Spiers v Norman [2004] ACTSC 55

Supreme Court of the ACT|2004-06-28|Before: Higgins CJ

1. Judgment be entered for the Plaintiff in the sum of $242,452.30.

1. The plaintiff suffered personal injuries in a motor vehicle accident which occurred at or about 4.22 pm on 24 December 2001. She had been driving her motor vehicle, a RAV 4-wheel drive, YBG-87R in an easterly direction on Adelaide Avenue in the Australian Capital Territory.

2. At a point opposite the Prime Minister's Lodge, it appears that the plaintiff turned right so as to cross the bus lane and enter a paved driveway leading to the entrance to the Prime Minister's Lodge (`the Lodge'). Between the driveway and the entrance was the west bound carriageway of Adelaide Avenue. The paved driveway crossed a wide median strip which separated the two carriageways.

3. The defendant was driving a police motor vehicle in an easterly direction on the same carriageway as the plaintiff but was travelling in the bus lane with emergency lights and sirens activated. It was travelling at high speed. The defendant's vehicle collided with the plaintiff's vehicle as it turned.

4. The impact was one of considerable force. The RAV 4 was lifted into the air and rolled over several times. The plaintiff was seriously injured.

5. It is her case that, notwithstanding that the defendant's vehicle was in emergency mode, known as `Priority 1', the defendant had, nevertheless been travelling at an excessive speed so as to be unable to react in time to avoid a collision where a vehicle, at the driveway in question, decided to perform a right hand turn, whether to enter the Lodge or to perform a U-turn.

6. The defendant's case was that he was lawfully entitled to use the bus lane in Priority 1 mode and that the plaintiff had, without warning and without heeding the Priority 1 warning lights and sirens, crossed the path of the police vehicle without affording the defendant any reasonable opportunity to avoid colliding with the plaintiff's vehicle.

7. Alternatively, the defendant relies on those same circumstances to urge a finding of contributory negligence on the part of the plaintiff.

8. Clearly, it is critical to any judgment as to whether the plaintiff or defendant or both were negligent to determine what the facts were, so far as they are proved, relevant to the accident. In that respect, whilst the plaintiff must first prove that the defendant was, on the balance of probabilities, negligent, that is, in breach of his duty of care to the plaintiff, and that such negligence was an effective cause of the damage the plaintiff undoubtedly suffered. The onus then falls on the defendant to prove that the plaintiff was, and, if so, to what extent, in breach of her duty of care to herself to avoid injury, that is, to take reasonable care for her own safety.

9. The plaintiff's case did not rely on any observations of the circumstances of the accident by any eye witness. The plaintiff had, it was accepted, suffered severe head injuries and had, as a result, no clear recollection of the circumstances surrounding the collision and none at all of the immediate circumstances.

10. The plaintiff's case, therefore, relied upon admissions made by the defendant in his answers to interrogatories and inferences to be drawn from the description of the accident scene reported by a traffic engineer.

11. The answers to Interrogatories, as affirmed by the defendant and admitted into evidence, were as follows:

`Q1. By reference to the east-bound lanes of Adelaide Avenue and the gap in the median strip of Adelaide Avenue which leads to the entrance to the Prime Minister's Lodge, describe either [by] words or by the use of a diagram, the point of collision.

A1. The collision occurred in the bus lane adjacent to the Lodge near the gap in the median strip.

Q2. At what speed was the police vehicle travelling six hundred metres from the collision?

Q2.1 Was the police vehicle exceeding the designated speed limit for the roadway?

Q2.2 If the answer to the preceding question is "yes", why?

A2. The police vehicle was travelling at a speed of between 100 - 110 kilometres per hour.

A2.1 Yes

A2.2 The police vehicle was operating in emergency or priority one mode.

Q3. At what speed was the police vehicle travelling one hundred metres before the collision?

Q3.1 Was the police vehicle exceeding the designated speed limit for the roadway?

Q3.2 If the answer to the preceding question is "yes" why?

A3. The police vehicle was travelling at a speed between 100 - 110 kilometres per hour.

A3.1 Yes

A3.2 The police vehicle was operating in emergency or priority one mode.

Q4. At what speed was the police vehicle travelling fifty metres before the collision?

Q4.1 Was the police vehicle exceeding the designated speed limit for the roadway?

Q4.2 If the answer to the preceding question is "yes", why?

A4. I am unable to accurately assess the speed of the police vehicle at a point 50 metres before the collision. To the best of my information, knowledge and belief, the police vehicle was travelling at a speed between 70 - 100 kilometres per hour.

A4.1 To the best of my information, knowledge and belief, I am unable to provide an accurate answer to this interrogatory.

A4.2 I am not required to answer this interrogatory.

Q5. Did you see the Plaintiff's vehicle before the collision?

Q5.1 At what distance before the collision did you see the Plaintiff's vehicle?

Q5.2 How long in time before the collision was there from first seeing the Plaintiff's vehicle?

Q5.3 Describe precisely the course following by the Plaintiff's vehicle from the time you first observed it until the collision.

