SHARPE v GORDON; QBE WORKERS COMPENSATION

Rebecca Sharpe - Appellant Morris Gordon - 1st Respondent PARTIES: Sotiana Leba Gordon - 2nd Respondent

QBE Workers Compensation (NSW) Ltd - Appellant Morris Gordon - 1st Respondent

R.S. McIlwaine SC & G.J. Davidson - Appellant COUNSEL: M.H. Best - Appellant

Carneys Lawyers - Appellant Sparke Helmore Solicitors - Respondents SOLICITORS: Gillis Delaney Lawyers - Appellant Sparke Helmore Solicitors - Respondent

LOWER COURT FILE NUMBER(S): DC 1382/03; DC 6586/02

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40029/06 CA 40197/06

MASON P IPP JA BRYSON JA

12 December 2006 REBECCA SHARPE v MORRIS GORDON & ANOR

QBE WORKERS COMPENSATION (NSW) LIMITED v MORRIS GORDON Judgment 1 MASON P: I agree with Bryson JA. 2 IPP JA: I agree with Bryson JA. 3 BRYSON JA: A collision between a small postal Honda CT 110 motor bike ridden by the appellant Rebecca Sharpe and a 1985 Daihatsu sedan motor car, driven by Morris Gordon the first respondent caused serious personal injuries to Ms Sharpe and gave rise to two actions which were heard together, in a hearing of five days in June, July and August 2005, by her Honour Judge Balla in the District Court of Sydney. The learned Trial Judge gave judgment for the defendants in each of those actions on 15 December 2005, for reasons then published. In the first action Ms Sharpe was the plaintiff and claimed damages for personal injuries against Mr Gordon, who was driving the motor car at the time, and Mrs Gordon who was its registered owner but was not present and had no other involvement. In the second action QBE Workers Compensation sued Mr Gordon as the only defendant under s.151Z(1)(d) of the Workers Compensation Act 1987 (NSW) to recover workers compensation paid to Ms Sharpe as the insurer of her employer, a postal contractor. For practical purposes issues relating to liability in the two actions are the same. Damages were not assessed and their quantum was not debated on appeal.

4 The collision occurred at about 12.30pm on Friday 8 December 2000 on the western footpath of Willee Street Strathfield, close to the intersection with Liverpool Road. Mr Gordon was driving the motor car east across the footpath and was leaving the car park behind a nearby post office, and Ms Sharpe was riding the motor bike north in Willee Street. Ms Sharpe was training for work in mail delivery, and it was not unlawful for her to be riding a postal motor bike on the footpath, subject to conditions. The collision occurred on a business day in good weather, and it was quite unremarkable that there should be a postal motor bike on the footpath at that time: unusual, but unremarkable and foreseeable. 5 The standard of reasonable care imposed on Mr Gordon by the common law is not necessarily equated with requirement to observe the Australian Road Rules ("ARR"). ARR 74 obliged Mr Gordon to give way to any vehicle or pedestrian on the footpath, irrespective of the direction of approach: 74 (1) A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line on the road or road-related area must give way to: (a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road-related area or adjacent land); and (b) any pedestrian on the road; and (c) any vehicle or pedestrian on any road-related area that the driver crosses to enter the road; and (d) for a driver entering the road from a road-related area - any pedestrian on the road-related area. Offence provision. 6 The ARR, as in force in New South Wales, allow riding a postal motor bike on a footpath, but there are limits. ARR 288(1) provides to the effect that a driver must not drive on a path; and driver includes rider of a motor bike; see ARR 16, 17 and 19. ARR 288(2)(c) contemplates permission to drive on a path under another law and ARR 313(2) contemplates provision in another law that ARR 288 should not apply to the driver of a postal vehicle. The Road Transport (Safety And Traffic Management) (Road Rules) Regulation 1999 (NSW) gives effect to ARR. The Regulation provides in cl.32(b): "For the purposes of rule 313 of the Australian Road Rules : … (b) rule 288 (Driving on a path) of those Rules does not apply to a driver of a postal vehicle if: (i) the vehicle is a motor bike having an engine capacity of no more than 110ml, and (ii) the vehicle is being driven at a speed not exceeding 10km/h

