TORTS - Negligence - road accident cases - head-on collision - liability as between plaintiff driver and defendant driver - relevance of Australian Road Rules - causative breach - failure to maintain proper lookout - failure to keep left - opportunity to take evasive action. - TORTS - Contributory negligence - road accident cases - relevance of Australian Road Rules - error of judgment on part of plaintiff - plaintiff's duty of care - breach on part of plaintiff - significance of causative breach on part of plaintiff. - EVIDENCE - absence of explanation or elucidation as to material issues of fact on part of defendant notwithstanding the admission in the plaintiff's case of his statement to Police - availability of Jones v Dunkel inference in favour of plaintiff - application of principles. - [2007] NSWSC 128 - NSWSC 2006 case summary

Judgment (46 paragraphs)

[1]

CITATION : ROTH v. RTA & ORS [2007] NSWSC 128

[2]

DECISION : The appropriate finding in terms of the respective responsibilities of the plaintiff and the defendant is that the plaintiff was 60% responsible and the defendant 40% responsible for the accident.

[3]

CATCHWORDS : TORTS - Negligence - road accident cases - head-on collision - liability as between plaintiff driver and defendant driver - relevance of Australian Road Rules - causative breach - failure to maintain proper lookout - failure to keep left - opportunity to take evasive action. - TORTS - Contributory negligence - road accident cases - relevance of Australian Road Rules - error of judgment on part of plaintiff - plaintiff's duty of care - breach on part of plaintiff - significance of causative breach on part of plaintiff. - EVIDENCE - absence of explanation or elucidation as to material issues of fact on part of defendant notwithstanding the admission in the plaintiff's case of his statement to Police - availability of Jones v Dunkel inference in favour of plaintiff - application of principles.

[4]

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Law Reform (Miscellaneous Provisions) Act 1946

[5]

Blatch v. Archer (1774) 1 Cowp. 63 Jones v. Dunkel (1959) 101 CLR 298 Payne v. Parker [1976] 1 NSWLR 191 Manly Council v. Byrne [2004] NSWCA 123 CASES CITED : State Bank of NSW v. Brown [2001] NSWCA 22 Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492 Ooslyn v. Berryman (2003) 214 CLR 552 Liftronic Pty. Limited v. Univer (2001) 75 ALJR 867 Wynbergen v. Hoyt's Corporation Pty. Limited (1997) 75 ALJR 65 Evans v. Lindsay [2006] NSWCA 354

[6]

PARTIES : ROTH, Maria v. ROADS & TRAFFIC AUTHORITY & ORS

[7]

Plaintiff: B. Toomey, QC./M. Holz COUNSEL : 1st Defendant: J. Maconachie QC./D. Weinberger 2nd Defendant: M. Joseph, SC/S. Glascott 3rd Defendant: C. Adamson, SC./B. Kelleher

[8]

Plaintiff: Allanson Benn SOLICITORS : 1st Defendant: Moray & Agnew 2nd Defendant: Phillips Fox 3rd Defendant: Abbott Tout

[9]

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

[10]

JUDGMENT 1 HIS HONOUR: The plaintiff commenced proceedings in the District Court by statement of claim filed on 8 April 2003 against the Roads & Traffic Authority of New South Wales ("RTA"), Wollondilly Shire Council and the third defendant, Mr. Michael Thomas O'Halloran, who was the driver of the vehicle that was involved in the motor vehicle accident in question that occurred on 20 April 2000 on Burragorang Road, The Oaks. On that date, at about 2.40 pm, the plaintiff drove her Holden car in a northerly direction along MR 259. At the same time, Mr. O'Halloran drove his Subaru vehicle in the opposite direction along MR 259.

[11]

History of the pleadings 2 On 29 August 2003, an amended ordinary statement of claim was filed in which the Roads & Traffic Authority of New South Wales and Wollondilly Shire Council remained respectively the first and second defendants and Mr. O'Halloran was named as the third defendant to the proceedings. The plaintiff alleged, in respect of the latter, that he was negligent in a number of respects, including failure to return to the kerb side lane after overtaking, failing to brake and move behind the vehicle that he was overtaking and overtaking another vehicle when it was unsafe to do so. 3 In an attachment to the statement of claim, it was asserted on behalf of the plaintiff that the accident was reported in compliance with s.71(1) of the Motor Accidents Compensation Act 1999 (the "Act") on 20 April 2000. Annexed to that attachment was a statement by the plaintiff setting out the reasons for her delay in giving notice until after six months following the motor vehicle accident. 4 The plaintiff also set out in the latter document the explanation relied upon for the proceedings not having been commenced within the time prescribed by s.109(1) of the abovementioned Act. No issue was raised at the hearing of the proceedings as to delay in giving notice or in relation to the commencement of proceedings. 5 On 22 April 2004, a notice of cross-claim (being the first cross-claim) was filed on behalf of Michael Thomas O'Halloran (cross-claimant) against the RTA (first cross-defendant) and Wollondilly Shire Council (second cross-defendant). In that cross-claim, Mr. O'Halloran claimed contribution towards any amount in respect of which he was found liable to the plaintiff and an order for costs. 6 On 15 June 2004, Wollondilly Shire Council filed a cross-claim against Michael Thomas O'Halloran claiming indemnity or contribution pursuant to s.5 of the Law Reform (Miscellaneous Provisions) Act 1946 and on the same date Wollondilly Shire Council filed a cross-claim against the RTA in which it also sought indemnity of contribution pursuant to the last mentioned Act. 7 On 8 November 2006, by consent, the third and fourth cross-claims were dismissed with each party to pay their own costs of those cross-claims. 8 On 9 November 2006, a verdict and judgment, by consent, was entered in favour of the first defendant and in favour of the second defendant and the plaintiff was ordered to pay the costs of each of those defendants. The first, second and fifth cross-claims were dismissed with each party to pay their own costs of those cross-claims. 9 The present hearing has been concerned only with the question of liability as between the plaintiff and the third defendant. As the third defendant, Mr. O'Halloran, is the only remaining defendant, he will be referred to in this judgment as "the defendant".

[12]

