept, that the view to the north of the accident scene as taken in the 2007 photograph shows the 70kph speed limit sign to be partially obscured by roadside vegetation. Mrs Ginnbert's evidence was that on 10 June 2004 the foliage did not prevent a view of the entrance to the caravan park. The forensic significance of that evidence is more readily appreciated when one takes a more macro view provided by the aerial photographs, namely, Figure 3 on page 11 of Exhibit "17", Figure 3 on page 6 of Exhibit "D" and Exhibit "8". The following extract from Mrs Ginnbert's evidence demonstrates the point: "Q. And for instance in photograph 4 and also in - I'm sorry, figure 4 page 7 and figure 5 page 8 you just can't see the entrance to the caravan park around the bend, can you? A. No.

Q. No and that's because, apart from anything else, one of the reasons why you can't see it is because the foliage is in the way? A. Yes.

Q. And it'd be fair to say, wouldn't it, that from the entrance to the caravan park on 10 June 2004 you wouldn't have been able to see back all the way to where the Lancer was parked, would you? A. Yes because the - it wasn't that thick and you could see the entrance to the caravan park.

HIS HONOUR: Mr Campbell, I suppose one of the reasons one can't see the entrance to the caravan park in figure 4 could be the position on the roadway form (sic for from) which the photograph was taken. CAMPBELL: Yes, your Honour. That's entirely possible, your Honour.

Q. As I said, one of the reasons why you couldn't see it perhaps was because of the foliage. Now-- A. Can I please say I drove on that road at least four or five times a week and I could see. When I was driving down the road I could see the entrance to the caravan park."

Taking Mrs Ginnbert's evidence as to her description of the foliage as it appeared in June 2004 compared to the appearance of the foliage in the later photographs, in conjunction with the evidence of Mr Stuart-Smith, I understand Mrs Ginnbert's evidence to mean that the Defendant's view of the rear of the Plaintiff's vehicle was far less obscured by the density of roadside foliage than is evident from the more recently taken photographs. I accept Mrs Ginnbert's evidence in this regard. This leads me to find that because at the time of the collision the roadside vegetation was less dense than when later seen and photographed, the Defendant's line of sight to the rear of the Plaintiff's vehicle would have been significantly more than, and at the very least, 100m on the day of the collision.

By a process of sequential deduction from the available estimated measurements provided by Mr Stuart-Smith it would appear that in the course of the Defendant's journey of about 150m starting from her entry into the curve and proceeding towards the 70kph speed limit sign, I find that the Defendant ought to have seen the rear of the Plaintiff's vehicle at a point about 120m south of the 70kph speed limit sign.

I come to this view because Mr Stuart-Smith's estimated distance of 150m is accounted for in the following sequential calculations of deduction, working backwards from the 70kph speed limit sign.

Using the 70kph speed limit sign as the zero point, the first deduction is 25m to represent the distance between the sign and the front of the Plaintiff's vehicle. The second deduction is 4.2m rounded off to 5m to represent the length of the Plaintiff's vehicle thus making a cumulative total of 30m. The third deduction is for what I consider to be Mr Stuart-Smith's conservative approximation of 100m line of sight, leaving a cumulative sub-total of about 120m.

When this sub-total is subtracted from the total estimated curve distance of 150m, by deduction I find that the point on the curve where the Defendant ought to have seen the Plaintiff's vehicle was at some point shortly after she entered the curve and probably towards the end of the first 30m of the Defendant's travel into the curve i.e. the 120m point.

In the 30m which provides the balance to account for the 150m estimate provided by Mr Stuart-Smith's measurements, the time the Defendant would have taken to travel that first 30m at 60kph or 16.7m/sec would have been about 1.79 seconds, say 2 seconds.

I find therefore that on the expiry of that time interval of 2 seconds the Defendant ought to have been alerted to the presence, position and flashing right indicator of the Plaintiff's parked vehicle.

The Defendant's evidence as to what she saw on her travel around the bend of the curve and thereafter is instructive on the question of whether or not she had kept a proper lookout as she continued her journey after first sighting the Plaintiff's vehicle. The following sequence occurred during cross-examination of the Defendant: "Q. I just want to make it clear what I'm putting to you, you've told us that as you come round the bend you see it ahead of you, right? A. Yes.

Q. Then I want to suggest to you after initially seeing it, being aware of it-- A. Yes.

Q. The next time that you saw that vehicle was when it was in the path of your vehicle on the roadway? A. Yes.

Q. And I want to suggest to you that the reason that you didn't continue to pay attention to the stationary vehicle in the cycle lane, between that time you first see it when you come round the sweeping bend and when it's in front of your vehicle on the roadway, is because you were not paying attention, you agree with that? A. I wasn't paying attention to--

Q. I'm putting to you that the reason you didn't see the vehicle, between when you first came aware of it and saw it as you come round the bend and the point when it was directly in front of your vehicle on the roadway, is because you were not paying attention? A. I wasn't looking at the vehicle to the left of me . Are you saying, not paying attention, I haven't got my eyes on the vehicle to the left of me, I'm not driving like this." (Emphasis added)

The above evidence suggests that although the Defendant initially saw the Plaintiff, and having seen her, she failed to maintain a proper lookout thereafter, until the instant before the collision.