When considering what a motorist in Mr Gordon's position should reasonably keep a lookout for, common experience supports the effect of these and shows that there may be small postal motor bikes, stationary or at low speed, on footpaths. 7 Photographs and plans in evidence greatly assist understanding the area where the collision occurred. As the learned Trial Judge said (Red 67), "The geography of the scene is difficult to describe because it is irregular". Ms Sharpe rode the motor bike generally easterly along the northern footpath of Liverpool Road past a long shopping complex; and made mail deliveries. The northwestern corner of the intersection of Liverpool Road with Willee Street is a sweeping bend, said to be 145 degrees but curved. Ms Sharpe reached the footpath in front of a liquor store which has frontage to Liverpool Road at the curve, at which point the building is set back from the footpath, and also has frontage to Willee Street, at which point part of the liquor store building 9.5 m long projects out and stands on the boundary between the footpath and private land. Directly beyond this part of the liquor store building is the driveway from which Mr Gordon made his exit. Immediately north of the driveway is a house used as a pre-school. No view of vehicles in the driveway was available to Ms Sharpe until she was very close to the driveway; the liquor store building obstructed any such view. No view of the footpath to his right, in front of the liquor store building, was available to Mr Gordon exiting from the car park until he reached a point where his head was level with or forward of the front wall of the liquor store building; and at that point, the part of the car forward of the driver's seat would project onto the footpath. There plainly was danger in the situation in which a motor car was driven down the driveway and crossed the footpath; caution was required. In the Trial Judge's findings, Mr Gordon used caution. 8 The Trial Judge's reasons gave extended and careful consideration to the facts. I set out passages from her Honour's reasons (Red 67-70): Circumstances of the accident

On 8 December 2000 the plaintiff set off to do her postal round. She was wearing a yellow vest with orange reflective bands, a white helmet and riding a red bike.

As the plaintiff approached the point at which she was injured, she stopped on several occasions to deliver mail. The geography of the scene is difficult to describe because it is irregular.

As the plaintiff started to travel along the footpath adjacent to Liverpool St, there was a long shopping complex on her left. At the point where the building started, the building alignment was set back from the roadway. As the plaintiff rode closer to the point at which she was injured, the building extended out closer to the roadway forming an "L" shape. From this point to the driveway the building frontage runs roughly parallel to the street. Between the building and the street is a footpath approximately 4.2 metres wide. The length of the building up to the driveway is 9.45 metres.

The plaintiff said that she stopped at the point where the building extended out closer to the roadway because there were two pedestrians coming down the footpath towards her.

The plaintiff said she nodded to them to say hello and looked down to see where her next delivery point was. She had a little pouch on the handlebars of the motorbike. The letters for the next deliveries were in that pouch. She determined that her next delivery was on the other side of the driveway at the child care centre.

The two people walked past her. She glanced over her right shoulder to make sure that they had gone past. She said that she then looked up put the motor cycle into gear, gently eased on the accelerator which was on the handlebars and proceeded to move along the building alignment towards the driveway.

The plaintiff gave a different version to the police on 24 January 2001. She said in her statement "I stopped at the start of the brick wall to let some real estate people through. I nodded to the real estate people and I started moving again. I looked down to see my next delivery" . She denied in cross examination that her bike was moving when she looked down to check the delivery.

It is common ground that as the plaintiff approached the driveway the defendant's vehicle travelled out from behind the building alignment (i.e. from the plaintiff's left) intending to exit from the car park driveway on to the street.

The plaintiff had delivered mail to that area before and was aware that there was obstructed visibility. She had witnessed an episode where a car had come out of the driveway and almost had an accident with a post bike two to three weeks earlier when she was being shown the run by a trainer. He had been able to stop in time to avoid a collision.

The plaintiff said that as she moved off she could not see anything in the driveway.

The plaintiff said she had been moving at walking speed. The evidence establishes this would be 3 to 5 kmh. In her statement to the police the plaintiff said "I changed into second when I noticed the bonnet of the car at that dangerous intersection" . The plaintiff told the ambulance officers that she had been travelling at approximately 10 to 15 kilometres an hour.