Facts 10 The plaintiff was aged 23 years at the date of the accident (date of birth, 30 March 1977) and she is presently 29 years of age. 11 The plaintiff commenced to overtake a utility vehicle, which was towing a trailer. It was driven by a Mr. Proud. Both vehicles were proceeding on a downgrade in a northerly direction. The Subaru vehicle driven by the defendant, Mr. O'Halloran, in the opposite direction (southbound) proceeded to overtake a slower moving vehicle, a truck, in an overtaking lane. There were, accordingly, three lanes and both the plaintiff's vehicle and that of Mr. O'Halloran were travelling towards each other in the same lane. 12 The plaintiff, on one possible view of the facts, was unable to return to her lane by reason of the presence of the utility vehicle and trailer. Whether that be so or not, according to the witness Mr. Proud, she veered to her right at the last moment into the defendant's vehicle and suddenly turned to the right, obviously by way of taking evasive action. However, both vehicles collided. 13 The point of the collision was some 953 metres west of Big Hill Road. The accident occurred just south west of the corner of an unnamed road. The accident scene was approximately 2.5 kilometres east of the village of The Oaks. 14 The roadway had a nominal width of 14.9 metres between marked continuous edge lines. It had a good standard asphaltic bitumen surface with marked edge lines. The road surface was dry at the time. 15 At the time of the accident, the southbound carriageway in which the defendant was proceeding divided into two lanes with segmented lane lines. The northbound lane had one lane with a painted line separating it from southbound traffic. The road configuration, accordingly, provided three marked traffic lanes on a moderately steep grade (about 10.5%). The downgrade, as earlier indicated, was for northbound traffic. The traffic lines, accordingly, consisted of one traffic lane in either direction and a shared centre lane for southbound traffic referred to in this judgment as the "overtaking lane". It is important to observe that this lane was also open to be used by northbound traffic when safe to do so for there was a broken line which permitted northbound traffic to enter it. Northbound or downhill traffic could overtake vehicles in the overtaking lane when conditions permitted. 16 Mr. H.K. Woodward, crash investigation engineer, considered the traffic markings for northbound traffic were incorrect and stated that this "led to problems" resulting in the accident. The markings, he stated, were corrected after the accident. The result of the changed line markings (to double continuos lines) was to prohibit northbound traffic utilising the overtaking lane. 17 Mr. Woodward opined that it would be possible for "a small car" in the process of overtaking a truck in lane one to be concealed from view of a driver travelling north (the plaintiff's direction of travel), in the process of overtaking any vehicle in lane three also travelling north:- "Under such conditions, it may be possible for both overtaking vehicles to be in the centre lane oblivious to the other's presence until they became visible to one another as the curve is negotiated. As is most probable in this crash, by the time both drivers became aware of the other, there was insufficient time for them to take evasive action." 18 The plaintiff, when interviewed by police, told them that she had no recollection at all of the accident. The plaintiff gave evidence that she did not have any memory of the accident. She had been hospitalised as a consequence of her injuries until 30 June 2000. She said that she provided an interview to Senior Constable Spaulding at Camden Police Station in August 2000. 19 A copy of the electronically recorded interview was tendered and marked as Exhibit C in the proceedings. 20 In the course of cross-examination by Mr. Joseph, SC., who appeared on behalf of Wollondilly Shire Council, the plaintiff stated that she was familiar with the roadway, she and her family having lived close by for some time as at the date of the accident. She was unable to recall the purpose of her trip on the day of the accident. She stated that the car that she was driving was a Holden Commodore and it belonged to her husband. She had not driven it as much as he had done.

[13]

Accident investigation evidence 21 Senior Constable Spaulding's statement (Exhibit A) was based on his inspection on 29 April 2000. It established:-

[14]

(a) The plaintiff travelled in a generally northerly direction along a section of roadway negotiating a slight right hand bend on a steep downhill grade.

[15]

(b) The defendant had approached the area, southbound, negotiating a slight left hand bend on a steep uphill grade.

[16]

[17]

(d) The damage to the plaintiff's car, which was extensive, was concentrated to the front passenger side and front passenger door. The bonnet had sustained impact damage concentrated to the front passenger side.

[18]

(e) The defendant's vehicle had sustained extensive impact damage concentrated to the front passenger side portion. The front passenger side had been crushed rearward. The front driver's side guard was severely crushed inward onto the tyre.

[19]

(f) Located within the lanes travelling north towards the area of impact were three light tyre burn marks.

[20]

(g) Situated within lane one of the southbound travel was a tyre skid mark. This mark travelled in a southerly direction. (These are referred to later in this judgment).

[21]

(h) Situated predominantly within lane one (the kerbside lane) of southbound travel and the private driveway where the vehicles came to rest was a concentrated area of vehicle debris.

[22]

Physical facts concerning the roadway 22 In evidence, two reports were tendered on behalf of the plaintiff. First, a report from Mr. Hespe, previously mentioned, and, secondly, a report of Mr. H.K. Woodward, forensic crash investigation engineer, dated 15 July 2002. The physical features of the accident scene were related by photographs tendered in evidence, in all 16 photographs taken on the date of the accident which, in particular, show the line markings and other features as they were on that date. 23 A series of nine photographs were taken by the plaintiff's solicitor on 22 February 2001. They were also tendered in the plaintiff's case. 24 Several plans were tendered in evidence. Appendices 2 and 3 to the report by F.S. Hespe, chartered consulting engineer, dated 11 November 2005, I consider to be two of the most helpful plans. Appendix 2 was a survey plan dated 8 September 2005. 25 The roadway in the vicinity of the crash site ran generally in a north east/south west direction. For convenience in the present proceedings, the roadway was analysed and referred to in terms of it having a generally north/south axis. 26 The gradient of the roadway in the relevant area consisted of a reasonably steep downward gradient for traffic proceeding in a northerly direction. At the bottom of the grade, the road changed direction through an angle of 27 degrees on a sweeping right curve when travelling in a northerly direction. 27 The roadway on both sides was bound by a grass/gravel verge beyond the bitumen shoulder. The view both ways was described in Mr. Hespe's report as "open and unobscured". At the time of the collision, the roadway was dry and the weather was fine and sunny. 28 On 7 November 2006, a view was arranged in which I attended with counsel. I proceeded up and down the roadway taking into account relevant points of reference. 29 As matters stood at the date of the accident, there can be little doubt that this section of roadway was potentially dangerous, in that it was then open to traffic moving in both directions to utilise the overtaking lane. Investigations by Mr. Hespe established that in place at the time of the accident was an unbroken line for northbound traffic which permitted such traffic to enter the overtaking lane which in fact also formed part of the roadway for southbound traffic. Mr. Hespe observed that as at the time of his inspection, the lane lines between the north and southbound lanes had been changed from the segmented and continuous lines shown in the photographs to double continuous lines, thereby forbidding any movement from northbound to southbound lanes. Mr. Hespe's investigations revealed that these changes were effected by Wollondilly Shire Council on or about 30 August 2000, approximately four months after the plaintiff's accident. 30 At the time of the accident at the bottom of the hill on the relevant section of roadway on the eastern side of where the crash occurred and which the defendant passed was a sign for southbound traffic carrying the legend "overtaking lane 300 m ahead". Mr. Hespe stated that, according to Australian Standard AS1742.2 - 1994, "Manual of Uniform Traffic Control Devices Part 2: Traffic Control Devices for general use", the location of that sign was on the left side of the road, approximately 300 metres in advance of the start of the taper leading to the extra lane. The sign, it is said, is to give advance warning of the overtaking lane. 31 According to Mr. Hespe, the sign was not in the correct location as the distance from the sign to the commencement of the overtaking lane was not 300 metres but only 64.1 metres. 32 This latter fact, however, has not been shown to be of material relevance to the plaintiff's accident given the fact that Mr. O'Halloran was, in any event, very familiar with the section of roadway, and given also the sight lines that existed from the bottom of the hill to the top. 33 According to the survey plan to which I have earlier referred (Appendix 2 to Mr. Hespe's report), the longest sight line distance was between points marked B and D, some 493.6 metres and as between points marked A and D (lane 2 or the overtaking lane) the sight distance was calculated at 450.1 metres. This latter sight line is of importance in evaluating Mr. O'Halloran's ability to see the presence of the plaintiff proceeding in the opposite direction once she commenced her overtaking manoeuvre. It, of course, was also relevant to her ability to see the defendant's vehicle. 34 The submission made on behalf of the plaintiff was that Mr. O'Halloran had something like 400 to 500 metres of clear vision when he began to overtake, and the inference was that he therefore failed to keep a proper lookout. However, this submission must be examined with some care. The ability in the defendant to have seen the plaintiff's vehicle depends upon the point at which the plaintiff, in fact emerged into the so-called overtaking lane. 35 During the course of the plaintiff's submissions, Mr. Toomey, QC., for the plaintiff, emphasised that there was an incorrect reference by the experts for the defendants to the fact that the plaintiff was on her "incorrect side" of the road. Mr. Toomey said that this was wrong as, under the Australian Road Rules, the plaintiff had exactly the same right to be in the lane that the defendant was using as an overtaking lane "both of them had the right to move into that lane to pass and clear the lane" (plaintiff's opening submissions, t.5).