Resolution of the distance over which the Defendant ought to have seen the Plaintiff's vehicle on the curve

On the foregoing analysis I find that it is more probable than not that the Defendant had a view of at least 100m if not 120m line of sight to the rear of the Plaintiff's vehicle at the first moment the Plaintiff's vehicle was available to be seen by the Defendant. I also find that over this distance the Defendant ought to have been able to see the Plaintiff's rear red lights as well as the flashing rear blinker lights on the Plaintiff's vehicle in the dark conditions, had she been keeping a proper lookout. I find therefore that the Defendant was not keeping and maintaining a proper lookout in the lead up to the collision.

Reconstruction of the events of the collision with the aid of expert evidence

Consequent upon my finding that at first sighting of the Plaintiff's vehicle the Defendant ought to have had a line of sight of at least 100m if not more, to the rear of the Plaintiff's vehicle, it becomes possible to estimate the likely time interval taken by the Defendant to travel over that distance from that first sighting opportunity up until the time of the collision. This is so because the Defendant's speed was a constant 60kph.

As the Defendant was travelling at 60kph or 16.7m/sec I find that, in round figures, she would have travelled the last 100m to 120m or so of her journey to the point of collision in about 6 or 7 seconds, assuming there was no braking.

The expert evidence provides some useful data which assists the analysis of how the collision occurred.

Having established that the Defendant had a line of sight to the rear of the Plaintiff's parked vehicle for at least 100m if not more, and having established that the Plaintiff's rear indicator was flashing whilst the Defendant approached the Plaintiff's vehicle, it becomes relevant to consider the expert evidence concerning normal driver behaviour and reactions in such circumstances.

Both Mr Jamieson and Mr Stuart-Smith were in general agreement that driver perception reaction time of 1.5 seconds was a reasonable assumption in the circumstances, namely an urban road at night. I accept that evidence.

Mr Jamieson and Mr Stuart-Smith were also in general agreement with the description of the process by which a driver would react to a potential hazard ahead namely, mentally processing the perception of the potential hazard and then implementing the appropriate reaction. I paraphrase this process to mean the driver reaches a state of driver alertness to be ready to take whatever physical action is required in the circumstances that may present themselves, whether this required deceleration, application of the brakes or taking an evasive course.

In the context of the evidence in this case, Mr Jamieson characterised the observation by an approaching driver of a right indicator on a parked vehicle to the left as requiring the approaching driver to become alerted so that the perception phase of the reaction time should, at that time, be significantly lowered so that reaction would quickly follow if required.

Mr Stuart-Smith's evidence on this point was that he would have expected an approaching driver in such circumstances to have had a heightened state of alertness on first seeing the indicator and possibly then decreasing the speed on approach. In my view, when properly analysed, there was no significant difference in their evidence on this point.

In view of this evidence I find that on first sighting the rear of the Plaintiff's parked vehicle it was the duty of the Defendant to have decreased her speed on approach. I find that her response in this regard should have been by way of an application of the brakes.

In my view, when the additional factor of a wet urban road is added into the mix of matters that a driver has to consider, this serves to shorten or at least minimise the required perception reaction time and emphasises the need to reduce speed, significantly so and on short notice. Without attempting to be exhaustive of the possibilities, drivers on urban roads are required to foresee the sudden appearance on the road of animals, persons, vehicles emerging from side roads, vehicles veering onto the incorrect side of the road as well as stationary parked vehicles executing U-turns ahead. More importantly, they are expected to drive in a manner and at a speed which enables them to react appropriately when a situation of danger or potential risk confronts them in the vicinity of their driving.

In my view, the Defendant had only partly discharged her duty by driving at 60kph rather than at the speed limit of 70kph on account of the wet road conditions.

In the circumstances of this case I find that when the Defendant entered the curve and reached the point where she ought to have had a line of sight to see the Plaintiff's parked vehicle the Defendant should have perceived the hazard posed by the flashing indicator on the Plaintiff's parked vehicle and reacted so as to reduce her speed on approach to the site where the collision ultimately occurred. On the basis of evidence given by Mr Jamieson and Mr Stuart-Smith I find that a 1.5 second perception to reaction time would have been reasonable and ordinarily achievable without panic in the Defendant's situation at that time. The expenditure of that interval of 1.5 seconds would have meant the Defendant would have closed the gap between her own vehicle and the Plaintiff's vehicle by 25m in those 1.5 seconds.

I find therefore that at the expiry of that interval of 1.5 seconds perception reaction time the Defendant would have been at least 75m and 95m away from the Plaintiff's vehicle. I find that at that time the Defendant ought to have slowed her speed significantly as she travelled over that distance in recognition of the potential risk that something untoward in the nature of a dangerous situation may occur in the vicinity on the roadway ahead.

In Manley -v- Alexander [2005] 80 ALJR 413 the duty of a driver to anticipate potential dangers was discussed by Gummow, Kirby and Hayne JJ at 415: "… Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require 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."

I find that from the moment the Defendant first saw the Plaintiff's parked vehicle the Defendant ought to have anticipated some activity emanating from the Plaintiff's vehicle within a range of possibilities. These included the possibility of someone alighting from the vehicle onto the roadway as well as the possibility of the Plaintiff's vehicle entering the northbound lane to travel north or, to possibly make a U-turn, as in fact occurred in this instance.