Q5.4 Did you take any steps, and if so, what steps, to avoid the collision?

A5. Yes

A5.1 I first observed the Plaintiff's vehicle at a point approximately 50 - 100 metres before the point of the collision.

A5.2 To the best of my information, knowledge and belief, there was a period of several seconds between the point of first seeing the Plaintiff's vehicle and the point of collision.

A5.3 The Plaintiff's vehicle was travelling east-bound in lane 3 of Adelaide Avenue. The Plaintiff's vehicle, without warning, then made a right-hand turn into the bus lane.

A5.4 Upon seeing the Plaintiff's vehicle enter the bus lane, I immediately and heavily applied the brakes of the police vehicle and following application of the brakes veered the police vehicle to the right in an effort to avoid the collision.'

12. There was a police diagram of the accident scene containing some measurements. It was of use to the traffic engineer, Mr Jamieson, to enable scale diagrams to be drawn. He was also able to describe the contour of the roadway. Relevantly, this featured a crest 150 metres west of the crash site. The crest was such, as is apparent from the photographs tendered, that a vehicle travelling towards the crest has no view of traffic to the east of it until at that point.

13. Conversely, a vehicle in the right hand lane travelling east and deciding to turn right into the paved driveway leading to the west bound carriageway, would have no view of a vehicle travelling in the bus lane until the latter topped the crest of the slope.

14. Thus, it is a reasonable hypothesis that, at the time the driver of the RAV-4 decided to turn right and commenced to do so, the police vehicle was not yet in view. It plainly did come into view a split second later. By then the driver of the RAV-4 would have had to glance right to see the police vehicle approaching. Unless it then had time to clear the bus lane onto the driveway across the median strip, the RAV-4 had no opportunity to avoid the police vehicle. The police vehicle, faced with a vehicle diverging right, across its path, could only do one of three things - all accompanied by heavy braking. First, to veer left, increasing the chance of the RAV-4 being able to pass in front of it; second, to maintain course and hope the RAV-4 would pass in front of it; or third, to veer right, hoping the RAV-4 would slow or stop and that the police vehicle would pass in front of it.

15. The first course risked a collision with other vehicles in the right hand carriageway from which the plaintiff's vehicle had diverged. The third, which in fact was chosen, exacerbated the chances and severity of the collision. It is possible that the second course would have avoided the collision, given the point of impact on the RAV-4. Nevertheless, it is clear that the choice was one thrust upon the defendant `in the agony of the moment'. The defendant is not to be found negligent by reason only that he made what, with hindsight, appears to have been the wrong choice.

16. The plaintiff's recollection of the circumstances surrounding the collision was incomplete and, in some respects, confused. That was due, I am satisfied, solely to her injuries. I was impressed with her as being an honest witness doing her best to give accurate evidence.

17. Her first relevant recollection was of travelling with a friend, Leanne Wallace, to Woden, intending to enable Ms Wallace to buy fish. That took her to Adelaide Avenue travelling west. Her subsequent actions she recalled in the following terms:

`I remember that there was a build-up of traffic, there was smoke, I remember the smoke. The air was a bit dusty, driving towards Kent Street still on Adelaide Avenue and they were directing the traffic to go around. I actually remember doing that.'

18. She did recall going over the median strip in that locality. That was consistent with evidence that police had closed Adelaide Avenue at the Kent Street overpass. Fire was, at the time, threatening Curtin and Yarralumla. There was no paved break in the median strip west of the Prime Minister's Lodge, however, it appears that police were directing west bound traffic to turn around and proceed along the east bound lanes. She did recall that:

`Everybody was turning around, they were directing us all to turn around so cars were turning around all over the place, it was - it wasn't just one line around. We turned with care, all I remember.'

19. Subsequently, she made a statement to police, the day after her release from hospital. At that point, she had, as her last recollection, going past the Lodge travelling west. There was also a diagram put to her in cross-examination. In general terms it described the course of the plaintiff's vehicle. However, it was apparent, as the plaintiff herself pointed out, that it did not represent her recollection but rather her understanding of how the accident happened from what she had been told. She did have a recollection of thinking `You silly woman, you've doubled back.' To what that referred was not clear though it is consistent with a recollection of travelling east on Adelaide Avenue after being turned around. The record of interview between the plaintiff and Senior Constable Edith Jankowski demonstrates that the plaintiff had, during the interview, confused that recollection with earlier travelling to Old Parliament House.

20. The answers to interrogatories constitute admissions by the defendant that 100 metres before the collision, the police vehicle was being driven by him at between 100 - 110 kilometres per hour. He asserts that the plaintiff's vehicle was observed `approximately 50 - 100 metres before the point of the collision'. He further asserted that, `without warning', that vehicle `made a right-hand turn into the bus lane'. At 50 metres from the collision the defendant contended his vehicle had slowed to 70 - 100 kilometres per hour.