[23]

The Relevant Road Rules - The National Transport Commission (Road Transport Legislation - Australian Road Rules) Regulations 2006 (the "Australian Road Rules") 36 By reason of the potential for conflict in the use of a shared overtaking lane, a good deal of attention focussed upon the relevant road rules. 37 Rule 130 of the Australian Road Rules provides that where a driver is travelling on a road (or a section of road as is the case here) which has been sign-posted "Keep Left Unless Overtaking" the driver (in this case the defendant) must not drive in the right lane unless one of the circumstances specified in sub-rule 130(2) applies. In this case, sub-rule 130(2)(b) ("the driver is overtaking") is the only category of exception or "excuse", as it were, available to the defendant to justify his driving in the right lane instead of in the left lane. 38 A "Keep Left Unless Overtaking" sign applies to that section of road between the point at the side of the road where the sign has been erected and continues to apply until the nearest of either a sign at the side of the road or markings on the road indicating that the overtaking lane will end and traffic should move to the right lane: sub-rule 130(3). 39 A driver is permitted to use a lane which is not the left lane but essentially the "other side of the road" for the purposes of overtaking a slower-moving vehicle travelling in the driver's left lane: rule 134. However, a driver is permitted this manoeuvre only where there is a broken dividing line (between "vehicles travelling in opposite directions": rule 4) or the nearest of two dividing lines is a broken line: sub-rule 134(2). In this case, the nearest of the two dividing lines to the plaintiff was a broken line. The plaintiff was therefore permitted to use the other side of the road for the purposes of overtaking, subject to the conditions specified in rule 140. 40 Rule 140 provides that a driver is not permitted an overtaking manoeuvre unless two preconditions are met:-

[24]

(a) that the driver has a clear view of any approaching traffic, and

[25]

(b) that the driver can safely overtake the vehicle. 41 The term "approaching" is defined in the dictionary to the Rules from the point of view of each driver as "approaching [traffic] from any direction": rule 4. "Overtake" is defined (rule 4) as the action of or a manoeuvre comprising the following actions:- "'Overtake', for a driver, means the action of:- (a) approaching from behind another driver travelling in the same marked lane or line of traffic, and (b) moving into an adjacent marked lane or line of traffic (whether or not the lane or line of traffic is for drivers travelling in the same direction), and (c) passing the other driver while travelling in the adjacent marked lane or line of traffic." 42 Both the plaintiff and the defendant were bound by rules as to overtaking and the use of adjacent marked lanes. Both parties were bound, under the road rules, to assess their proposed overtaking manoeuvre in terms of rule 140. Therefore, both parties were required to consider whether they had a clear view of any approaching traffic (rule 140(a)) and whether it was safe to overtake another slower-moving vehicle (rule 140(b)). 43 In addition to the different obligations imposed on the plaintiff and defendant under the Road Rules, the difference between the defendant's overtaking manoeuvre and the plaintiff's overtaking manoeuvre was, in real terms, the difference between the permitted use of an overtaking lane provided for that purpose and the permitted use of the other side of the road. 44 Experience suggests that overtaking lanes, or indeed additional lanes on highways, are intended to maintain the flow of traffic by providing faster-moving vehicles with a lane to overtake or pass slower-moving vehicles. Very often these extra lanes are provided in circumstances where the terrain inclines slower moving and/or heavier vehicles to slow down during their ascent. It is often the case that there is no overtaking lane provided on the downhill run so to speak. 45 The use of an overtaking lane provided for that purpose permits a routine and inherently safe manoeuvre. This was the use to which the defendant put the "overtaking" lane. By using the right lane to overtake a slower-moving vehicle, a driver is doing no more than travelling in the lane immediately adjacent to oncoming traffic - something that a driver would ordinarily do on a dual carriageway where there is no overtaking lane and they are not overtaking. The use of the other side of the road in the circumstances that operated in this case, however, for the purposes of overtaking is an inherently dangerous manoeuvre as the most obvious and catastrophic risk is the risk of a head-on collision. Where an overtaking lane is provided, vehicles not overtaking are required by a "Keep left" sign to travel in the left lane. An evident policy behind this is to facilitate the use of the right lane for the purpose of overtaking by keeping it otherwise free for all permitted uses. The witness Mr. Proud 46 Mr. John David Proud, who was familiar with the road, was an important witness to the accident. He provided a statement dated 30 April 2000 to police. He was driving his white Ford Falcon utility with a box trailer in a northerly direction along Burragorang Road at about 2.40 pm on 20 April 2000. There was a white truck travelling some distance in front of him. Although his speedometer was not in working order, he gave his estimated speed as at 80 to 90 kilometres per hour. Plainly, the estimate of his own speed and that of the plaintiff's vehicle at around 110 kilometres per hour can be taken as only approximate estimates. The truck in front was travelling 50 to 60 metres ahead. 47 When Mr. Proud was:- "… about one third of the way down the big hill, I noted a blue Commodore coming up beside me. This was the first time I saw this car. I would guess the speed of the Commodore to be around 110 kilometres per hour. 7. Around the same time, I noticed two cars side by side travelling in the southbound lanes towards the Oaks … when the nose of the Commodore was in line with my shoulder, I could hear the car sliding. It wasn't a screech noise. 8. I focused on the car that was going south in the lane closest to the centre lines. The car veered to the left. I saw the Commodore veer to its right …" 48 Mr. Proud also gave a statement to an investigator about four years after the accident dated 3 March 2004 (Exhibit K). I will refer to this later in the judgment. 49 In cross-examination, Mr. Proud estimated the distance from the crest of the hill to the bottom at 700 or 800 metres. However, that estimate must be treated with caution, given the obvious margin for error in making such an estimate. At an early point in the cross-examination, he stated that, when he first saw the plaintiff's vehicle "we were up near the top of the hill, comes down in two sections". 50 Mr. Proud said it was a second or fractions of a second from the time he first noticed the blue Commodore and the collision. However, later stated in cross-examination, he said it was "maybe two seconds, I don't know". Mr. Toomey, QC. cross-examined him at some length on this aspect. On his evidence as to the distance between the two vehicles, his evidence of a second or fractions of a second clearly could not be taken as accurate. It would have to have been a longer period than that. 51 In relation to his statement, that when he was approximately one third of the way down the hill and noticed the blue Commodore and that about that time he noticed two cars side by side travelling in the southbound lanes, he was asked in cross-examination:- "Q. Can you tell us where on the hill you first saw the Commodore coming up beside you? A. In relation to what? Like where on the hill? It is a pretty big hill. We were up near the top of the hill, comes down in two sections. Q. Can you think of any object on the hill which you can tie it to? A. At the time I wasn't looking for objects on the hill, I was concentrating on what I was doing, driving." 52 Mr. Proud, in cross-examination, stated that, when he first saw the two southbound vehicles side by side, they were "down the bottom of the hill". 53 In further cross-examination, Mr. Proud was questioned about the statement dated 3 March 2004 taken from him by the investigator on behalf of the plaintiff. In that statement that the plaintiff wrote:- "When I was about level with the double telegraph poles, I observed a blue Commodore pulling out to overtake my vehicle." 54 Ms. Adamson, SC., for the defendant Mr. O'Halloran, criticised the way in which this latter statement was taken, for it became clear that it was the investigator who suggested the location of the two telegraph poles as a significant landmark. Mr. Proud, in cross-examination, made it clear that he had not been observing and did not notice any structure at the time he first saw the Commodore which, in his statement to the police, he put at about a third of the way down the hill. As earlier mentioned, in oral evidence he indicated that that was "up near the top of the hill". In cross-examination on his statement of 3 March 2004, he said, in fact, he was focusing on the road and wasn't looking at the double telegraph poles or anything else except the roadway and the traffic. He stated that the investigator suggested to him that that was the relevant point. He stated:- "… he suggested, 'were you about here' and I said 'yes, I might have been here'." 55 It was, of course, quite inappropriate for the investigator to be suggesting to a witness the point at which he had made a relevant observation. I have accordingly, approached this aspect of the evidence in Exhibit K as to the point at which he first saw the Commodore with considerable caution. Having said that, it must be acknowledged that the location of the two telegraph poles is not inconsistent with Mr. Proud's original statement to police as to where he first noticed the plaintiff's vehicle when it commenced to overtake. 56 I note at this point that the two telegraph poles are located approximately 202 metres from where the impact occurred. 57 In his second statement, Exhibit K, Mr. Proud stated there was about 200 to 300 metres between the two vehicles when the plaintiff's vehicle pulled out to overtake him. This, as discussed below, is potentially an important piece of evidence. Mr. Proud clarified in cross-examination that the plaintiff, after she commenced to overtake, attempted to stop and did not actually overtake him. He estimated that at the time he first saw the Commodore, Mr. O'Halloran's vehicle was probably 150 or 200 metres away. This, again, is an important observation. "Q. Now, at the time you first saw the Commodore, how far do you say she was away from the Subaru (Mr. O'Halloran's vehicle)? A. I've got no idea. Probably 150, 200 metres. I don't know. How far down the hill are we?" 58 Mr. Proud denied, when it was put to him, that he had sped up when the plaintiff commenced her overtaking manoeuvre. He further denied being angry at being overtaken and did not increase the speed of his vehicle to prevent the plaintiff's car from overtaking. 59 Mr. O'Halloran made a statement to police dated 6 May 2000 (Exhibit E). Mr. O'Halloran was not called to give evidence. His statement was tendered in the plaintiff's case. I will comment further on this fact below. The defendant was 49 years of age at the date of the statement and on the day in question he was travelling to his home address from work. This suggests that it was a familiar route for him. 60 He said that shortly after the overtaking lane commenced:- "… I started to overtook (sic) the truck. At that point, you start to climb a bit of a hill. I was travelling at around 80 to 90 kilometres per hour and I was still in the overtaking lane, I can't recall any reason why I didn't merge back into the inside lane. I normally drive in the kerbside lane. 5. The road flattens out prior to going up the big hill. Just as I came to the top of the first rise, just coming onto the flat part, I noticed a Commodore, it was at that point at the top of the rise that I was first aware of the Commodore in my lane heading towards me. At first sight the Commodore would have been somewhere between 50 to 100 metres in front of me. 6. It was such a surprise to see the other car and the distance so small and closing rapidly. I don't think I took any evasive action, I don't remember taking any …" 61 As Mr. O'Halloran's statement to police was given a little over two weeks following the accident, his account, accordingly, was considered one unaffected by the immediate shock of the accident. 62 The following observations are made in relation to Mr. O'Halloran's statement:-

