District Court New South Wales Medium Neutral Citation: PL Tripodi Pty Limited v Phillips [2024] NSWDC 31 Hearing dates: 28 November 2023 Date of orders: 19 February 2024 Decision date: 19 February 2024 Jurisdiction: Civil Before: Andronos SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $117,739.38 inclusive of interest. (2) Order the defendant to pay the costs of the plaintiff on the ordinary basis as agreed or assessed. (3) Grant liberty to the parties to make an application to vary order (2) herein by email to my associate within seven days setting out the costs order they seek, any evidence in support, and submissions of no more than three pages in length. Catchwords: NEGLIGENCE — Breach – Driver and other users of the road – Duty to following vehicles - Truck vs motor vehicle – Failure to keep a proper lookout NEGLIGENCE — Defences — Contributory negligence – Proportionate liability for apportionable claims Legislation Cited: Civil Liability Act 2002 (NSW), s 3B, s 5B, s 5C, s 5D, s 35 Civil Procedure Act 2005 (NSW), s 100 Cases Cited: Steve Calcagno v Norma Maree Dent [2015] NSWDC 308 Category: Principal judgment Parties: PL Tripodi Pty Limited (plaintiff) Barry Phillips (defendant) Representation: Counsel: Mr J Raftery (plaintiff) Mr G Carolan (defendant) Solicitors: Kennedys Lawyers (plaintiff) Ligeti Partners (defendant) File Number(s): 2022/00166559 Publication restriction: Nil Judgment Introduction 1. Shortly before 11:00am on 16 October 2020, Max Brady was driving the plaintiff's Western Star three-axle 4800 tipper truck, which was attached by a 3-metre drawbar to a Sloanebuilt five-axle dog trailer ("the Truck"), northwards along the Hume Highway ("the Highway") at Sutton Forest, New South Wales. The truck and trailer were laden with crusher dust distributed about evenly between the truck and the trailer. Mr Brady was travelling in Lane 1, the left-most of two northbound lanes. 2. At about the same time, the defendant, Barry Phillips, was driving a Ford Ecosport SUV from Bundanoon to Sydney. Mr Phillips made a right-hand turn from Golden Vale Road, Sutton Forest, northbound onto the Hume Highway. He did so at about the time Mr Brady crested a rise about 280 metres south of the Hume Highway-Golden Vale Road intersection, although the precise timing and location of the vehicles is in dispute. 3. The two vehicles did not collide and no one was injured. The plaintiff, PL Tripodi Pty Limited, alleges that Mr Phillips made a right-hand turn into Lane 2 of the Highway and then merged into Lane 1, Mr Brady's lane, when it was unsafe to do so. It says that Mr Phillips drove his vehicle into the path of Mr Brady's vehicle without paying due regard to the presence of Mr Brady's Truck, and accelerated too slowly coming out of the turn, forcing Mr Brady to take evasive action to avoid an imminent collision. As a result of that action, the plaintiff says Mr Brady was forced to drive onto the road shoulder, resulting in the trailer hitting a guardrail, tipping over, suffering damage and losing its load of crusher dust across the Highway. 4. Mr Phillips denies that he turned onto the Highway when it was unsafe, or that his driving was in any way responsible for the plaintiff's loss. He says that he checked for oncoming vehicles when making his turn, that he turned directly into Lane 1, having traversed Lane 2, and that he accelerated appropriately out of the turn. He says the sole cause of the incident was Mr Brady's failure to notice Mr Phillips' car on the Highway ahead of him, due to his own inattention. 5. Damages have been agreed at $142,279.94. The only issues for determination are the questions of primary liability, on the part of Mr Phillips, and contributory negligence or concurrent wrongdoing, on the part of Mr Brady. 6. The plaintiff relied on a statutory declaration by Mr Brady and an expert report prepared by Mark Byrnes, a senior forensic consultant. The defendant relied on affidavits from himself, his wife, Caren Phillips, who was a passenger in the SUV at the time, and Angus Winsley, a motorist also travelling north along the Hume Highway at the time of the incident. Each of Mr Brady, Mr Phillips, Ms Phillips and Mr Winsley were cross-examined, and submissions were made as to the credit of each of them. The scene and conditions 1. The Hume Highway at Sutton Forest, approximately 130 kilometres from Sydney in the Southern Highlands of New South Wales, is a north-south dual carriage way which comprises two lanes travelling in each direction. It is sealed with bituminous material and is separated by a wide forested median strip. As at 16 October 2020, it was in fair condition notwithstanding that the surface aggregate was smooth and worn from use. 2. The speed limit at that stretch of the Highway was 110 km/h. 3. At Sutton Forest, the Highway intersects with Golden Vale Road, a two-lane local road that leads eastwards to the Illawarra Highway and the towns of Sutton Forest and Moss Vale. The Golden Vale intersection was a near 90 degree intersection where the Highway was the priority leg. The intersection was governed by white painted stop lines and stop signs at the median for west bound vehicles, and there were slip lanes along the Highway accommodating vehicles turning from the Highway onto Golden Vale Road and from Golden Vale Road onto the Highway. 