21. From those facts it would not be possible to conclude that the police vehicle had been travelling at such a speed as to have deprived a driver intending to turn right, as the plaintiff did, of any opportunity to observe and take account of the approaching vehicle. Nor was there any evidence that, prior to turning, the RAV-4's right turn indicators were activated, although it is unclear whether the defendant, from his position in the bus lane, could have observed them in any event.

22. The passenger in the plaintiff's vehicle was not called as a witness. As required by Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, there being no explanation for her absence, I must assume that any testimony she could give would be of no assistance to the plaintiff.

23. It was not disputed that, travelling at 100 kph, the police vehicle should have been able to stop in a distance 59.2 metres (Leslie, P.A. and Britts, M.M.G., Leslie and Britts Motor Vehicle Law in NSW, 4th ed., Table 4, p. 11-626). At 110 kph that distance would be 78.1 metres. However, that is an average result that should be bettered by a trained and alert police driver.

24. If, as asserted, the defendant observed the plaintiff's vehicle turning right, even without prior signal, at 50 - 100 metres before the collision, his speed, even if 110 kph, should have reduced to less than `70 - 100' kph by the point of impact. On the other hand, at the point of divergence, the plaintiff's vehicle had the opportunity to have observed the approach of the police vehicle, lights flashing, for not less than 50 metres. Even if the police vehicle had been travelling at 110 kph, a time lapse of 1.5 secs would have occurred. That should have been sufficient for a reasonably observant driver to have become aware of an approaching priority one vehicle before committing to a right hand turn.

25. Subject to the concerning anomaly in the defendant's answers to interrogatories referred to above, it would be difficult to establish that, even granted the defendant's excessive speed relative to all other traffic, the plaintiff did not diverge right without regard to approaching traffic of which she, at least, should have been aware, given the warning signals of approach being utilised.

27. First, the defendant gave evidence. He had, on the day of the accident been licensed to drive motor vehicles for only three and a half years. However, he had trained as a police driver, including training to deal with braking emergencies such as the sudden appearance of something coming into his path.

28. On 24 December 2001, he had commenced duty at about 10.00 am. There were bushfires to the west of Canberra and, at about 2.00 pm, the defendant with Constable Tyrone Robert Clark was directed to perform duties at Scrivener Dam, near the National Zoo and Aquarium (`the Zoo'). The urgency of that task was given as priority one. As the defendant understood it, he was thus authorised to activate lights and sirens and proceed with the utmost speed, consistent, of course, with his and public safety. There were flames and smoke to the west of the Zoo; that is, west of the Tuggeranong Parkway, a major arterial road to the west of the Zoo itself.

29. The defendant picked up and transported two other officers to the intersection of Cotter Road and Tuggeranong Parkway. They were to prevent vehicles entering the Parkway. The defendant and his fellow officer, Constable Clark, were then directed to assist in the evacuation of Yarralumla Woolshed, a building to the south of the Zoo and east of the Parkway, further along the Cotter Road to the east back towards the suburb of Yarralumla. It was also a priority one task.

30. As they pulled into the entrance of the driveway of the Woolshed another police vehicle stopped them, advising the task had already been accomplished. They were then directed to proceed to a nearby equestrian centre, Forest Park Riding School. The fire, smoke and embers were travelling in an easterly direction. Fire Brigade vehicles arrived to safeguard the school buildings so the defendant and Constable Clark were assigned to assist evacuations in the Yarra Glen and Yarralumla areas. Curtin, a suburb to the south and west of Yarralumla, was already being evacuated. They proceeded to Novar Street, Yarralumla, exiting the Cotter Road at Dudley Street. As they moved towards the Yarralumla shops, the defendant noticed that a low fuel warning had activated. He and Constable Clark agreed they would need to re-fuel. The vehicle was supplied only with Caltex and BP petrol cards. The defendant enquired of a fellow officer, Constable Richardson, at the intersection of Dudley and Novar Streets, and was advised that BP Kingston was the closest authorised station. (There was one at Phillip but that would have been closer to the fire front).

31. Accordingly, the defendant exited from Novar Street/Kent Street overpass down onto Adelaide Avenue. That street, west of the overpass became Yarra Glen which was then being blocked to westbound traffic. On Adelaide Avenue, the defendant noticed medium to heavy traffic travelling west. There was medium to heavy traffic travelling east. Surprisingly, he did not notice that westbound traffic was being stopped by police and turned around.

32. Nevertheless, the defendant crossed the two traffic lanes and then entered the bus/taxi lane of Adelaide Avenue. That was the lane next to the median strip separating the east and west bound carriageways of Adelaide Avenue.

33. The traffic was, he said, moving at 60 - 80 kph. He accelerated to 100 kph.

34. He stated that he noticed no other vehicle on or diverging into the bus/taxi lane until the plaintiff was near a `Taxi Bus Only' sign opposite the Prime Minister's Lodge. She was then moving into the lane he was travelling in. He was, he estimated, a further 50 - 100 metres further back. The plaintiff's vehicle turned across in front of his approaching vehicle. He immediately and heavily applied his brakes. He had looked at his speedometer a little before and had then been travelling at 100 - 110 kph. He also steered right as he braked.