[26]

(a) It is apparent from paragraphs 3 and 4 of his statement that he was familiar with Burragorang Road. It was a route, as I have noted, that he travelled between home and work. Proceeding southwards he stated "I normally drive in the kerbside lane" .

[27]

(b) In undertaking an overtaking manoeuvre the relevant matters include the relative speed of Mr. O'Halloran's vehicle (estimated at around 80 to 90 kilometres per hour) to the truck he was about to overtake, the fact that he was overtaking on an upward incline and was overtaking in a lane which was, as at the date of the accident, open to use by traffic travelling in the opposite (northerly) direction.

[28]

(c) Although the topography and sight lines were such that Mr. O'Halloran ought to have been able to see the Commodore from about the time it commenced to overtake Mr. Proud's vehicle, Mr. O'Halloran stated that he did not see the Commodore until he came to the top of the first rise, the plaintiff's vehicle then being estimated by Mr. O'Halloran at between 50 to 100 metres in front of him.

[29]

(d) In consequence of his awareness of the position of the plaintiff's oncoming vehicle and the relative speed of the vehicles, he did not consider that he took any evasive action and does not remember taking any. This, however, is not consistent with Mr. Proud's evidence who saw the defendant swerve to the right at the last moment.

[30]

(e) On his own account, Mr. O'Halloran's custom was to travel in the kerbside line and that, having entered the overtaking lane for the purposes of his manoeuvre, he stated "I can't recall any reason why I didn't merge back into the inside lane" . This statement imports the suggestion that there was no obstruction or other reason as to why he could not have returned to the inside lane or kerbside lane immediately after having passed the other vehicle. It also established that it was customary for him to do so once having overtaken another vehicle on this particular stretch of roadway.

[31]