4. Although there was some dispute, I accept that at the time of the incident, the weather conditions were overcast and misty, and it had been raining. The police report of the incident recorded that the surface of the road was wet, although the photographic evidence shows that it was not significantly so. 5. Approaching the Golden Vale Road intersection along the Highway from the south, there is a rise which reaches a crest about 280 metres south of the intersection followed by a slight fall to the north. The sight distance afforded to stationary drivers turning northwards from Golden Vale Road onto the Hume Highway at the stop line within the intersection was therefore about 280 metres. 6. At about 185 metres to the north of the Golden Vale intersection, a safety barrier commences along the western border of the Highway, alongside Lane 1. The plaintiff's account: Mr Brady's evidence 1. The plaintiff relied on the account of its employed driver, Mr Brady. Mr Brady was a professional truck driver, having held a multi combination heavy truck licence since 2006, and a heavy combination licence before that. He had worked for the plaintiff for 13 years, at the time of the incident, but no longer works for it. 2. At the time of the incident, Mr Brady was working 12 to 13-hour shifts, taking a 15 to 20-minute break every 2 to 3 hours. His working day typically started at 2:30 to 3:30am and finished at about 4:00pm. He had been driving the same route between Marulan and Narellan about three times per day for at least three years prior to the incident. He estimated that the trip in each direction usually took him about 1 hour 45 minutes. He was familiar with the stretch of the Highway in question. 3. On 16 October 2020 Mr Brady commenced work at 3:30am. At the time of the incident (about 11:00 am), he was not tired, unwell or impaired for any other reason. 4. The Truck was fitted with a speed limiter and was travelling at 100 km/h with its headlights on. It was travelling wholly within Lane 1, the left-most lane. There was little traffic. 5. In his statutory declaration, Mr Brady stated that as the Truck crested the rise, he saw Mr Phillips' SUV as it began to turn out of the centre median of the intersection into Lane 2. He says he saw the SUV at the stop sign in the median area. In cross-examination, Mr Brady said that the SUV did not move into the northbound lanes of the Highway until he was about 120 or 130 metres south of the intersection. 6. Mr Brady's evidence is criticised as inconsistent given that it appears to indicate, on the one hand, that the SUV was already moving into the northbound lanes when he crested the rise and, on the other, that it did not start to move until he was more than halfway between the crest and the intersection. In light of that inconsistency, Mr Carolan, for the defendant, submits that the earlier account ought be preferred. 7. Mr Brady explained that the discrepancy in his accounts was because they were addressed to different observations. He says he first saw the SUV at the median, when he was at the crest, and he first saw the SUV travelling north, he estimates, one to two seconds later. 8. I accept Mr Brady's explanation for the discrepancy, and that the SUV did not start to move from the stop sign at the median of the Golden Vale intersection until the Truck had passed the crest. I accept that Mr Brady saw the SUV stationary at the stop sign when the Truck crested the rise. 9. I do not accept, however, that the Truck was 120 or 130 metres south of the Golden Vale intersection when the SUV commenced its northward journey. Given that the Truck was travelling at 100 km/h (or 27.8 m/s), for it to travel 150 or 160 metres from the crest to that point would have taken over 5 seconds. The plaintiff's case is that Mr Phillips did not keep a proper lookout to his left for oncoming highway traffic before turning northwards onto the Highway. It is not plausible that Mr Phillips would have sat at the intersection for over five seconds before moving, and still not have noticed the oncoming Truck. It is far more likely that the SUV commenced moving between one and two seconds after the Truck had passed the crest. As the Truck was travelling at 27.8 m/s, this would mean the truck was between 30 and 55 metres from the crest, or 225 to 250 metres from the Golden Vale intersection when the SUV commenced moving. 10. Mr Brady perceived the SUV as travelling at about 20 to 30 km/h and accelerating slowly out of the turn in a shallow arc consistent with it entering Lane 2. From his elevated position in the cab of the Truck, Mr Brady believes he saw Mr Phillips and his wife in what he described as a "heavy conversation", facing each other with at least one of them waving and pointing at the other. Both Mr and Ms Phillips deny that there was any such conversation that could distract Mr Phillips from paying attention to the traffic conditions. I accept their account and reject the allegation of any such conversation distracting Mr Phillips. 