35. The vehicles collided. At that stage the RAV-4 was within the bus/taxi lane and at 45 degrees. It appears that all but the rear wheels of the RAV-4 had entered the paved driveway. The front left side of the police vehicle impacted the right rear door and wheel of the RAV-4. The latter was turned over and came to rest on its roof.

36. The defendant and Constable Clark, after their vehicle came to rest, quickly went to render assistance to the plaintiff and her passenger and to control the accident scene. The defendant had observed no trafficator signal from the RAV-4 before it diverged.

37. It is apparent that a reasonably prudent driver of a vehicle intending to leave the east bound carriageway of Adelaide Avenue, whether to U-turn or enter the Lodge, would signal intention to turn right. Whether or not the risk of a vehicle travelling at high speed in the bus/taxi lane was reasonably foreseeable, vehicles travelling behind the turning vehicle would need to have been warned to slow down to avoid a rear-end collision with that vehicle as it slowed to effect the turn. It is, however, not suggested that any vehicle to the rear of the plaintiff's vehicle needed such a warning.

38. Despite the apparent force of the impact, the police vehicle's airbags did not deploy.

39. In cross-examination, the defendant conceded that closer to the Kent Street overpass he had observed vehicles on the median strip waiting next to the bus/taxi lane apparently joining and intending to join the east bound flow of traffic. On one occasion a vehicle so entering caused Constable Clark to expostulate and the defendant to brake sharply. It is not clear where that occurred but given that the defendant had to cross first the down ramp lane and then two moderately congested lanes of traffic to access the bus/taxi lane and then accelerate to 100 - 110 kph it seems that must have occurred in the (relatively) short distance for which the median strip was accessible before the Adelaide Avenue/Hopetoun Circuit overpass.

40. It was, or should have been apparent to the defendant that vehicles being prevented from travelling west would U-turn across the median strip to go back and might attempt to find some alternate route.

41. Of course, that form of hazard would have been signalled by a vehicle being observed upon the median strip apparently intending to U-turn and travel in an easterly direction. The likelihood of a vehicle travelling east deciding to U-turn so as to again travel west with a view to turning left either at National Circuit or at Hopetoun Circuit was not so remote that it could be regarded as improbable. However, it would reasonably be expected by a vehicle travelling at a reasonable speed in the bus/taxi lane, that the driver of such a vehicle, if aware of the approach of a bus or taxi, would signal its intent first.

42. The defendant candidly, I believe, conceded that he could not attest to whether or not the plaintiff had signalled an intention to turn right.

43. He conceded that, earlier, he had achieved speeds of up to 130 kph on the Tuggeranong Parkway whilst in priority one mode, though, he did not agree that he had travelled that fast on Adelaide Avenue. He was steady, he said, at 100 - 110 kph. Nor did he consider it likely that eastbound traffic would attempt to U-turn to travel west. However, he conceded that such a possibility had occurred to him, though not as something that was likely to occur. It was, nevertheless, a possibility that was not remote which he in fact foresaw.

44. In retrospect, the defendant agreed, it might have been better to have steered left or to have maintained a straight course rather than to have veered right. That, of course, does not evidence negligence on the defendant's part. In the `agony of the moment' what, with hindsight, was the wrong decision is not itself negligence unless no reasonable driver could have so decided. That was not the case here.

45. However, the defendant's evidence as to his speed was less than definite. He added to his assertion that his speed had been 100 - 110 [kph]:

`I believe the speed that I was travelling at 100 - 110 was an adequate speed and I don't believe I was doing, at any time, a great deal more than that.'

46. In re-examination, the defendant made it clear that the vehicles crossing or preparing to cross in front of him were to the west of the Hopetoun Circuit overpass.

47. It, therefore, seems more likely than not that the defendant sped up to 100 - 110 (or a bit more) after passing those vehicles. He estimated the distance from that point to the collision at `800 metres to a kilometre'.

48. Constable Clark confirmed the defendant's account of the events leading to the collision. There were some minor variations. He recalled both the east and west bound carriageways of Adelaide Avenue were full of traffic, `heavy traffic' and travelling slowly at `30 - 40 kph'. He considered that the police vehicle was travelling in the bus/taxi lane at `about 100 kph'. Then, he said, `On the top of the rise I saw ahead a white four wheel drive pull out into the bus lane'. It made `a sharp right hand turn'. It was then, he estimated 70 - 100 metres away. (In fact, the distance was measured at 150 metres). He shouted out in alarm to the defendant. As he did so the brakes were applied, `heavily'. He did not see any trafficator signal from the white four wheel drive. The police vehicle, he estimated, stopped `about 20 metres' beyond the collision. (In fact, it was measured by police at over 30 metres).

49. That picture does not sit consistently with the estimated speed of the police vehicle before braking at 100 - 110 kph. Even without the sudden deceleration constituted by the collision itself, a stopping distance of between 90 and 120 metres, as the defendant and Constable Clark themselves concede, suggests a commencing speed between 125 and 140 kph. (Leslie, P.A. and Britts, M.M.G., Leslie and Britts Motor Vehicle Law in NSW, 4th ed., Table 3, p 11-625).