(f) Mr. O'Halloran's perceptions and memory of the event do not appear to have been adversely affected. He stated that whilst seated in the vehicle following the accident, he was conscious of what had happened, who he was and where he was. At the time of the accident it is clear that he was an experienced driver, having held a licence for some 31 years and drove approximately 700 kilometres per week. 63 I will deal firstly with a separate matter of contention made on behalf of the plaintiff concerning Mr. Proud. I do not consider that it is open, on the evidence, to make a finding that Mr. Proud increased his speed which resulted in difficulty for the plaintiff in returning to her northbound lane before the collision. There is simply no evidence permitting an inference to that effect to be drawn. Additionally, Mr. Proud strongly denied it. Although his recollections of the incident, particularly on matters as to timing, were far from perfect, he overall impressed me as an essentially honest witness. 64 I accept, as Ms. Adamson observed, that, had Mr. Proud, in fact, engaged in such a dangerous manoeuvre in effect forcing one car to drive into the path of another (based on the evidence of two cars side by side), then Mr. Proud should have been joined as a defendant in the proceedings. The fact that he was not, it was said, indicated the insubstantial nature of the allegation. I accept that submission. 65 I consider on Mr. Proud's evidence that the plaintiff commenced to brake, described as a "sliding" noise, at the point when she was approximately level with his vehicle. The inference is that she, at that point, appreciated that the defendant's vehicle was occupying the overtaking lane and was or was probably unlikely to return to the eastern lane in time to avoid a collision. If, at that point, the defendant's vehicle was approximately 400 metres away, then it is more likely, in my opinion, that the plaintiff would have completed her overtaking manoeuvre. The fact that she commenced to brake, suggests that the defendant was closer to her and in a position where a collision could well occur. The difficulty, however, arises in identifying the point the defendant had reached when the plaintiff commenced to overtake Mr. Proud's vehicle and drew level with it. I will return to this aspect shortly. 66 So far as the plaintiff's driving is concerned, I accept the submission so far as it goes, that the plaintiff with her siblings and young child in the car was unlikely to have proceeded recklessly. It is, however, difficult to draw any further inference from those facts. I also consider it unlikely that during the course of her attempt to overtake Mr. Proud's vehicle, the plaintiff was distracted, not generally looking to the roadway ahead. In other words, I do not consider at that point it is likely that the plaintiff would have been distracted, but rather, that she would have been concentrating on completing the overtaking manoeuvre. That does not mean, however, that she looked ahead as far as was possible. If she had done so, she would have seen the defendant's vehicle when it was proceeding at the bottom of the hill. 67 On the basis of those inferences and findings, the question remains as to why the plaintiff would have, as Mr. Proud contended, commenced to brake when part way through the overtaking exercise. It is apparent that it was the position of the defendant's vehicle that had caused her apprehension and accounts for her braking reaction. Whether this was based on mis-judgment or not is difficult to determine without her version of events. 68 A factual issue to be closely evaluated is the submission for the plaintiff whether the defendant's car was a minimum of 370 metres away when the plaintiff pulled out to overtake. Another important issue is whether the defendant, as senior counsel for the plaintiff contended, had sufficient time to be able to move into the left hand lane before the collision. The literal terms of Mr. O'Halloran's statement (paragraph 4) as discussed further below indicates that he had actually completed overtaking the truck but continued from that point to climb the hill whilst remaining in the overtaking lane (see sequence of events set out in paragraph [103]. Mr. Proud stated (Exhibit K) that the defendant's vehicle started to overtake the other vehicle "about level with the 'keep left when overtaking' sign". The position of that sign is shown on the plan, Appendix 3. 69 The evidence as to the position of the defendant's vehicle in relation to the point of impact is then, to some extent, assisted, firstly by the evidence of Mr. Proud whereby he states that when he was level with the double telegraph poles (or a third of the way down the big hill) there were two cars heading south coming towards him and the fact that they had just entered the section of the road that included an overtaking lane. This evidence puts the defendant at a position at or prior to the commencement of the "first rise" in the hill on the relevant stretch of roadway. 70 By reference to Appendix 3 to Mr. Hespe's report, the point at which the overtaking lane commences for southbound traffic is at chainage 427.27. At point marked E, chainage 518.6, an overtaking vehicle would have the benefit of the full width of the overtaking lane and from that point to the point of impact (chainage 720) indicates that the defendant had available approximately 200 metres or a little less in which to overtake and complete his manoeuvre. 71 From the defendant's statement, he had been following a truck as it left a nearby village and he does not make any suggestion of any difficulty in overtaking the truck. As a matter of inference from paragraph 4 of the defendant's statement, the truck was not travelling at a fast speed. The defendant does not, in his statement, suggest there was any reason why he could not have merged back into the inside lane. The evidence as to distances and speed so far as the defendant's position on the roadway is concerned indicates that he ought to have been able to complete the manoeuvre and move to his left lane prior to the point of impact. This, together with the fact that he stated that he first saw the Commodore somewhere between 50 to 100 metres in front of him, supports an inference that he was not looking sufficiently far ahead to detect the plaintiff's vehicle when it pulled out to overtake at an earlier point up the hill at or in proximity to the two telegraph poles which were located 202 metres from the point of impact and to move to the inside southbound lane. This is to be seen in the context in which the defendant was familiar with the relevant stretch of roadway and, in particular, must be taken as having actual knowledge of the fact that the overtaking lane was available for use by traffic proceeding in both directions. 72 On the question of causation, it was submitted for the plaintiff that, if the defendant had been maintaining a proper lookout and had seen the plaintiff's vehicle some 300 or 400 metres ahead, the collision would not have happened as there was obstruction or other circumstance to prevent him from moving into the left lane in accordance with and as required by the Australian Road Rules. On this basis it was contended, one can readily infer that his alleged failure to maintain a proper lookout and to move into the left lane after having overtaken the truck was a causative breach.

[32]

The plaintiff's submissions 73 In the plaintiff's written submissions, it was observed that with the plaintiff was with her 11 year old brother who was killed in the accident, her seven year old sister, who was injured, and the plaintiff's nine month old baby, who was essentially unharmed. 74 It was submitted that, the Court having had the advantage of assessing the plaintiff when she gave evidence (although she could not remember the circumstances of the accident) would consider it extraordinary that such a person would recklessly expose her child and young siblings to the risk of a head-on collision. 75 It was submitted on behalf of the plaintiff that the relevant facts as to distances and speed would establish that the plaintiff was within the view of the defendant for a minimum of 371 metres (based upon the distance between the two cars when the plaintiff began overtaking). The relevant range of distances was 418 metres maximum (plaintiff 215 metres from the point of collision plus the maximum distance travelled by the defendant 203 metres) and a minimum of 371 metres (215 metres plus the minimum distance travelled by the defendant, 156 metres). 76 It was submitted that on the basis of the defendant's statement, the defendant first saw the plaintiff when she was a maximum of 100 metres from him and possibly as close as 50 metres from him (paragraph 5 of Mr. O'Halloran's statement). 77 It was emphasised on behalf of the plaintiff that, given that the overtaking lane could be used by vehicles travelling both ways, the importance of maintaining a proper lookout for the presence of the plaintiff's vehicle was critical. Failure to observe the plaintiff's vehicle prior to the time that the defendant says he did, it was contended indicates negligence of a very serious character. 78 It was further submitted in this respect that if the defendant had been keeping a proper lookout and seen the plaintiff's vehicle 300 or 400 metres ahead of him, then the collision would not have happened. Emphasis was placed upon the fact that there was nothing to stop the defendant from moving left into the kerbside or eastern lane as, it was submitted, was in fact required by Australian Road Rules. 79 As Mr. Hespe, engineer, noted in his report, there is no suggestion of the defendant having slowed his vehicle or taken evasive action in time prior to the impact in the circumstances of the fast moving events. Mr. Hespe suggested that, had he taken evasive action or reduced speed, then the accident may have been avoided. 80 After the start of the tapered overtaking lane, there was located, at a point approximately 100 metres past that point, a sign "keep left unless overtaking". In the plaintiffs submission, this was not a request but a direction under the Australian Road Rules. This, it was said, indicated that overtaking was to be undertaken in circumstances whereby a driver must remain in the second or overtaking lane only so long as an overtaking manoeuvre was being undertaken. This was of particular importance in the present case given that northward bound traffic coming down the hill was permitted to enter the overtaking lane.