11. The SUV turned into, what Mr Brady described in his declaration as, Lane 1, but it appears he meant Lane 2, because his evidence was that it subsequently merged into the lane in which he was travelling, which was actually Lane 1. This is also consistent with the remainder of his evidence. In his evidence in chief, Mr Brady says that this occurred in less than 40 metres, which took the SUV about two to three seconds to traverse. 12. The effect of Mr Brady's evidence is that he says that the SUV was wholly in Lane 2, and aligned with it before changing to Lane 1, without indicating. Once he realised what was happening, Mr Brady says he immediately recognised that it would be impossible for him to either change into Lane 2 or slow down sufficiently to avoid a collision. The Truck was still travelling at 100 km/h. He was about 70 metres behind the SUV when it changed into Lane 1. 13. Mr Brady says that when he noticed the SUV in Lane 1, he commenced an emergency braking procedure, essentially standing on the brake pedal with both hands firmly on the steering wheel to keep the vehicle under control. He did not flash his lights or sound his horn, he says, because by this stage he did not have sufficient time to do so. 14. A critical question will be how long after the SUV left Lane 2 and entered Lane 1 it took Mr Brady to commence this braking procedure. His evidence was that it was more or less straight away. This account can be tested against the evidence of Mr Winsley and the objective evidence as observed by the plaintiff's expert, Mr Byrnes. These are discussed below. 15. Once Mr Brady commenced the emergency braking procedure, the Truck veered left, onto the shoulder of the Highway. Mr Brady thought, correctly, that at this point this was the safest option: he did not know how far away any following vehicle was, so could not have safely merged into Lane 2, and the SUV was still in the process of merging from Lane 2, as he saw it, in any event. 16. The Truck continued to the left and the left wheels of the trailer ran along a gutter at the side of the road. The Truck continued to gain on the SUV and for a time they travelled side by side, the SUV in Lane 1 and the Truck on the shoulder. The Truck was decelerating from 100 km/h while the SUV was still accelerating from a standing start. Mr Brady and Ms Phillips made eye contact, Ms Phillips shouted to her husband and Mr Phillips swung into Lane 2, thereby avoiding a collision. 17. Mr Brady brought the Truck back into Lane 1 but the trailer hit a guard rail on the left shoulder, which was about 185 metres from the centre of the Golden Vale intersection. The trailer then swayed from side to side until it tipped over to its left, and the truck and trailer came to a rest about 240 metres from the intersection. 18. When he and Mr Phillips alighted from their respective vehicles, Mr Brady said to Mr Phillips, "You shouldn't pull out in front of me like that". Both Mr and Ms Phillips deny he said this, but Mr Winsley, an independent witness for the defendant, corroborates Mr Brady's account. 19. A police report dated 23 October 2020 recorded that as the SUV entered Lane 1, it failed to accelerate at a required speed for oncoming traffic, causing the Truck to brake harshly. It foreshadowed that action would be taken against Mr Phillips, although this did not occur. 20. In his statement to the plaintiff's insurer, Mr Brady described the SUV as having "pulled out in front of me from Golden Vale Road", leaving him no room to slow and making "no attempt to accelerate ahead". He described the defendant's actions as having turned from Golden Vale Road into Lane 2 and then changing lanes into Lane 1 without indicating. The defendant's account: Mr Phillips, Ms Phillips and Mr Winsley 1. In his affidavit, Mr Phillips deposed that he was driving the SUV from Bundanoon to Sydney and the weather was clear. Prior to the incident, he drove across the southbound lanes of the Highway and stopped at the stop sign at the intersection of Golden Vale Road and the northbound lanes of the Highway. He looked left, right and left again. He does not recall seeing any vehicles between his SUV and the top of the rise, some 280 metres away. 2. Mr Phillips then accelerated into the Highway. On his account, he traversed Lane 2 whilst turning into Lane 1 in a single arc. He says he accelerated to about 80 km/h. He was unable to estimate how long he was in Lane 2, but says he was only in that lane while traversing to enter Lane 1. He denied being in Lane 2 for 40 or 50 metres as alleged by the plaintiff. Once on the Highway, Mr Phillips did not check his rear view mirror, side mirrors or otherwise look behind him. 3. It was Ms Phillips who first noticed the Truck when it was beside the SUV, driving along the left shoulder of the Highway. According to Mr Phillips, this occurred about 200 metres from the intersection, although this estimate cannot be correct because the barrier that the Truck's trailer eventually hit was only 185 metres from the centre of the intersection. Ms Phillips called out, drawing Mr Phillips' attention to the Truck. Mr Phillips immediately swerved to the right, into Lane 2. He heard a crashing sound and then brought his SUV to a stop on the right shoulder of the Highway. 