The plaintiff agreed that over the entire period, literally up until moments before impact, she had been accelerating her bike. She only stopped accelerating to take evasive action when she saw the defendant's vehicle. She said she had been looking straight ahead, to the left to see what was coming out of the driveway and looking back to the right to see what was coming in.

The plaintiff described the motor vehicle as travelling at the speed of somebody who was sprinting. She said she had seen movement out of the corner of her eye, she then turned and had a look and saw the defendant's vehicle coming out. She first saw it when it was a car to three-quarters of a car length away. When she first saw the car she could only see the bonnet and could not see the driver because he was not in view.

The plaintiff said she applied the brakes but was not sure whether they had engaged. In her police statement she said: "I changed into second when I noticed the bonnet of a car at that dangerous intersection. I applied the brakes and they didn't grip on in time and I hit the driver's side of the car."

She then said in cross examination that her bike had just got new brakes which sometimes take a bit of time to kick in.

The plaintiff said that the defendant's motor vehicle came straight out in front of her and kept on moving. She applied the brakes but the front wheel of the motor cycle hit the driver's door. The whole bike turned around and she hit the back of the car with her head. She fell beyond the bike on to her bottom and then on to her back. The left hand saddle bag hit the rear door. The right hand handlebar went into her abdomen and struck her in the chest. 9 After dealing with an issue relating to whether the forks in the motor bike were bent the Trial Judge went on (Red 70-71): The plaintiff was asked the following question in cross examination: Q. Well, isn't that precisely what happened, that a vehicle did appear from behind the driveway and you couldn't stop? She answered: A. Because I was just too close to the wall where I should have been out further but because of the pedestrians I just got distracted.

The defendant gave evidence. He had been driving a 1985 Daihatsu Charade sedan. He had been to the post office and was driving out of the car park down the driveway leading onto the street.

The defendant said he knew there was a blind spot to his right. He drove at very low speed, 1 or 2 kmh, to get a clearer view to the right. He said he pulled up, looked to the right and to the left, and then back to the right. As he did not see any pedestrians on the footpath and or any vehicles entering Willee Street he decided to cross the footpath. He started up at very low speed because his vehicle was low powered.

As he was moving forward very slowly he watched the entrance to Willee Street because he had seen that there were no pedestrians on the footpath. He caught an orange flash which was just a blur out of the corner of his eye. He said that at that time the plaintiff was 30 or more feet away. The post office bike and the plaintiff came into focus about a second before impact, and he said he could not do anything to avoid a collision.

The bike hit the driver's door causing the vehicle to rock quite violently and there was a secondary bump as the rest of the motor bike bumped the passenger's rear door, and it rocked again. He said he stopped the vehicle as quickly as he could so that his vehicle had moved into Willee Street with the rear wheels at the gutter. 10 The Trial Judge made findings dealing with credit and said that she preferred the evidence of Mr Gordon and relatively contemporaneous statements by Ms Sharpe to the oral evidence of Ms Sharpe where they conflicted; that she had taken demeanour into account, and that matters which arose in cross-examination led her to treat all of Ms Sharpe's evidence with caution. The credit finding was important as part of the basis of the Trial Judge's rejection of Ms Sharpe's evidence that Mr Gordon's motor car came straight out in front of her and kept on moving: that is that he did not stop at the exit from the driveway. 11 After considering evidence relating to Ms Sharpe's injuries and disabilities the Trial Judge made these findings (which I call the Trial Judge's own findings) (Red 75-77): Findings