[33]

The defendant's submissions 81 Ms. Adamson, SC., on behalf of the defendant, drew attention to the physical evidence left on the roadway as a consequence of the conclusion. This included the tyre marks and photographic evidence (in particular, photographs 11, 12, 13 and 14 of Exhibit F) all of which was consistent with what was described as "a very high speed collision where it appears that probably neither driver had sufficient time to reduce their speed or do much more than change direction to avoid the collision". The evidence suggested, it was observed, that it was only a fairly short time before the point of impact that evasive action was taken by the drivers. Ms. Adamson also relied upon the defendant's statement as to first sighting the plaintiff's vehicle at 50 to 100 metres ahead as consistent with a high speed collision where neither vehicle had much chance of avoiding the collision. 82 Ms. Adamson further relied upon Mr. Proud's evidence that the concreter's truck, which was 50 to 100 metres in front of him, was approximately in line with the point of impact as further supportive of the proposition that the accident happened quickly and was consistent with the evidence as to the sliding noise referred to by Mr. Proud. 83 Reference was made to Exhibit H which depicted a tyre mark from the plaintiff's vehicle of 11 metres in length and a further tyre mark of four metres in length. It was said that these marks and the position of the vehicles demonstrated by Exhibit H and by the photographs establish "… it was a high speed collision. It appears that it was only fairly shortly before the point of impact that evasive action was taken by the drivers and there was considerable force, as shown by the amount of damage in the rotation of the Subaru through 180 degrees …". 84 Ms. Adamson submitted that the sign "keep left unless overtaking", being located at the bottom of a hill was to be understood as accentuating the disparity between faster and slower vehicles and that it was "an invitation" as it were for slower vehicles to use the left hand lane. It was submitted that the sign was not necessarily indicating that southbound drivers should appreciate or expect northbound traffic coming over into their lane, although that was a possibility that must be within their reasonable contemplation. 85 I find difficulty in accepting this latter submission. Both the plaintiff and the defendant were drivers who lived locally and were familiar with this stretch of roadway. The importance of understanding that the overtaking lane was available to traffic moving in both directions emphasised the need for a heightened level of vigilance. That is one practical reason for the "keep left" sign. Simultaneous use of that lane plainly potentially involved danger. I am unable to accept the submission that, in the circumstances whereby traffic proceeding in both directions was permitted to utilise the same lane for overtaking purposes, that a motorist need not act upon the basis of expecting northbound traffic. That is the very thing a southbound driver may well have expected or anticipated. 86 Ms. Adamson submitted that there was "a qualified prohibition" on cars northbound to be found in Road Rule 140. This Rule as set out earlier states:- "A driver must not overtake a vehicle unless:- (a) the driver has a clear view of any approaching traffic, and (b) the driver can safely overtake the vehicle." 87 It was submitted that, by reference to Road Rule 130 which applied to the defendant and Road Rule 140 which applied to the plaintiff, there was a "symmetry between their respective obligations. Rule 130 is the 'kept left unless overtaking' and the relevant prohibition is in subsection (2), the driver must not drive in the right lane unless the driver is overtaking, whereas, in 140 a driver must not overtake a vehicle unless the driver has a clear view of any approaching traffic and the driver can safely overtake the vehicle". 88 It was submitted that both Mr. Proud and the plaintiff must have had a view of the defendant as he was overtaking the other vehicle. 89 Counsel for the defendant also relied upon the relative driving experience of the plaintiff, who was said to be "a not particularly experienced driver" and the defendant was said to be a very experienced driver. In particular, it was emphasised that the plaintiff was not accustomed to driving the Holden Commodore and was not accustomed to making overtaking manoeuvres. Ms. Adamson made clear that there was no suggestion that the plaintiff had acted in a reckless or silly manner, but that there had been an error of judgment and "… an error of judgment is enough for negligence". 90 Ms. Adamson placed considerable emphasis on Mr. Proud's evidence that he saw the two vehicles proceeding in a southerly direction side by side. However, it cannot be overlooked that in the defendant's statement he plainly stated that "I overtook the truck" and, later, that he could not recall any reason "why I didn't merge back into the inside lane". 91 Ms. Adamson placed considerable reliance upon the submission that "… the incontrovertible part of Mr. Proud's evidence is when the plaintiff was overtaking him, he saw the two cars side-by-side …". Whilst it is true that Mr. Proud gave that evidence, the fact remains that on the defendant's own statement, he had, in fact, overtaken or passed the vehicle in front of him and could not explain why he had not moved to the inside lane. Ms. Adamson emphasised that she was contending that the defendant's evidence should be taken as an indication of the distance that the plaintiff was from the defendant when she first entered the lane, that is, 50 to 100 metres, such being consistent with the fast moving events as described by Mr. Proud. This, however, is not, as already mentioned, consistent with Mr. Proud's statement in Exhibit K that there were 200 to 300 metres between the two cars. The defendant's overtaking, as he said, commenced back at the "keep left" sign.

[34]

Analysis 92 The disposal by way of settlement of the plaintiff's claim against the first and second defendants resulted in the proceedings for determination focusing upon liability arising out of what was essentially a two car collision. The plaintiff, in establishing liability, was said to suffer the disadvantage that she had no memory of the incident apparently due to some form of brain damage suffered in the accident. 93 The defendant, as earlier indicated, was not called to give evidence. His version of events is to be found entirely within his statement to the police which was tendered in the plaintiff's case. 94 The essential issue between the parties was helpfully summarised in a document prepared by Ms. Adamson entitled "Defendant's summary of competing hypotheses". The plaintiff's hypothesis was described as being that the plaintiff and the defendant were in the centre lane for a relatively long period of time sufficient for the defendant to see the plaintiff and return to the left hand lane. 95 The defendant's hypothesis was that the plaintiff appeared in the centre lane when her vehicle was very close to the defendant's vehicle, such as to give him insufficient time to avoid the collision. The defendant cannot be held to be negligent because he veered to the left and not to the right. The summary document identifies the evidentiary basis relied upon for each hypothesis. 96 The resolution of the question of liability between the two parties must, of course, have close regard to the evidence given by Mr. Proud as well as to the evidence of the investigating police officer who gave evidence as to his observations following the accident. Mr. Proud, as earlier indicated, gave evidence as to the point at which he first became aware of the plaintiff's vehicle. On his initial version to the police, this was put at about a third of the way down, what he described as, the "big hill" and on his version to the investigator and in his second statement, 202 metres south from the point of collision near the point at which the double telegraph poles were located. 97 Mr. Toomey, QC. in submissions, taking this evidence as a point of reference, put that in order to allow for the length of Mr. Proud's vehicle and trailer, a further eight metres should be added to locate the distance at which the plaintiff commenced to overtake Mr. Proud, that is at about 215 metres from the point of collision. I accept that submission as consistent with the evidence. 98 In circumstances in which the plaintiff was unable to give evidence as to what speed she was travelling at, there was an acceptance based on Mr. Proud's estimates in the submissions on her behalf that she was travelling in the range of 95 to 110 kilometres per hour. The evidence as to the defendant's speed indicated that he was travelling at about 80 to 90 kilometres per hour. 99 The speed differential between the plaintiff and the defendant was a maximum of 30 kilometres per hour (on the basis of the plaintiff proceeding at 110 kilometres per hour and the defendant at 80 kilometres per hour) and a minimum of five kilometres per hour (the difference between the plaintiff doing 95 kilometres per hour based on Mr. Proud's evidence and the defendant proceeding at 90 kilometres per hour). 100 It is important to establish on the evidence the approximate distance that the two vehicles were apart at the time the plaintiff commenced her overtaking manoeuvre. This is a critical fact in the analysis of the evidence. The defendant relied upon his statement to police as indicating the distance was only 50 to 100 metres being based on his statement:- "At first sight the Commodore would have been somewhere between 50 to 100 metres in front of me". 101 In the plaintiff's submissions, it was contended that the relative distance between the two vehicles when the plaintiff commenced to overtake was much more than that. It was submitted that it was of the order of 400 metres and on that basis there ought to have been ample time for the defendant to have seen the plaintiff's vehicle and to have returned to the eastern lane from the overtaking lane. In arriving at this estimate, the following points need to be brought into account::-

[35]

• As to the distance travelled by the defendant - at 80 kilometres per hour, the minimum distance travelled by him would have been 156 metres. At 90 kilometres per hour, the maximum distance travelled by the defendant would have been 203 metres.