At some point during the Defendant's approach to the point of impact the Plaintiff's vehicle commenced to make a U-turn across the Defendant's path. That U-turn had not been completed before a collision ensued.

Having regard to the factors of the Defendant's constant speed of 60kph which had not been reduced at all by deceleration or by braking, the position of the Defendant's vehicle towards the centre of the road in the northbound lane, the fact that the Defendant did not swerve or change direction before the collision and given the location of the damage to both vehicles as shown in the photographs comprising Exhibit "1" and Exhibit "5" I find that the collision between the two vehicles occurred wholly within the northbound lane of the roadway.

Accepting Mr Jamieson's calculations for the time that would probably have been required for the Plaintiff to make a U-turn, as I do, I find that in order to make a U-turn the Plaintiff's vehicle would have moved from its stationary position to the point of impact in about 3 seconds. Over that time the Defendant's vehicle, which was still travelling at 60kph or 16.7m/sec, would have travelled over a distance of about 50m.

The question that still remains to be determined is at what point during the Defendant's approach did the Plaintiff commence to make her U-turn. An alternative formulation of the question is how far away from the Plaintiff's vehicle was the Defendant when the Plaintiff commenced her U-turn. A further alternative formulation of the question is how much time elapsed between the time the Plaintiff commenced to make her U-turn and the time when the collision occurred. These are all statements embodying the same issue and represent the imponderable issue that I am required to consider.

A significant impediment to the analysis required to resolve this issue is the limited nature of the descriptive evidence. The Plaintiff could not contribute to the resolution of the issue because she is unable to give evidence. I find that both the Defendant and her passenger Miss Taisanthiah cannot relevantly contribute to the resolution of the issue because of my earlier findings based on their evidence to the effect that the incident happened very quickly. From their descriptions it is clear they were not taking in the detail of events leading to the collision.

This still leaves me with the task of having to determine whether the collision was caused by a want of reasonable care, firstly, on the part of the Defendant and secondly, on the part of the Plaintiff.

I have already rejected as being improbable the Defendant's version of events in which she claimed that the Plaintiff's vehicle turned across her path at the moment her own vehicle was just about level with the rear of the Plaintiff's vehicle. The Defendant's vehicle was travelling at 60kph or 16.7m per second meaning that the collision could not have occurred in that manner.

This therefore leaves me to consider the logical inferences available to be drawn from the circumstantial evidence in order to conclude, on the balance of probabilities, what events occurred to cause the collision. TNT Management Pty Ltd -v- Brooks (1979) 53 ALJR 267 per Gibbs J at 269 citing Luxton -v- Vines (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at 358 which quoted from the decision of the High Court in Bradshaw -v- McEwan Pty Ltd (1952, unreported).

In approaching this task I am mindful of the requirement to avoid conjecture or guesswork and to arrive at conclusions based on inferences reasonably available from the evidence. Jones -v- Dunkel [1958-1959] 101 CLR 298 per Dixon CJ at 304 to 305.

To answer the question of whether or not the Defendant was negligent I first examine the sequence of what it was that the Defendant did and did not do in the lead up to the collision. This requires a review of her driving behaviour in the following sequence. (a) She drove her vehicle into a left curve at a speed of 60kph on a wet roadway at night. This was unremarkable and no criticism arises in respect of this stage of her driving.

(b) At a point somewhere between 100m and 120m from the rear of the Plaintiff's vehicle the Defendant was in a position to have been able to see the Plaintiff's vehicle, its red rear lights and its right flashing indicator. I find that in those circumstances reasonable care on her part required that at that time she ought to have heightened her level of alert to a potential hazard ahead and reduce her speed after the lapse of 1.5 seconds or 25m of travel, allowing for a reasonable lapse of time for perception and reaction time. In contrast, her response was in effect, no response, in that she did not reduce her speed at all, either by braking or taking her foot off the accelerator as she approached the Plaintiff's vehicle. At that point she would have been at least 75m to 95m away from the Plaintiff's vehicle if not more and she continued to approach it at the speed of 16.7m per second.

(c) During the entire duration of her approach to the collision point the Defendant did not see the Plaintiff's right indicator flashing. I find this represented a failure on the part of the Defendant to keep a proper lookout.

(d) Over the entire duration of her approach to the collision site she continued to travel at a speed of 60kph or 16.7m per second. The time required for the Defendant to drive over the last 75m to 95m before the point of collision was about 4.5 to 5.6 seconds. I find that during this time the Defendant ought to have maintained a state of alert preparedness to react quickly and decisively if road conditions ahead of her required this. In contrast, having regard to her previously cited evidence at transcript page 288, she failed to maintain a proper lookout as she approached the Plaintiff's vehicle. In my view this was a significant and pivotal departure from the required standard of care.