1. The plaintiff stopped her motorcycle at the point on the footpath where the adjacent building extended out closer to the roadway because there were two pedestrians coming down the footpath;
2. The plaintiff said she nodded to the pedestrians.
3. The plaintiff then put the motorcycle into gear, gently eased on the accelerator which was on the handlebars and proceeded to move along the building alignment towards the driveway.
4. As she rode along the footpath she looked down to documents on the handlebars of the motor cycle to check the location of the next delivery point.
5. The plaintiff continued to accelerate and was travelling at around 10 to 15 kmh when she changed into second gear and looked up to see the bonnet of the defendant's vehicle travelling across the footpath in front of her.
6. The plaintiff was riding slightly to the left of the notional centre of the footpath i.e. closer to the wall of the building.
7. The plaintiff applied the brakes. They did not grip before her motor cycle hit the driver's door of the defendant's vehicle.
8. There was a secondary bump as the rest of the motorcycle bumped the passenger's rear door.
9. The damage to the plaintiff's motor cycle was bent forks and steering.
10. The plaintiff was aware that there was obstructed visibility at the intersection.
11. The defendant was driving out of the car park and stopped so that he had a view for 30 ft to his right. He looked to the right and did not see any pedestrians on the footpath.
12. The defendant started to move his vehicle towards the street while watching the entrance to Willee Street.
13. The defendant caught an orange flash which was just a blur out of the corner of his eye.
14. The post office bike and the plaintiff came into the defendant's focus about a second before impact.
15. At the time of impact the front of the defendant's vehicle was near the gutter.
16. The defendant's vehicle came to rest with the rear wheels in the gutter. 12 The Trial Judge then stated some findings which she based on the evidence of Mr Keramidas (Red 77-79). I call these the Keramidas findings. Mr Keramidas is an expert in accident reconstruction with engineering qualifications. I am satisfied that the evidence establishes the primary assumptions on which his opinions are based. I accept his evidence as to the following:
17. The impact occurred approximately 2.5 metres west of the kerb alignment or about 1.7 metres east of the building line.
18. The defendant's vehicle moved 3.1 metres from impact to rest.
19. A 3.1 metre stopping distance is consistent with the defendant's vehicle having travelled at around 8 km per hour, although the speed could have been 1 to 2 kilometres per hour faster or slower. It is also consistent with the defendant having accelerated slowly.
20. The damage to the vehicles was consistent with the plaintiff travelling at an approach speed of 15 to 20 kmh.
21. The plaintiff travelling at walking speed was inconsistent with the dynamics of the impact between the two vehicles.
22. At the time the defendant started to move away from the point at which he had stopped his vehicle, the plaintiff's motorcycle was 11.3 - 15.1 metres away. This was consistent with the plaintiff being just out of the defendant's view immediately before he started to cross the footpath.
23. The plaintiff would have had a view of the defendant's motor vehicle before the defendant could have seen the plaintiff's motorcycle. This was because the bonnet of his vehicle would have protruded into her view before the defendant could have seen the motor cycle.
24. The plaintiff would have been able to see the defendant's vehicle for about 2.7 seconds while the defendant should have had a view of the motor cycle for 1.7 seconds before impact.
25. It was reasonable for the defendant to look for pedestrians but he would not have expected a person riding a motorcycle to travel along the footpath.
26. The plaintiff would have had ample time and distance in which to react to the presence of the defendant's vehicle and either slow or bring her motor cycle to a halt before impact if she had started to apply her brakes at the time the defendant's vehicle came into her view.
27. The fact that the plaintiff had applied her brakes but they had not "gripped" in time suggested that she saw the vehicle approximately 1.5 seconds prior to impact thus missing 1.2 seconds of additional time that she would have had available if she had been looking ahead the entire time. She would have only needed between 0.6 and 0.75 of a second of that time to have been able to stop her motor cycle at the point where the impact occurred. By that time the defendant's vehicle would most likely have moved out of her path and a collision would not have occurred.
28. If the defendant had kept looking to the south then it is likely that he would have seen the plaintiff about 1.7 seconds before impact. If he had then applied his brakes his vehicle would have stopped entirely across the path of the motorcycle.
29. The defendant could only have avoided the impact if he had seen the plaintiff's motorcycle before moving off from the point at which he had stopped.