50. Indeed, had the commencing speed been 100 to 110 kph, the stopping distance could not have exceeded 72.5 metres, the collision thus should either not have happened or been very slight.

51. It is, therefore, more probable than not that, notwithstanding that the defendant and Constable Clark were honestly attempting to give their best recollection, neither really observed or appreciated the police vehicle's speed as it topped the crest west of the Lodge. It is my opinion that the defendant, being understandably anxious to resume his duties, not expecting any other traffic in the bus/taxi lane, accelerated up to a speed that is consistent with the stopping distance actually achieved rather than the lower speed he recollected from his last observation of his speedometer. I expect that was back at the Adelaide Avenue overpass area.

52. It was foreseeable that, given the slow progress of traffic in the normal traffic lanes, a motorist unaware of the approach of the police vehicle, or mistaking the rapidity of its approach, might attempt, out of impatience, to enter and proceed along the bus/taxi lane. Even more was it foreseeable that a vehicle wishing to enter National Circuit might utilise the access driveway across the median strip.

53. In those circumstances, once the plaintiff moved to access the entrance driveway the collision was virtually inevitable.

54. Constable Clark, in his record of conversation with an investigating officer, Constable Jankowski, gave a somewhat curious answer to a question.

Q. `Do you think the manner in which he [the defendant] was driving was reasonable given the circumstances ... being the heavy traffic?'

A. `In hindsight, no, but at that time ... , yes.'

55. In my view, that answer supports the view that Constable Clark's assessment of the situation was that the defendant was proceeding at a speed safe enough for them but not if a vehicle turned into the bus/taxi lane ahead of them or had been proceeding, slowly, in that same lane. He also agreed with the assessment of traffic he gave to Constable Jankowski:

`Like on Adelaide Avenue, I mean there was so much of it happening really not one - not one sort of incident stands out. There were people merging from different lanes without indicating or anything like that, you know, and stopped on people's bumpers and sort of half in one lane and half in another lane and that. So there was a lot of that going on.'

56. That description is of traffic which would, I consider, have heightened the risk that, for whatever reason, a vehicle might diverge into the bus/taxi lane.

57. Both witnesses were of the view that, as they came over the brow of the hill, they observed the white four wheel drive vehicle pulling out of the traffic lane.

58. I do note, however, as alluded to above, that Mr Jamieson had measured the distance from the crest of the small hill to the crash site on the entrance driveway at 150 metres. I also note that the police sketch of the accident measured the police vehicle's travel beyond the crash scene at between 30 - 35 metres. Those figures tend to place the approach speed of the police vehicle at the higher end of the estimated range at the point where it topped the crest.

59. That speed, even allowing for the perceived need to re-fuel without undue delay, was clearly unsafe in the circumstances. It gave the police vehicle no chance to stop before a collision if someone, unaware of the police vehicle's approach decided to diverge into the bus/taxi lane. It was not as if no vehicle could lawfully do so, a taxi could.

60. It follows that I find that the defendant was negligent in travelling at a speed considerably above 110 kph, probably about 135 - 140 kph.

61. It is clear that, in engaging priority one, the defendant not only gave warning of his approach in the bus/taxi lane but also that he was entitled to priority over other vehicles.

62. The defendant relies on the following particulars of contributory negligence:

`(a) Failure to give way;

(b) Failure to take reasonable care for her own safety;

(c) Failure to keep a proper lookout;

(d) Travelling at a speed that was excessive, or excessive in the circumstances;

(e) Entering a bus lane and/or leaving a roadway when it was unsafe to do so;

(g) Failure to abide by the Australian Road Rules.'

63. The latter particular was, by amendment, particularised to include, ss 48, 78, 79, 126, 147, 148 and 154. Also invoked by the defendant were ss 33, 38, 305 and 306. They are as follows:

`33 Making a right turn

(1) A driver turning right at an intersection (except a T-intersection) must make the turn in accordance with this rule.

Penalty: Offence provision

Note:

"Intersection" and "T-intersection" are defined in the dictionary.

(2) If there is a road marking indicating how the turn is required to be made, the driver must make the turn as indicated by the road marking.

Note:

"Road marking" is defined in the dictionary.

(3) If there is no road marking indicating how the turn is required to be made, the driver must make the turn so the driver passes as near as practicable to the right of the centre of the intersection.

[Example diagrams1 and 2 - omitted]

...

38 Giving way when making a U-turn

A driver making a U-turn must give way to all vehicles and pedestrians.

Penalty: Offence provision.

Note: For this rule, "give way" means the driver must slow down and, if necessary stop, to avoid a collision - wee the definition in the dictionary.

...

48 Giving a right change of direction signal

(1) Before a driver changes direction to the right, the driver must give a right change of direction signal in accordance with rule 49 for long enough to comply with subrule (2) and, if subrule (3) applies to the driver, that subrule.