(e) In the time frame of the Defendant's approach to the Plaintiff's vehicle, which I find occupied a time frame of at least between 4.5 to 5.6 seconds the Defendant obviously apprehended that there was a risk that someone may alight from the driver's side of the Plaintiff's vehicle because it is clear that she accommodated that risk by positioning her vehicle closer to the centre of the road as "a courtesy". I find the Defendant's response in this regard was an alert recognition on her part that there was a potential hazard ahead. I infer from this that she had by this manoeuvre expended an interval of perception reaction time which I assume, aided by expert opinion, was of the order of 1.5 seconds. I also find that her action in moving her vehicle closer to the centre of the road was an inadequate response to the situation and this was a product of her earlier failure to observe the Plaintiff's right turn indicator. I find that on the basis of the Defendant's own evidence, had she seen the Plaintiff's indicator she would have slowed down, most probably by an application of the brakes. I find that had she done so she would have approached the Plaintiff's vehicle with a greater degree of caution and at a much lower speed which would have enabled her to either steer or swerve around the Plaintiff's turning vehicle as she approached it. Alternatively, this ought to have enabled her to stop before colliding with the Plaintiff's vehicle. (f) Instead, the Defendant continued on her journey without reducing her speed or flashing her headlights as a warning. I note that she had been flashing her headlights during the course of her journey beforehand. Neither did she sound her horn as a warning to the Plaintiff on her approach. In my view both of these measures were reasonable and prudent steps that she should have taken in the circumstances because, in my view she should have anticipated the possibility of the Plaintiff making a turn across her path. This would have been my view irrespective of whether or not the Plaintiff's right indicator was flashing, as the Defendant ought to have anticipated the presence of possible danger. Manley -v- Alexander (2005) 80 ALJR 413.

The question arises as to whether it was likely that a collision between the two vehicles would have occurred if the Defendant had been travelling at a slower speed.

The analysis of that question must start with a consideration of the response expected of a reasonable driver in the circumstances of the Defendant. I accept Mr Jamieson's view that as a minimum, if the Defendant had been keeping a proper lookout and had therefore seen the Plaintiff's right indicator flashing, she ought to have taken her foot off the accelerator straight away. Further, I find that in the prevailing conditions, namely on a wet road and in the presence of the Plaintiff's flashing indicator, the Defendant ought to have reduced the speed of her approach not only by taking her foot off the accelerator but also by the application of her brakes to continue her journey at a much lesser speed, in accordance with her duty to control her speed and direction of travel in such a way that she may know what is happening in the vicinity of her vehicle in time to take reasonable steps to react to those events. Manley -v- Alexander (2005) 80 ALJR 413.

If the Defendant did no more than decelerate and then even moderately apply her brakes to reduce her speed when the Plaintiff's vehicle first came into her view she would have maintained a state of alert and would have been able to react over the remaining 75m to 95m or 4.5 seconds or so of her journey. Had she progressively reduced her speed as she proceeded on her course for as long as there was a doubt as to what the Plaintiff's vehicle might do, she would have more probably than not required a longer time to reach the point of the ultimate collision. On Mr Jamieson's analysis, which I accept, if the Defendant had reached the point of collision 1 second later than when she did, the Plaintiff would have more probably than not have completed her U-turn and the collision would, on the balance of probabilities, not occurred.

I test this finding in the following way. If from what I find was at least 4.5 to 5.6 seconds that elapsed following the Defendant's reaction and perception time, a final second before the impact is subtracted from these times to represent the notional time required for the Plaintiff to complete her traversal of the northbound lane and cross over into the southbound lane to place herself completely clear of the approach of the Defendant's vehicle, this would have left at least 3.5 and 4.6 seconds during which time the Defendant ought to have maintained a heightened state of alertness and readiness to react to what was happening in the vicinity ahead.

The reasonableness of that one second assumption in the foregoing analysis can be tested as follows. The Plaintiff's vehicle was 4.2m long. Even on Mr Stuart-Smith's slow speed turning assumption of 20kph, which I accept for the purpose of this analysis, this means the Plaintiff's vehicle would have been travelling at 5.5m per second as she was turning and at the time she was struck. To clear the northbound cycleway of 2.5m and the northbound bitumen carriageway of 3.5m, a total of 6m of roadway or a fraction over a second was required for the Plaintiff's vehicle to be clear of the path of the Defendant's vehicle. Thus must be so because the Plaintiff's vehicle had already turned across the Defendant's path.

In my view this analysis of the period of some 3.5 to say 4.5 remaining seconds or so represented ample time for the Defendant to achieve and maintain a slower speed of approach and was ample time in which to take quick and decisive action to either stop, brake further or steer a difference course but in either case, avoid a collision.

Although the actual moment when the Plaintiff's vehicle moved off and commenced to turn cannot be determined with precision, I infer from the fact that the Defendant had not taken any steps to reduce her speed from the time of her entry into the curve where she could see the rear lights of the Plaintiff's vehicle, that in those 3.5 to 4.5 seconds the Defendant had no apprehension of the possibility that the Plaintiff's vehicle may turn across her path. This would have been the case over the last 58m to 75m or so of the Defendant's approach at 16.7m per second. This confirms my view that the Defendant was in breach of her duty of care, as explained in Manley -v- Alexander (2005) 80 ALJR 413, as 58m to 75m is in my view ample distance in which to avoid a collision in those circumstances. If the Plaintiff had been travelling at a lesser speed then these distances would have been greater and the opportunity for collision would have been less.

The duty of care owed by the Defendant included the ability to be ready to quickly assess and implement a reactive response to a dynamic situation of risk. I find that the Defendant did not discharge her duty in that regard. Instead she failed to keep a proper lookout and therefore deprived herself of the ability to make an appropriate response to the situation that confronted her during her journey over the 100m to 120m she drove from the point where she ought to have seen the Plaintiff's flashing right indicator to the point where the vehicles collided.