13 Mr Keramidas made an investigation which included an inspection of the site on 3 September 2003 and a report dated 15 March 2004. Upon the evidence it was reasonable for the Trial Judge to accept his expertise and to base findings upon his views; but there were some errors in the Trial Judge's consideration of and findings based on Mr Keramidas' evidence. 14 It should not be understood, notwithstanding Keramidas finding (4) that the Trial Judge accepted Mr Keramidas' evidence about damage to vehicles, that her Honour found or acted on the view that Ms Sharpe's motor bike travelled at an approach speed of 15 to 20 kmh. That is altogether inconsistent with the Trial Judge's own findings (5) and (7), in which Ms Sharpe accelerated, travelled at about 10 to 15 kmh, saw the bonnet of a car in front of her, she applied the brakes and they did not grip before the collision; it would be inconsistent with those findings that the motor bike ever reached an approach speed of 15 to 20 kmh. 15 Keramidas finding (6) says that at the time Mr Gordon started to move away from the point at which he had stopped his vehicle Ms Sharpe's motor bike was 11.3 to 15.1 m away and this is plainly inconsistent with the Trial Judge's own finding (1) that Ms Sharpe stopped her motor bike at the point on the footpath where the adjacent building extended out. That point was in the order of 10 m from the point of impact. Mr Keramidas' evidence placing the motor bike at 11.3 to 15.1 m away is part of an interpretation of the events which Mr Keramidas made long before the hearing and without the benefit of the evidence given at the hearing. This interpretation is illustrated by Mr Keramidas' Sight-Line Diagram (Supplementary Appeal Book 106) which shows Ms Sharpe's motor bike making an approach which did not include stopping at the point where the Trial Judge found she stopped; in the Sight Line Diagram the positions of the motor bike at 11.3 and 15.1 m are further away than the point at which the Trial Judge's own finding (1) established that the motor bike stopped. It is clear that at the point where Ms Sharpe stopped the motor bike (as the Trial Judge found she did) Ms Sharpe and her motor bike were within the view available to Mr Gordon immediately before he started to cross the footpath. It was plainly an error for the Trial Judge to bring under consideration this part of Mr Keramidas' opinion: the facts as he interpreted them were altogether inconsistent with the Trial Judge's earlier findings based on evidence which the Trial Judge had reviewed. 16 Although Keramidas finding (7) is not literally inconsistent with earlier findings, it loses most of its force because of its association with Keramidas finding (6) which is inconsistent with earlier findings. 17 Keramidas finding (8) is mathematically inconsistent with the Trial Judge's own finding (5) in which Ms Sharpe's motor bike moved from its point of rest to the point of collision, a little over 10 m, and attained a speed of around 10 to 15 kmh. As a matter of arithmetic, it takes 2.4 seconds to travel 10 m at a constant speed of 15 kmh and 3.7 seconds to travel 10 m at a constant speed of 10 kmh. If 10 kmh and 15 kmh are averaged, it takes 2.88 seconds to travel 10 m at 12.5 kmh. Assuming a constant rate of acceleration the time taken to travel 10 m while accelerating from rest to 15 kmh is 4.8 seconds. It is consistent with the Trial Judge's own findings that Ms Sharpe may have been able to see Mr Gordon's vehicle for a longer period than he would have had a view of the motor bike because the front of the vehicle, forward of the driver, appeared in view before the vehicle reached a position where Mr Gordon in the driver's seat could see the footpath to his right including the place where the motor bike became stationary. As the findings and indeed the evidence do not enable any conclusions to be reached on how long Mr Gordon's vehicle was stationary while he had the opportunity to make observations of the footpath and other observations, and do not enable any conclusions about how long the motor bike was stationary, or about how those two periods relate to each other, no reliable conclusions based on the length of time during which either had the opportunity to observe the other are available. The Trial Judge also made conclusions about the time available in Keramidas finding (11); I do not understand the basis of these conclusions but even if they related to 15 to 20 kmh, or to Keramidas findings (6) and (8), they were incorrect. The same is true of Keramidas finding (12). 18 Keramidas finding (9) is a conclusion which it was not reasonable to base on Mr Keramidas' opinion. It was unusual that a person should be riding a motor bike on the footpath, but it was foreseeable that a postal motor bike might be on the footpath, and in the exercise of reasonable care Mr Gordon should have looked for one. 19 When addressing whether the facts showed negligence the Trial Judge said (Red 80): … What occurred was that the defendant stopped and looked to his right. He could see 30 feet to his right. The plaintiff was more than 30 feet away and he did not see her. Because the footpath was clear he concentrated on oncoming traffic. While the plaintiff was able to travel that 30 feet distance in the time leading up to the collision, she was travelling at a faster pace than a pedestrian. Her bright clothing attracted his attention at a time when it was too late to avoid the collision. 