Penalty: Offence provision.

Note:

"Changes direction to the right" is defined in rule 45(3).

(2) The driver must give the change of direction signal for long enough to give sufficient warning to other drivers and pedestrians.

(3) If the driver is about to change direction by moving from a stationary position at the side of the road or in a median strip parking area, the driver must give the change of direction signal for at least 5 seconds before the driver changes direction.

Note:

"Median strip parking area" is defined in the dictionary.

(4) The driver must stop giving the change of direction signal as soon as the driver completes the change of direction.

Penalty: Offence provision.

(5) This rule does not apply to:

(a) the driver of a tram that is not fitted with direction indicator lights, or

(b) the rider of a bicycle making a hook turn.

Note:

"Bicycle" and "tram" are defined in the dictionary.

Note: Rules 34 and 35 deal with bicycles making hook turns.

...

78 Keeping clear of police and emergency vehicles

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Penalty: Offence provision.

Note:

"Approaching", "emergency vehicle" and "police vehicle" are defined in the dictionary.

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

Penalty: Offence provision.

(3) This rule applies to the driver despite any other rule of the Australian Road Rules.

79 Giving way to police and emergency vehicles

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

Penalty: Offence provision

Note:

"Emergency vehicle" and "police vehicle" are defined in the dictionary.

Note: For this rule, "give way" means:

(a) if the driver is stopped - remain stationary until it is safe to proceed, or

(b) in any other case - slow down, if necessary, stop to avoid a collision,

- see the definition in the dictionary.

(2) This rule applies to the driver despite any other rule that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

...

126 Keeping a safe distance behind vehicles

A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.

Penalty: Offence provision.

...

147 Moving from one marked lane to another marked lane across a continuous line separating the lanes

A driver on a multi-lane road must not move from one marked lane to another marked lane by crossing a continuous line separating the lanes unless:

(a) the driver is avoiding an obstruction, or

(b) the driver is obeying a traffic control device applying to the first marked lane, or

(c) the driver is permitted to drive in both marked lanes under another provision of the Australian Road Rules or under another law of this jurisdiction, or

(d) either of the marked lanes is a special purpose lane in which the driver is permitted to drive under the Australian Road Rules and the driver is moving to or from the special purpose lane.

Penalty: Offence provision

Note:

"Marked lane", "multi-lane road", "obstruction", "special purpose lane" and "traffic control device" are defined in the dictionary.

Note: An overhead lane control device may require a driver to leave a marked lane - see rule 152.

Note: Drivers of certain long vehicles are permitted to use 2 marked lanes when turning at an intersection - see rule 28 (left turns) and rule 32 (right turns).

Note: Rule 95 deals with driving in emergency stopping lanes, and Division 6 of this Part deals with driving in other special purpose lanes.

148 Giving way when moving from one marked lane or line of traffic to another marked lane or line of traffic

(1) A driver on a multi-lane road who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.

Penalty: Offence provision.

Note:

"Marked lane" and "multi-lane road" are defined in the dictionary.

Note: For this rule, "give way" means the driver must slow down and, if necessary, stop to avoid a collision - see the definition in the dictionary.

[example diagram omitted]

(2) A driver on a road with 2 or more lines of traffic travelling in the same direction as the driver, and who is moving from one line of traffic (whether or not the line of traffic is ending) to another line of traffic, must give way to any vehicle travelling in the same direction as the driver in the line of traffic to which the driver is moving.

Penalty: Offence provision.

(3) Subrule (2) does not apply to a driver if the line of traffic in which the driver is driving is merging with the line of traffic to which the driver is moving.

Note: Rule 149 deals with giving way when lines of traffic merge.

[example diagram omitted]

...

154 Bus lanes

(1) A driver (except the driver of a public bus) must not drive in a bus lane, unless the driver is permitted to drive in the bus lane under rule 158.

Penalty: Offence provision

Note:

"Public bus" is defined in the dictionary.

Note: Rule 158 provides additional exceptions applying to this rule, and also provides a defence to the prosecution of a driver for an offence against this rule.

(2) A "bus lane" is marked lane, or the part of a marked lane:

(a) beginning at a bus lane sign, and

(b) ending at an end bus lane sign.

Note:

"Marked lane" is defined in the dictionary.

[Example diagrams omitted]

...

305 Exemption for drivers of police vehicles

(1) A provision of the Australian Road Rules does not apply to the driver of a police vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply, and

(b) if the vehicle is a motor vehicle that is moving - the vehicle is displaying a blue or red flashing light or sound an alarm.

Note:

"Motor vehicle" and "police vehicle" are defined in the dictionary.

(2) Subrule (1)(b) does not apply to the driver if, in the circumstances, it is reasonable:

(a) not to display the light or sound the alarm, or

(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

306 Exemption for drivers of emergency vehicles

A provision of the Australian Road Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the rule should not apply, and

(b) if the vehicle is a motor vehicle that is moving - the vehicle is displaying a blue or red flashing light or sounding an alarm.