The authorities as to how such a situation should be characterised are quite clear. In Evans -v- Lindsay [2006] NSWCA 354 at [71] Beazley JA collected those authorities in the following statement of principle which I am bound to apply: "[71] When a driver is confronted with a situation where there is a risk of injury there may be a range of steps that might be taken by way of a reasonable response. Should authority be needed for this proposition, it can be found in the majority judgment of the High Court in Anikin v Sierra (2004) 79 ALJR 452; [2004] HCA 64. See also Pledge v RTA (2004) 78 ALJR 572; [2004] HCA 13 at [32], where Callinan and Heydon JJ refer to the judgment of Dunford J at first instance. The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers, but in the context of the dynamics that confront the driver that usually calls for quick decision making in circumstances of quite some stress. It will not always be negligent if a driver, in what is virtually split second decision making makes what, on later reflection, was the wrong decision. However it may be negligent if a driver was failing to keep a proper lookout so that she/he, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of ' slamming on the brakes '."

In my view, the Plaintiff's vehicle parked by the roadside with its right indicator flashing was a circumstance where the Defendant was confronted with a situation where there was a risk of injury that required a quick response. The Defendant's response to that situation was inadequate in that she failed to keep a proper lookout. This is evidenced by her failure to observe the Plaintiff's flashing right turn indicator. She compounded that failure by not making continued observations that ought to have led her to drive more cautiously than she did. In my view those cumulative failures, combined with the Plaintiff's decision to commence to make a U-turn, set the scene for a collision to occur.

In my view, consequent upon her failure to keep a proper lookout the Defendant also failed to apply her brakes and reduce her speed in response to the risk posed by the Plaintiff's vehicle. In my view, in the time and distance available to the Defendant, she ought to have been able to substantially reduce her speed on her approach to the Plaintiff's vehicle and she should have been prepared to stop if the circumstances required her to do so. In my view, if she had slowed appropriately and remained alert to the risk she ought to have had enough time and distance to have been able to stop before the collision occurred.

The range of responses available to the Defendant on first sighting of the Plaintiff's vehicle included not only reducing her speed by braking but also steering her vehicle on a course away from a collision. If the Defendant had maintained an appropriate state of alert on approaching the Plaintiff's vehicle another reasonable response to seeing the Plaintiff's vehicle move across her path would have been to steer a course behind the Plaintiff's turning vehicle. I think that this was a reasonable manoeuvre that was available to her, especially if performed from a lower speed following an earlier precautionary braking. I do not accept the expert opinion to the effect that swerving is an advanced or performance driving technique. It is a commonplace avoidance manoeuvre of which every driver ought to be aware. It is not an unknown phenomenon on the roads and in my view it ought to have been within the Defendant's armamentarium of achievable responses.

I conclude that there was ample room for the Defendant to swerve. The Defendant's vehicle was 1.8m wide and she was close to the centre of the road. The bitumen roadway comprised 2.5m of cycleway and 3.5m of carriageway making a total bitumen width of 6m. The Plaintiff's vehicle was 4.2m long. Taking a conservative view of her speed, as opined by Mr Stuart-Smith, namely 20kph which is the equivalent of 5.5m per second, the dynamics of the situation show, on the balance of probabilities, that the Defendant could have reasonably and safely steered or swerved slightly to the left to avoid a collision. Even in an agony of the moment situation, when viewed prospectively I believe this was an appropriate option. It is important to note that, had the Defendant been driving at a heightened state of alert and at a slower speed, which I find ought to have been the case, a swerving manoeuvre would be less likely to be an agony of the moment response.

In my view the manoeuvre of deceleration followed by moderate braking was the minimum response required of the Defendant. In my view the Defendant should have, in sequence, decelerated, braked, flashed her lights, sounded her horn and steered or swerved slightly to the left to move behind the Plaintiff's turning vehicle. In my view, had she done so the collision would not have occurred.

In my view the above sequence was a course that was reasonable, prudent and achievable in the circumstances. I find that such a course was also practical and capable of being achieved without the Defendant endangering herself or her passenger. Instead, the Defendant did not apply the brakes or reduce her speed at all and did not react by elevating her state of alertness or readiness to stop or change her direction of travel to avoid a collision other than to reposition herself towards the centre of the road. The fact that the Defendant steered her vehicle into the centre of the road demonstrates that she perceived a potential risk of collision ahead. Her response of steering to the centre of the road was, in my view, inadequate in the circumstances.

In my view, by her failure to keep a proper lookout the Defendant deprived herself of the opportunity to observe the Plaintiff's indicator. This led to the Defendant depriving herself of the further opportunity to maintain a proper lookout. This led to a failure on the part of the Defendant to reduce her speed and to maintain a state of vigilant preparedness to take evasive action as was required by the movement of the Plaintiff's vehicle on the roadway ahead of her. As a consequence I find that the Defendant was in breach of the duty of care she owed to the Plaintiff and as a consequence I find that she was negligent.

Did the Defendant's negligence cause the Plaintiff's injuries?

The question of whether or not the Plaintiff's injuries were caused by the negligence of the defendant is a question of fact. March -v- E. & M.H Stramare Pty Limited [1990-1991] 171 CLR 506.