4. Ms Phillips' evidence corroborates that of Mr Phillips. She says that she also looked to the left, when the SUV was at the stop line at the intersection of Golden Vale Road and the Hume Highway, and did not see the Truck or any other vehicle approaching from the south. As she was looking to the left, she did not see whether Mr Phillips, seated to her right, did so. She agrees with Mr Brady that she first saw him and the Truck when the two vehicles were side by side. 5. Neither Mr nor Ms Phillips were required to make a statement to the police at the time. 6. Mr Winsley, the independent driver called by the defendant, was driving from Canberra to Morisset, near Newcastle. He recalls the weather was partly cloudy but not raining. He was following the Truck, also driving in Lane 1. 7. From his position behind the Truck, Mr Winsley noticed the SUV travelling northwards in Lane 1. He noticed that it was travelling slower than either the Truck or his own car. He merged into Lane 2 in order to pass the SUV. He thought the Truck would also pass the SUV by merging into Lane 2 and he says that, in his opinion, he left the Truck sufficient room for it to do so. He has not, however, had any experience in driving heavy combination vehicles, such as the Truck, which would not necessarily be able to change lanes in as short a distance as a car. The opinion expressed by him does not carry any weight. 8. However, Mr Winsley makes two significant observations. 9. First, Mr Winsley provides independent corroboration for Mr Brady's evidence that the SUV was accelerating unduly slowly coming out of the Golden Vale intersection. Even from his vantage point behind the Truck, he noticed it. 10. Secondly, Mr Winsley did not see the SUV turn onto the Highway, so the SUV was already wholly within Lane 1 when he crested the rise. 11. Mr Winsley says he was travelling at 110 km/h, and believes that the Truck was also travelling at that speed. As the Truck was speed limited to 100 km/h, it is probable that his vehicle was travelling faster than it, and he was gaining on the Truck as they came over the crest and approached the Golden Vale Road intersection. 12. Mr Winsley had some difficulty in estimating distances and gave several competing estimates, variously that that he was travelling 6 to 10 metres behind the Truck, 15 to 20 metres behind it and 60 metres behind it, when he first saw the SUV. I have very little confidence in Mr Winsley's ability to estimate, or to recall his estimation of, distances. This is not to be critical – such estimates are notoriously difficult to make, and many witnesses struggle in this respect. Nevertheless, given the speed at which the Truck and his own vehicle were travelling, Mr Winsley's estimates are all likely to understate the distances. 13. If Mr Winsley left what he believed to be a sufficient distance for the Truck to change lanes in front of him, when that Truck was moving 10 km/h slower than his own car, it is unlikely that this was only 60 metres (which equates to the vehicles being about 2 seconds apart), with Mr Winsley, in the following vehicle, gaining on the Truck. In my view, it is likely that the distance between them was greater, perhaps substantially so. 14. Having observed that the SUV was travelling significantly slower than the speed at which he and the Truck were both travelling, Mr Winsley saw the Truck closing in on the SUV until the Truck suddenly swerved leftwards onto the shoulder of the Highway, narrowly missing the rear of the SUV. His account of the Truck travelling along the left shoulder, the collision with the guardrail, and the trailer flipping over onto the road largely accords with Mr Brady's, which I accept. 15. After the Truck came to a stop, Mr Winsley also stopped his vehicle and offered his contact details to Mr Phillips. He heard Mr Brady accuse Mr Phillips of pulling out in front of him, but says that Mr Phillips had not done so. The expert evidence of Mr Byrnes 1. Mark Byrnes, a forensic consultant specialising, amongst other things, in crash reconstruction, prepared a report which was relied upon by the plaintiff. In his report, Mr Byrnes sets out certain calculations and the results of his inspection and analysis of the site on 8 October 2021, and photographs taken while the Truck was still in its at rest position on the day of the incident. He noted that the physical evidence did not refute either party's version of events. 2. The calculations of speed, distance and time in Mr Byrnes's report assume that the plaintiff's factual allegation, that the SUV was wholly aligned in Lane 2 before changing lanes into Lane 1, is correct. They also assume greater precision as to distances and timing than can be established on the evidence. As will be clear below, I have not accepted the factual premise of the report. This has diminished the report's utility. 