Note:

"Emergency vehicle" and "motor vehicle" are defined in the dictionary.'

64. Section 305 exempts a police vehicle from compliance with the Australian Road Rules if, even though in priority one mode:

`(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply, ...

65. That exemption, relevantly so far as speed is concerned, does not exempt the defendant from liability in tort. As I have concluded, his speed was unreasonably excessive. It is unnecessary to find that the defendant breached the Australian Road Rules - see Winter v Commonwealth (1992) 112 ACTR 10; (1992) 111 FLR 275.

66. Although her passenger was not called, some other road users were called to give evidence as to the behaviour of the plaintiff's motor vehicle.

67. First was Mr Steven Bugden. He was driving a four wheel drive Toyota Hilux. He described the east bound traffic as "fairly heavy", travelling 60 - 70 kph.

68. He was, it seems, about four car lengths behind the plaintiff's vehicle and he observed the police vehicle, with lights activated, about `8 - 10 cars back'. His impression of its speed was vague:

`... it didn't appear, you know, to be coming flying through. It was travelling faster than what we were travelling though.'

69. Then, as it approached, he saw brake lights and the plaintiff's vehicle turn into the bus lane. There he explained, four vehicles between his and the plaintiff's vehicle, though traffic was virtually bumper to bumper. Plainly, the traffic could not have literally been bumper to bumper. A distance of not less than eight car lengths would thus be more likely. He then saw the police vehicle pass by. He then concentrated on his own safety. He was aware of the paved driveway but not of its precise location. He observed the fact that the collision had occurred and stopped to render assistance.

70. He agreed that the lights on the police vehicle were observable before the siren was audible, as would be expected.

71. He further agreed that he was unsure of his own speed. It could have been less than 60 kph.

72. There was tendered a statement from Mr Bugden's passenger Mrs Christine Bugden, his mother, who regrettably had since then died.

73. It was her recollection, as at 26 March 2003, that the traffic was moving at `about 40 kph to 50 kph'. They were, as I had inferred `about one car length behind the car in front of us'.

74. She heard the siren and saw the plaintiff's vehicle turn into the bus lane. She estimated the speed of the police vehicle as the plaintiff's vehicle turned, and this was it may be inferred, about 40 metres from impact, at `about 80 kph'.

75. A statement by another witness, Mr Stephen Farrugia, was tendered. He was unavailable to give oral testimony as he was overseas.

76. His description of the collision was also relatively vague. He said:

`I saw the police vehicle coming up the side rear. Um, they weren't going a lot faster than me, maybe twenty kilometres an hour faster than me. They were probably maybe fifty ... metres ahead of me and probably two or three car lengths before they got to the white RAV Four I think, it was. Um, the RAV Four pulled out in front of the police car. The police car appeared to brake. Ah - ah seemed to um nose down a bit.'

77. He estimated he was `[a] couple of hundred metres past that [the Hopetoun Circuit overpass] when I first saw the police car in my rear view mirror'.

78. The RAV-4 was then, he estimated, 50 metres in front of him when the police car passed him.

79. Those statements do not modify or explain the admissions made by the two police officers nor the objective facts which support the primary finding of negligence. Nor do they assist to establish that the driver of the RAV-4 could or should have seen the approaching police vehicle before she committed herself to the right hand turn.

80. That is the critical question. There is no evidence that the plaintiff signalled an intention to turn right (Australian Road Rules, s 48). Conversely, there is no evidence that the giving of such a signal before turning right would or could have been observed by the police vehicle so as to enable it to slow down or stop any earlier than it did. Nor is or could there be any suggestion that a vehicle was forbidden to turn right into the entrance driveway of the Lodge whether to enter the driveway itself or U-turn. In any event, the driver of the RAV-4 had the onus to exercise due care and avoid any risk of collision she could reasonably be expected to perceive.

81. There was, specifically, an obligation on the plaintiff under the Australian Road Rules to give way to the police vehicle by reason of ss 33, 78 and 79. However, failure to do so will be contributory negligence only if the turning driver had a reasonable opportunity to see and observe the approaching police vehicle. It seems likely that the speed of the police vehicle was such as to deprive her of such an opportunity.

82. In those circumstances, I bear in mind that the onus is on the defendant to prove that the plaintiff had failed to take reasonable care for her own safety. Whilst I cannot find positively that she did, I am not satisfied that she did not. In that respect, the defence of contributory negligence fails.

84. The plaintiff is now and was at the date of the accident a professional photographer. She was born on 27 August 1959 and is now aged 44 years. Previously she had worked in the retail trade and fashion design.

85. From 1995, having completed a photography course at University of Canberra, she has been a professional photographer. However, her earnings have not been significant it appears.

86. Her records disclose that for the year ending 30 June 2000, her net profit was $5,277.00. In the year ending 30 June 2001, however, it was $30,023.49. The accident was on 24 December 2001 and her disabilities interrupted her earning capacity. Those earnings fell, for the next financial year, to $8,097. For the year ending 30 June 2003, they were $15,357.