At the trial some time was taken up with evidence and submissions on two central issues concerning causation of the Plaintiff's injuries. The first issue on causation was the consequences associated with the fact that the Defendant's vehicle was fitted with a bull bar. The second causation issue related to a theory that if the Defendant had applied the brakes before the collision and an impact of lesser severity had ensued, this would have resulted in a significantly lesser degree of injury.

Expert evidence was given to the effect that the bull bar fitted to the Defendant's vehicle had the effect of causing disproportionate damage or impact by greatly stiffening the front end of the vehicle. This had the effect of counter-acting the benefit of an aspect of vehicle design which provided for the absorption of impact energy through controlled crush zones in the front end structure of the vehicle.

In the light of that evidence, which I accept, it is surprising and indeed a cause for concern, that the vehicle design rules continue to permit the fitting of bull bars to vehicles where the effect of a bull bar in a collision would be to cause disproportionate damage to the other vehicle and possibly the occupants of the other vehicle.

The photographic evidence demonstrated that the collision between the two vehicles resulted in a significant intrusion deformity on the driver's side of the Plaintiff's vehicle. The Plaintiff called Dr Thomas Gibson, a biomechanical engineer, whose hybrid discipline involved the interface between medicine and engineering, including the kinetics of injury and analysis of how the transmission of forces are resolved when they are applied to the human body. His report was admitted into evidence and marked Exhibit "E".

The photographs comprising Figures 7 and 8 of Exhibit "E" dramatically show the significant intrusion into the cabin space of the Plaintiff's vehicle that occurred in the collision.

Dr Gibson was asked to consider whether an impact at a lesser speed would have produced lesser injuries. There were two apparent bases for introducing this evidence. The first related to an argument concerning damage caused by the bull bar. The second basis related to an assumed lesser impact between the vehicles if the Defendant had applied her brakes prior to the collision.

The essence of Dr Gibson's evidence was that there was a relationship between the quantum of energy of the impact force and the severity of injury. Whilst that is undoubtedly correct, in this case, I find it is not possible to co-relate that concept to the Plaintiff's particular injuries so as to arrive at a finding on the balance of probabilities identifying and differentiating particular levels and categories of injury that may have been avoided by the application of lesser forces, either with or without a bull bar involved.

Whilst Dr Gibson's evidence raised interesting issues, which, in this particular case, were dependent on many variables, some of which were capable of being defined and others not, in my view this is not an appropriate case in which to attempt to resolve speculation as to whether the Plaintiff would have incurred definably lesser injuries if there had been a lesser impact or absent the presence of the bull bar in the equation.

I come to this view because ultimately, all the Plaintiff must show is that the Defendant's negligence materially contributed to her injuries. In my view the injuries suffered by the Plaintiff are the natural and probable consequences of the negligence of the Defendant. Accordingly, the Plaintiff has established that her injuries were caused by or materially contributed to by the negligence of the Defendant. Duyvelshaff -v- Cathcart & Ritchie Ltd (1973) 1 ALR 125 at 138 following Bonnington Castings Ltd -v- Wardlaw (1956) AC 613 per Reid LJ at 620. Consequent upon that finding it is otiose to speculate further as to whether a lesser degree of negligently applied force would have produced a lesser degree of injury. In my view therefore it is unnecessary to consider arguments concerning different possible outcomes on an application of Chappel -v- Hart [1998] 195 CLR 232 and like authorities.

In my view the Plaintiff has discharged the onus of proof with regard to causation of her injuries. It is therefore unnecessary in this case for me to make findings on the assumptions Dr Gibson was asked to consider for the purpose of expressing his opinions.

Was there contributory negligence on the Plaintiff's part?

Having determined that the collision and the Plaintiff's injuries occurred as a result of negligence on the part of the Defendant I now turn to an examination of the issue of contributory negligence to determine the extent, if any, to which the Plaintiff's own conduct was responsible for the collision.

Although the inability of the Plaintiff to give evidence is somewhat of a disadvantage to the assessment of her role in the cause for the collision, it is nevertheless an assessment that must be undertaken on the available evidence.

Section 138(1) of the Motor Accidents Compensation Act, 1999 provides that common law principles concerning contributory negligence apply to motor accident claims of this type. The provisions of section 138(2) of the Act which relate to impairment issues concerning alcohol, drugs and the wearing of seatbelts do not apply to the evidence in this case. Section 138(3) of the Act provides that damages are to be reduced by a just and equitable percentage. Section 138(4) of the Act requires that I state my reasons for determining the percentage by which damages should be reduced on account of contributory negligence.

The starting point for a consideration of whether or not the Plaintiff must bear some of the responsibility for her injuries is to consider the place at which she chose to make a U-turn. I find that the Plaintiff was negligent in her choice of location in which to make her U-turn. I have come to this view because the Plaintiff had already traversed the left curve in the roadway to arrive at the location where she stopped and she must therefore be taken to have known that the bend or curve in the roadway was an inherently unsafe place at which to attempt the U-turn because of the risk of traffic appearing from around the curve from behind her and from where she had just driven. Even if such traffic drove within the applicable speed limit a foreseeable risk of a collision would arise if a U-turn was attempted at that place.