[36]

• On the basis that the plaintiff was approximately 215 metres away from the point of collision at the time she commenced her overtaking manoeuvre, and having regard to the abovementioned calculations of distance travelled by the defendant, the distance between the two cars at the point the plaintiff commenced her overtaking manoeuvre was within the range of 418 metres maximum and 371 metres minimum. The starting point for the calculation of 215 metres is, as earlier discussed, calculated by reference to the location of the double telegraph poles (202 metres from point of impact). 102 On these estimates, it was submitted on behalf of the plaintiff that one may infer, the plaintiff not recalling what her state of mind was at the time, should be taken as believing that there was time for her to pass Mr. Proud's vehicle and return to her side of the roadway and for the defendant's vehicle to return to the eastern lane from the overtaking lane. 103 It is important to restate the particular events and the order of those events as related by the defendant in paragraphs 4 and 5 of his statement dated 6 May 2000 (Exhibit E). The sequence is as follows:-

[37]

• When the overtaking lane started, the defendant overtook the white truck.

[38]

• The defendant, for a reason or reasons he cannot recall, did not merge back into the inside lane after completion of the overtaking manoeuvre.

[39]

• The road then flattened out as he proceeded prior to "going up the big hill". It was not until the defendant reached the top of what he refers to as "the first rise" and coming onto the flat part that he noticed the plaintiff's vehicle. It was at the top of that rise that he first was aware of the Commodore in his lane heading towards him.

[40]

• There was clearly a delay between the first and the third of the above three sequential events. 104 In relation to the stated sequence of events, it is of some significance to observe that the defendant did not state that he saw the plaintiff's Commodore vehicle first emerging into his lane, that is, the overtaking lane. The plaintiff's submission, which I accept, was that in reality the defendant was not in a position to say when the plaintiff's Commodore first emerged into the overtaking lane. His statement was simply that it was at the top of the rise that he first became aware of the Commodore "in my lane heading towards me". 105 The defendant has not, in my opinion, been able to provide or point to evidence that contradicts the evidence of Mr. Proud to the effect that the plaintiff commenced to overtake at least 202 metres from the point of impact. Given the uninterrupted sight line, both the plaintiff and the defendant should have been able to detect each other's presence well before 50 to 200 metres, indeed, in excess of 300 metres. 106 It is necessary to say something on the question of the absence of oral evidence from the defendant. As noted earlier, his statement of 6 May 2005 was tendered in the plaintiff's case. To that extent, this is not a case where there is no evidence of the defendant's version of events. However, that does not entirely deal with his failure to give evidence beyond his written statement. The statement given to the police does not address all issues of fact and it certainly does not deal with all issues of fact comprehensively. 107 This is a case, as I have earlier stated, where the plaintiff has no memory of the events and therefore was not in a position to give evidence. To that extent, the Court does not have the advantage of evidence from one of the two participants in the events. 108 The evidence of Mr. Proud does provide material which raises an important issue as to why, in circumstances of an unobstructed view, the defendant only first saw the plaintiff's vehicle, as he stated in his statement to police, 50 to 100 metres in front of him. Mr. Proud's statement on this issue raises matters that the defendant may have clarified, explained or contradicted had he been called to give evidence. Does the failure to call him then have evidentiary significance and, if so, in what respect? 109 I should firstly refer to the relevant evidentiary principles. They may be summarised in the following terms:-

[41]

(a) The assessment of evidence may require account to be taken of the capacity of a party to produce relevant evidence. In Blatch v. Archer (1774) 1 Cowp. 63 at 64; 98 ER 969 at 970, Lord Mansfield, CJ. stated, "it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted" .

[42]

(b) In the case of the failure of a party bearing the evidentiary burden only, the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his or her favour may be more confidently drawn: Jones v. Dunkel (1959) 101 CLR 298 at 308, 312 and Payne v. Parker [1976] 1 NSWLR 191 at 201 per Glass JA (dissenting, but whose statement of principle has been recognised as correct). (c) In determining whether the principle in that respect can or should be applied, depends upon whether the conditions for its operation exist. These are:- (i) that the missing witness would be expected to be called by one party rather than the other; (ii) that his or her evidence would elucidate a particular matter; (iii) that his or her absence is unexplained: see Payne (supra) at 201.

[43]

(d) Two different types of result might follow from the failure to call a witness. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn: Manly Council v. Byrne [2004] NSWCA 123 per Campbell J with whom Beazley JA and Pearlman AJA agreed.

[44]