87. She had on two occasions been earning so little, both before and after the accident, that she had sought Centrelink benefits. That was caused by the seasonal nature of her photography business.

88. The injury she sustained in the accident was mainly to the head and neck. The upper two cervical vertebrae were fractured. There was an accompanying loss of sense of smell (anosmia) due to disruption of the olfactory nerve. She had lost consciousness and suffered subsequently some fluctuating visual disturbance and double vision.

89. There was continuing right front-temporal headache and neck pain on the right side. A complaint was made of `lassitude'. There was some hearing loss, more on the right side.

90. Dr Newcombe, neurosurgeon, referred the plaintiff to Dr Hilton Stone who confirmed the hearing and sense of smell disabilities.

91. There was, Dr Newcombe found, a persistent reduction of neck movement.

92. The neck pain and restriction has diminished the plaintiff's capacity to engage in photography. The equipment is heavy and she can wear it from the neck only for limited periods. She eschews the `media scrum' type assignments. I consider that her earning capacity as a photographer has been diminished by about 50 per cent in terms of effective earnings.

93. In the year before the accident I note that she had suffered depression but had recovered by December 2001.

94. Dr Newcombe in September 2003 reported that there were more frequent migraine headaches. (The plaintiff had some prior history of headaches). She is distressed by her loss of sense of smell and, as a consequence, of taste.

95. Dr Stone, in April 2004, reported that the left side hearing was then normal. He considered the right side hearing loss `could well reverse'. It was mild. Nevertheless, Dr Stone is not confident that the loss of smell and taste will reverse.

96. The vision problems were examined by Dr Robert Lones. The focussing problem he attributed to the collision. He prescribed a regime of exercises. On 16 March 2004 he reported that he had not seen the plaintiff since March 2002. I can only assume that, since the plaintiff did not follow up with Dr Lones any residual problem is slight.

97. The plaintiff takes Panadol or Panadeine Forte for migraines - a pack of 20 lasts her about two weeks at a cost of $13.00.

98. As a result of the accident she moved out of her residential unit and moved into her partner's home for about 12 months. She required some assistance for a couple of months and was wearing a hard cervical collar for about six months. There was a recurrence of depression. That resulted in a separation from her partner. In October 2003, she suffered a miscarriage. That no doubt added to her depression but cannot be attributed to the accident.

99. The plaintiff noticed after the accident that a number of dental fillings became loose and she consulted a dentist who quoted $20,175 for dental treatment. However, there was no indication in her report that all of that work was required as a result of the accident. Nor, although loosening of fillings is an understandable consequence of a severe blow to the head, is there evidence as to the number of teeth so affected.

100. The defendant's counsel (Mr Deakin QC) tendered some medical reports from Dr Robert Craven and Dr Keith Lethlean, neurologists. Those reports were supportive of the plaintiff's account of her disabilities and confirm my favourable impression of her that she did not exaggerate her disabilities.

101. Dr Craven in his report dated 11 April 2003 agreed that a limit of 20-25 hours of work per week was reasonable. He considered further improvement unlikely.

102. Dr Lethlean (report dated 10 February 2004) noted that the neck condition had deteriorated over the previous two months.

103. Dr Lethlean considered that needed investigation. That has not, at the date of trial, been done. The plaintiff's current complaints seem to have resolved to previous levels.

104. I proceed, therefore, on the assumption that it is likely that the current level of disability will continue. There will, however, be periods of exacerbation.

105. The plaintiff's disabilities are serious, though not so serious as they might have been. She made, in the circumstances, a quite remarkable recovery.

106. Nevertheless, there is a moderately severe level of cervical disability particularly limiting, and rendering painful, the plaintiff's pursuit of her chosen career.

107. As I disclosed to counsel, the plaintiff has taken photographs of me professionally and I offered counsel the opportunity to inspect her work. They declined but it is accepted, I believe, that she will not lack work because of any lack of skill.

108. So far as general damages are concerned given the multiple disabilities, I consider $80,000 to be appropriate. I attribute $40,000 to the past generating interest of $2,000 (in round figures).

109. Out of pocket expenses are not contested at $10,952.30.

110. Past loss of earnings cannot be quantified with precision but I accept a net loss after tax of about $10,000 per annum plus a total loss of, net, $20,000 for six months. The past loss, albeit imprecisely, I therefore assess at $30,000. I add interest at a commercial rate, halved because of the steady accrual of that loss (apart from the first six months). In assessing that first six months I take account of the assistance that the plaintiff paid for to maintain good will. In round figures that generates interest of $3,750.

111. Future medical expenses I assess at $13 per fortnight and, in round figures, allow at $5,750.

112. Future loss of earnings is, as Mr Deakin pointed out, more imprecise than usual. However, I am satisfied that the plaintiff's diminution in working capacity is productive of real loss of the order of $10,000 per annum. Allowing for the usual vicissitudes of life I would award $100,000 for this head of damage.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Counsel for the Defendant: Mr Deakin QC and Mr Nolan

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

Parties

Cases Cited (2)