I find that the Plaintiff must have known, from the presence of the street lighting on Wilfred Barrett Drive a little distance to the north of where she had stopped and because she had already passed Mini Street to the south, that it was likely there were other and safer places along the roadway where she could turn off William Barrett Drive and turn either left or right into a side street and then safely turn around to travel south from the direction she had driven.

There is no direct evidence that the Plaintiff was familiar with the area and therefore should be taken to have known that the Caravan Park entrance was only a short distance ahead on the left and that Wyuna Avenue was also only several seconds ahead on the right, both of these places being safe places from which to manoeuvre her vehicle to turn around and travel in the direction from which she had come. Nevertheless I find that a reasonable person in the Plaintiff's position ought to have realised, once she had pulled her vehicle over and parked where she did, that it was risky to turn where she had stopped and therefore if she wanted to turn her vehicle around she should have resumed her northbound travel until she reached a safe turning place or a straight section of road with good visibility in both directions where it was safe to turn.

Instead, the Plaintiff chose to turn her vehicle across double unbroken centre lines. According to the Road Rules such road markings made a U-turn in such a situation impermissible. It was also potentially unsafe to attempt this manoeuvre on a curved road. As a consequence I find that the Plaintiff was negligent and I find that such negligence on her part contributed to the collision and was therefore a contributory cause of her injuries.

The task of apportionment of damages on account of contributory negligence is an evaluative exercise, in which matters of proportion, balance, emphasis and the weighing up of different consideration plays a part, as has been more recently restated in Evans -v- Lindsay [2006] NSWCA 354 following Podrebersek -v- Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494; Pennington -v- Norris (1956) 96 CLR 10 at 16 and Joslyn -v- Berryman (2003) 214 CLR 552.

The task, essentially, is to allocate the causative potency of the respective breaches according to proportions that are just and equitable as was explained in Davies -v- Swan Motor Co. Ltd [1949] 2 KB 291 at 326 per Denning LJ: "The amount of the reduction is such an amount as may be found by the court to be 'just and equitable,' having regard to the claimant's 'share in the responsibility' for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."

In Pennington -v- Norris (1956) 96 CLR 10, the process of apportionment was explained by Dixon CJ, Webb, Fullagar & Kitto JJ at 16: "What has to be done is to arrive at a 'just and equitable' apportionment as between the Plaintiff and the Defendant of the 'responsibility' for the damage. It seems clear that this must necessarily involve a comparison of culpability. By 'culpability' we do not mean moral blameworthiness but a degree of departure from the standard of care of the reasonable man."

In Podrebersek -v- Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 532 - 533 the nature of the task of reaching an apportionment was described as: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris ) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd ; Smith v McIntyre and Broadhurst v Millman and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." (Footnotes not reproduced)

With these principles in mind I approach the task of evaluating the causative potency of the Plaintiff's actions compared to the actions of the Defendant.

In making this assessment I take into account that when the Plaintiff commenced her turn it was possible that she would have had no actual notice of the Defendant's vehicle approaching. Further, if the Defendant had reacted reasonably and reduced her speed the collision would not have occurred as it was the Defendant and not the Plaintiff who was able to make a causative difference once the two drivers were in a position to see each other's vehicles and on a collision course because the Plaintiff's vehicle was moving at a much slower speed. That causative difference consisted of the Defendant's greater ability to avoid the collision by slowing down significantly to allow the Plaintiff's vehicle to complete the U-turn as she only needed to clear 3.5m of the northbound lane. As the Plaintiff's vehicle was moving the Defendant could have steered around the rear of the Plaintiff's vehicle. Neither of these options required a panic response on the part of the Defendant and were, in my view, readily achievable by a licensed driver keeping a proper lookout and maintaining a proper state of alertness for conditions on the roadway ahead, even on a left curve such as the one the Defendant was driving upon when the collision occurred.

One of the difficulties of evaluating the respective blameworthiness of the parties to assigning a degree of fault to the Plaintiff is a possible scenario which, whilst somewhat speculative, was not discounted by Mr Jamieson, namely, the possibility that the Plaintiff may have commenced her turn albeit at an unsafe place but at a time when she may have first looked over her right shoulder to see if the road behind was clear before turning, then looking ahead and commencing to turn only to find the Defendant's vehicle coming towards her and then "freezing" in a stationary position either hoping the Defendant would stop or go around her. The missing link in such an analysis is the inability of the Plaintiff to give any evidence. This is a cause for some caution in approaching the task of balancing the different perspectives of the parties when evaluating and ascribing the degree of departure from the required standard of care. I must nevertheless make an assessment in the circumstances.

Putting aside speculation as to what the Plaintiff's thought processes were which mediated her actions, the fact remains that the Plaintiff attempted to make a U-turn on a curve which necessarily required her to cross double unbroken separation lines. This situation ought to have operated on her consciousness as an injunction not to attempt such a turn in such a place but to find a safer alternative turning place. Against this factor, although not excusing it, is the Plaintiff's display of a right turn indicator which ordinarily would have served to warn the approaching Defendant of the risk of the Plaintiff making a U-turn. In my assessment, in this case, the presence of the indicator signal places the Plaintiff's actions in a lesser category of culpability than would have been the case if she had not displayed the indicator.

However, in making the U-turn as she did the Plaintiff necessarily exposed herself to the risk of a collision. This was a course of conduct that departed from the standard of reasonable care and it attracts a significant degree of culpability.