(e) Before a Jones v. Dunkel inference may be drawn there must first be available to be drawn, on the evidence which has been admitted, an inference against that party: State Bank of NSW v. Brown [2001] NSWCA 22; (2001) 38 ACSR 715 at [17] to [18] per Spigelman, CJ. 110 It is clear that the defendant had before trial copies of both statements of the witness Proud. In Exhibit 1, Mr. Proud stated that it was at about a third of the way down the big hill that the plaintiff commenced to overtake and in his statement, Exhibit K, that it was when he was about level with the double telegraph poles that he observed the plaintiff's car pulling out to overtake (ie., 202 metres from the point of impact). Mr. Proud also stated that there was a distance of between 200 to 300 metres between the plaintiff's and the defendant's cars when the defendant was overtaking the other southbound vehicle (commencing at the "keep left" sign). On these accounts, the defendant ought to have been able, if maintaining a proper lookout, to have seen the plaintiff's car at either of these distances as it pulled out to overtake Mr. Proud's vehicle. 111 Mr. Proud's observations in these respects stand significantly in contrast with the defendant's statement that, at first sight by him, the plaintiff's car was only between 50 to 100 metres in front of him. 112 The distance between the vehicles at the time they commenced their respective overtaking manoeuvres is, as stated earlier, a very critical fact. The only witnesses who could give evidence on that point were Mr. Proud and the defendant. Their accounts, as referred to above, however, raised the question that, if Mr. Proud was correct, why was it that the defendant only first noticed the presence of the plaintiff's vehicle 50 to 100 metres away? On the evidence, including the expert evidence, at a distance of 200 to 300 metres apart, the defendant had the opportunity of moving to the left lane as he said was, in fact, his usual practice. 113 The conditions for the drawing of a Jones v. Dunkel inference referred to in [109(c)] above are clearly satisfied in the circumstances of this case. That, of course, does not mean that the inference must be drawn. It does, however, enable the Court to more comfortably accept the evidence of Mr. Proud to which I have referred. Having considered his evidence in the context of the evidence in the case, I accept his observations as establishing that the defendant could have and should have first detected the plaintiff's vehicle more than the stated 50 to 100 metres ahead. It is not to be forgotten that the evidence establishes that he would have had a clear line of vision from the "keep left" sign of at least 400 metres ahead. 114 The fact that the defendant's statement found its way into evidence in the plaintiff's case does not, in my opinion preclude the operation of the Jones v. Dunkel principle. The important statement of the defendant, to which reference has been made (first sighting the plaintiff's vehicle at only 50 to 100 metres ahead), examined in light of Mr. Proud's statement, to which I have referred, was one that required an explanation by the defendant. The fact that he did not see the plaintiff at a greater distance is consistent with negligence on his part in not having seen the plaintiff's vehicle well before the 50 to 100 metre range. I do not, with respect, accept that the relative contemporaneity of the defendant's statement to police, which was raised in argument by senior counsel for the defendant, as assisting on this point. 115 In an accident case such as the present where one of two participants in an accident has no memory of events and there is an independent witness, the Jones v. Dunkel principle may operate in an important way in relation to the fact-finding by a court that is required to do justice between the parties in reconstructing and establishing the likely facts of an accident. On the other hand, the principle is not one lightly to be employed in making important findings of fact as if it were a trump card to be played in what may be characterised as something of a strategic contest. The defendant, one may infer, could have elucidated upon the fact as to why he only first saw the plaintiff's vehicle at a point at less than half the distance Mr. Proud stated separated the two vehicles when they commenced to overtake. On this issue, one would have expected to hear from him. 116 On an evaluation of the evidence, I am unable to accept the submission made on behalf of the defendant that the defendant's statement and Mr. Proud's evidence established that the plaintiff appeared in the centre of the "overtaking" lane when she was some 50 to 100 metres away from the defendant and that the defendant, at that point, was still in the process of overtaking the other southbound vehicle. 117 So far as the plaintiff's actions are concerned, whilst she was entitled to cross the segmented line and enter the "overtaking" lane for the purposes of completing an overtaking manoeuvre, just as the defendant was entitled to use that lane for a similar purpose, nonetheless in terms of the practical and harmonious operation of the roadway as it existed at the time, the liability issue cannot simply be left to be determined upon the basis that both north and southbound traffic had equal rights to the use of the overtaking lane. 118 The "overtaking" lane physically formed part of the southbound carriageway. In order for the plaintiff to overtake on the relevant stretch of roadway, she was required to cross her northbound lane into the southbound carriageway and by law she was permitted to do so. However, before doing so, it was, in my opinion, incumbent upon her to ensure, consistent with the relevant road rule, that there was no southbound traffic at all in the overtaking lane within at least 400 metres at the time that she commenced her overtaking manoeuvre. It is apparent, on the factual findings made, that the defendant's vehicle was in fact in the overtaking lane at the time the plaintiff commenced her manoeuvre and that, had she been looking sufficiently far ahead, she would have seen his vehicle in that location prior to her pulling out from behind Mr. Proud's vehicle and coming alongside it. In that respect, the plaintiff, through inadvertence, misjudged the situation and must be held to have been, in that respect, in breach of her duty of care. 119 On the basis that the defendant could and ought to have seen the plaintiff's vehicle before the point that he did but failed to do so is indicative of a breach of duty on his part. Had he done so, he should have and could have reacted to the presence of the plaintiff's vehicle in the overtaking lane by immediately entering the lane to his left, he having by that time already passed the other southbound vehicle. On the findings made in this respect, I am, accordingly, of the opinion that the defendant was in breach of his duty of care to the plaintiff in failing to detect the presence of her vehicle earlier than he did and to have acted as I have stated. 120 In the circumstances of the accident, the determination as to the appropriate division of responsibility is not a simple one. In making the required evaluation, I take into account, as earlier stated that the plaintiff, at the relevant point on the roadway, had an uninterrupted view ahead and ought not, as she did, to have undertaken an overtaking manoeuvre unless the overtaking lane was clear of any vehicle. Her legal right to use the overtaking lane must, in my opinion, have been subject to such a practical precaution. Fundamentally, it was the plaintiff's action which precipitated the circumstances that required the defendant to have acted urgently to have avoided her oncoming vehicle. Whilst it is true that the defendant also enjoyed an unobstructed view of the roadway ahead, no criticism has been made nor could have been made of his having undertaken the overtaking manoeuvre he engaged in in order to pass the other vehicle in the overtaking lane. The defendant's breach was, as stated, rather his failure to have detected the plaintiff's vehicle earlier and to have reacted quickly enough to have avoided a collision with her vehicle.

[45]

Apportionment of responsibility 121 In making the required determination on the question of apportionment, I have had regard to and sought to apply the principles stated by the High Court in Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492 at 493-494:- "The making of 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 (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Limited [1953] AC 663 at 682; Smith v. McIntyre [1958] Tas. SR 36 at 42 to 49 and Broadhurst v. Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstance 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." 122 The above principles have been consistently applied: see Joslyn v. Berryman (2003) 214 CLR 552 at [157] per Hayne, J.; Liftronic Pty. Limited v. Univer (2001) 75 ALJR 867 per Gleeson, CJ.; Wynbergen v. Hoyt's Corporation Pty. Limited (1997) 75 ALJR 65 at 68 per Hayne, J. and Evans v. Lindsay [2006] NSWCA 354 per Beazley, JA. at [81] to [82]. 123 In undertaking the relevant discretionary determination, a question of contributory negligence has been referred to as an evaluative exercise, in which matters of proportion, balance, emphasis and the weighing up of different considerations play a part: see Evans v. Lindsay (supra) at [83] per Beazley, JA. 124 The actions of the plaintiff, accordingly, precipitated and gave rise to the danger that resulted in the accident. The breach of duty as I have determined it by the defendant was a failure to maintain a high level of vigilance required of him and his consequent failure to respond adequately to the circumstances to which the plaintiff's conduct gave rise. 125 In the present matter, I have assessed the issue of culpability by reference to the extent to which the plaintiff's conduct departed from the relevant standard. In this respect, there was a significant departure by the plaintiff from the direction or prescription in Road Rule 140. That departure from the standard was capable of producing, and did, in my opinion, produce, the circumstances that were conducive to the collision with the defendant. 126 In terms of the causative significance of the plaintiff's breach when evaluated against the defendant's breach, it was, in my assessment, the more significant in terms of the "relative importance of the acts of the parties in causing the damage": Podrebersek (supra). 127 In these circumstances, I am of the opinion that the appropriate finding in terms of the respective responsibilities of the plaintiff and the defendant is that the plaintiff was 60% responsible and the defendant 40% responsible for the accident. 128 As this judgment has determined liability and not damages, I grant leave to both parties to apply on 10 days' notice for the proceedings to be re-listed for further directions in relation to the hearing on damages and to apply for further hearing dates to be allocated. **********

[46]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

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Judgment (46 paragraphs)

Parties

Cases Cited (9)

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