20 The statements "The plaintiff was more than 30 feet away" and "Because the footpath was clear" show the influence of Mr Keramidas' evidence and are inconsistent with the Trial Judge's own earlier findings. 21 The Trial Judge gave two reasons why the earlier findings did not establish negligence on the part of Mr Gordon; to the effect that: (1) it was reasonable to be expecting pedestrians rather than motorcyclists on the footpath, and (2) Mr Gordon could not have avoided the collision once he had moved off from the point at which he stopped and looked to his right along the footpath; if he had kept looking to his right he would have seen the plaintiff about 1.7 seconds before impact. 22 In my opinion the Trial Judge's reasoning which produced the conclusion that Ms Sharpe had not shown that Mr Gordon was negligent was based on inconsistent and erroneous factual conclusions, and should be set aside; the Court of Appeal should reconsider whether the facts found show negligence and base its consideration upon the Trial Judge's own findings uninfluenced by inconsistent findings attributed to the influence of Mr Keramidas' evidence. 23 In my view, always remembering that the findings about elapsed times and about the speed which Ms Sharpe reached had no precision and that precision is unattainable, the correct analysis of the question of negligence is as follows. 24 Mr Gordon stopped the motor car at a point where he could observe to his right. At that point the engine and bonnet, the parts of the motor car forward of the driver's seat, projected beyond the building line on to the footpath. Evidence does not show how far they projected: the vehicle was a small one and without high confidence it should be said that about 1.5 m or so of the vehicle was standing in the footpath and visible to a person approaching as Ms Sharpe approached. Mr Gordon made observations while his vehicle stood there. It cannot be known how long Mr Gordon's vehicle was stationary while he made these observations. There were many claims on his attention, including possible foot traffic approaching from left and right on the footpath, vehicle traffic on Willee Street proceeding south, and vehicle traffic approaching from his right round the long curve out of Liverpool Road. 25 There was nothing to prevent Mr Gordon from seeing any pedestrian or any motor bike which was 10 m away on the footpath to his right. The motor bike and Ms Sharpe seated on it were highly visible; the motor bike was distinctively and strongly coloured and so was Ms Sharpe's clothing. The probability is however that at about the time he began his observation, Ms Sharpe and her motor bike were stationary about 10 m to his right while she waited for two pedestrians who were walking southerly to pass her. Mr Gordon did not notice the pedestrians or the motor bike; but pedestrians walking away from him and a stationary motor bike on the footpath would have little claim on his attention, while the possibility that motor traffic was approaching from either left or right would have a strong claim on his attention. 26 After he made his observations Mr Gordon moved the motor car forward. It travelled several metres before the collision, when the motor bike struck its right hand side at the driver's door. Mr Gordon first saw the motor bike as a blur to his right almost at the time of the collision. 27 Ms Sharpe started the motor bike and moved north, intending to put mail in the letterbox of the house immediately beyond the driveway. Her movement took something in the order of 3 or 4 seconds or so during all of which the motor car, whether stationary or (it may be) again moving, was fully in her view ahead of her. Ms Sharpe did not observe the motor car until very shortly before the collision; too short a time to apply the brakes effectively. 28 Mr Gordon made an observation of the footpath but the presence of the motor bike did not register in his mind; the probabilities are that it did not register because it was stationary when he made the observation. If Mr Gordon had seen that the stationary motor bike was there, he should not reasonably have conducted himself on the basis that it might start and drive into collision while his car was partly or wholly across the footpath where the rider of the motor bike could see it: the possibility that that might happen was so extremely small that it was reasonable for him not to allow for it. If he had allowed for that possibility the only course available to him was to remain stationary with the motor car partly projecting onto the footpath. As the point of impact was about 1.7 m east of the building line it cannot be known whether the collision would have occurred if he had done so. 29 In my judgment, having regard to the matters I have mentioned, in particular to the fact that Mr Gordon did make an observation of the footpath to his right, and also having regard to the other claims on his attention, it was not negligent of him to move off after having made his observation; nor was it negligent of him to fail to register the presence of the motor bike; nor was he negligent in any other respect. 30 For these reasons I am of the view that the appeals should be dismissed with costs.

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