The conduct of the Defendant also has to be weighed in the balance to determine the comparative culpabilities.

In my view the evidence discloses a cascading series of failures on the part of the Defendant which I find to be successive departures from the standard of reasonable care. In sequence, she failed to keep a proper lookout and therefore failed to see the Plaintiff's indicator. She then failed to continue to keep a proper lookout to make observations of the Plaintiff's vehicle which deprived her of the opportunity to make a causative difference. She failed to reduce her speed, not just at the outset, but during the continuum of the period of her approach to the Plaintiff's vehicle when her state of alert and vigilance, which should have been heightened, was characterised by the misplaced low grade response of slightly adjusting her road position by moving to the centre in the misguided belief that she only owed the Plaintiff a "courtesy" consideration, thereby demonstrating she had little if any appreciation of the risk of a collision.

The Defendant failed to take even the simplest course of decelerating to reduce her speed. She made no attempt to flash her lights even though she had been carrying out that practice earlier in the journey. That course, and the sounding of her horn to warn the Plaintiff of her approach, were actions that could have been undertaken concurrently and with ease as an ingrained response within the expected array of responses drivers carry with them from their basic training in the use of a motor vehicle. She also failed to avail herself of any kind of evasive manoeuvre by steering or swerving slightly to the left. These too ought to be ready and instinctive responses to danger. Her failure to keep a proper lookout was in my view so pronounced that she really didn't regard the risk of a collision being worthy of anticipatory behaviour until the collision was almost in progress, a situation which she unrealistically sought to explain with the catch all description to the effect it happened very quickly, which was an overstatement delivered as a result of the antecedent pivotal failure to keep a proper lookout.

I am mindful of the fact that minds may differ on the evaluation of the degree of culpability to be assigned to the respective parties in such cases. Other cases are, as the authorities instruct, of limited guidance because of intrinsic factual differences.

The Defendant submits that the contributory negligence of the Plaintiff should be assessed at 100%. I do not agree with that submission for the reasons outlined above. The Plaintiff submits that the Plaintiff's contributory negligence should be less than 50% and up to 40%. I think that submission has some force and application to the facts of this case.

Having given the issue of just and equitable apportionment a good deal of consideration, for the reasons outlined above, I have come to the view that the Defendant should bear the major share of the responsibility for the collision. That said, I am of the view the Plaintiff's share of the responsibility should not be regarded as minor. The Plaintiff's act of negligence was, in effect, a single departure from the expected standard of care. On the other hand, the Defendant's negligence comprised successive departures from the expected standard. In these circumstances I believe the respective responsibilities should not be assessed as being equal.

In striking a just and equitable balance between the respective culpabilities, in the circumstances of this case I apportion responsibility for the collision at 65 per cent responsibility on the part of the Defendant and 35 per cent responsibility on the part of the Plaintiff.

I have considered the array of medical and damages costing reports listed in the schedule accompanying the folder of 31 such reports that comprised MFI "9" which was provided to me for the purpose of determining whether the agreement the parties have reached on quantum was reasonable and in the Plaintiff's best interests. I have also had regard to the Plaintiff's schedule of loss which was marked MFI "9" which confirms my view that the proposed agreement is in the Plaintiff's best interests. I now formally admit that material into evidence by consent as Exhibit "J" and Exhibit "K" respectively.

The agreement between the parties on quantum was in the sum of $5,000,000 plus costs subject to apportionment for any finding concerning contributory negligence and is expressed to be exclusive of funds management charges which are yet to be determined. Having indicated my provisional approval of that agreement on the second day of the trial I now formally confirm my approval of that agreement and sanction it by making appropriate orders.

I make the following orders: (a) I approve the agreement of the parties as to quantum.

(b) I find a verdict in favour of the Plaintiff in the agreed sum of $5,000,000.

(c) I find that the Plaintiff's own negligence contributed to her injuries.

(d) I assess the Plaintiff's contributory negligence to be 35 per cent.

(e) I apportion the respective responsibilities of the parties for the Plaintiff's damages to be 65 per cent the responsibility of the Defendant and 35 per cent the responsibility of the Plaintiff.

(f) In accordance with my order for apportionment I enter judgment for the Plaintiff in the interim sum of $3,250,000.

(g) I order the Defendant to pay the amount of the judgment into Court within 28 days less any due deductions required by the provisions of the Health and Other Services (Compensation) Act, 1995 (Cwth) and I order that the balance of such sum be invested in an interest bearing account for the benefit of the Plaintiff pending the further order of the Court.

(h) I stand the proceedings over to Friday 24 October 2008 for the purpose of receiving further evidence and submissions on the issue of funds management charges.

(i) If required I grant liberty to the parties to apply for further orders on 3 days notice.

(j) I order the Defendant to pay the Plaintiff's costs.

Amendments 24 October 2008:

1. Para 40 corrections to quoted statement.
2. Para 137 sub-heading added.
3. Para 138 sub-heading added.
4. Para 214 "would" instead of "could"
5. Para 250 "comparative" instead of "corporative".
6. On further hearing the parties concerning the implementation of the order in para 260(h) I revoke the orders in paras 260(f), (g) and (j) above pending further submissions on the issue of funds management charges.

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