3. Nevertheless, I accept Mr Byrnes's observations and, where the evidence supports them, his calculations. In particular, I accept that Mr Brady commenced braking about 60 to 65 metres north of the centre of the Golden Vale intersection, and that the trailer left the travel way about 130 to 135 metres north of the intersection and hit the guardrail, which was 185 metres from the centre of the intersection. Legal principles 1. The relevant principles for the determination of liability are not controversial. Pursuant to s 3B(2)(a) of the Civil Liability Act 2002 (NSW) (the Act), the question of whether a driver of a motor vehicle breached his, her or their duty of care and whether loss was caused thereby is to be determined in accordance with ss 5B, 5C and 5D of the Act. 2. The parties referred me to the decision of Mahony SC DCJ in Steve Calcagno v Norma Maree Dent [2015] NSWDC 308, in which his Honour surveyed a number of authorities relevant to the duty owed by a driver to other users of the roadway, particularly following vehicles. I have extracted relevant passages from his Honour's judgment below and also highlighted particular passages: "[81] In Manley v Alexander (2005) 80 ALJR 413, the plurality of the High Court stated, in relation to a driver's obligation to others using the roadway, in that case the respondent, who was intoxicated and lying on the roadway: '11 Driving requires reasonable attention to all that is happening on and near the roadway but that present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. 12 It may readily be accepted that the possibility that someone would be found lying on a roadway, like Middleton Beach Road at 4am, is properly to be described at remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.' [82] In Marien v Gardiner; Marien v HJ Heinz Company Australia Ltd [2013] NSWCA 396, another pedestrian case, Meagher JA (with whom Macfarlan and Emmett JJA agreed), further explained the duty of care as follows: '33 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. 34 The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). 35 Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". 36 The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. 37 Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.' …. [84] As to the content of the duty of care of a driver making a right hand turn in circumstances where there was an overtaking vehicle coming from behind him in the same direction, the plaintiff relied on the High Court of Australia's judgment in Cocks and Anor v Sheppard (1998) 25 ALR 325. At p 331, Gibbs J (as he then was), Barwick CJ, Stephen and Aickin JJ agreeing, said that the driver of the turning vehicle was guilty of a want of reasonable care for his own safety; … 'in making his turn without reasonable steps to ascertain whether there was any vehicle behind him which was likely to overtake him. … The respondent was not entitled to ignore the possibility that some other fast moving vehicle had come on the scene, because no driver can act on the assumption that there is no other vehicle on the highway without looking to see whether the assumption is correct.' The court thus found that the driver of the turning vehicle, by not first looking to see if it was safe to do so, was guilty of contributory negligence (he being the injured party). [85] In Ilsley v Boots (1970) 2 NSWLR 551, the defendant gave a signal indicating his intention to turn right 100 feet prior to reaching a gateway in which he intended to turn. Prior to turning he veered his vehicle to the left of the road and then commenced to turn his vehicle into the gateway. It was then he became aware from the screech of tyres from a vehicle overtaking his vehicle that a collision was inevitable. The trial judge concluded that the defendant was not negligent, however, the Court of Appeal held that the defendant breached his duty of care by not ascertaining that there was no car approaching from behind him at the time when he commenced his turn, or that no car was approaching in such proximity that he should take that proximity into account. The defendant did not see the car in which the plaintiff was travelling, and he knew nothing of the state of traffic on the road behind him when he commenced the turn. This was a failure to make a proper observation of the roadway, and a breach of the driver's duty of care that was still operating and operative at the time when the collision occurred. Jacobs JA (with whom Mason P and Holmes JA agreed), went on to hold that if the defendant had looked and seen the approaching vehicle, that vehicle was so close that some delaying action was required before the defendant commenced to turn. [86] Finally, in Richards v Picco [2000] NSWCA 35, Meagher JA (dissenting), referred to Cocks v Sheppard and stated at [18]: 'There is no doubt duty exists to take reasonable care to prevent a foreseeable injury to a vehicle travelling behind one.'" 1. The particular context of these passages related to vehicles turning off the roadway in question, as opposed to turning into it as is the case here. Nevertheless, the proposition remains that drivers owe duties to following vehicles, including the duty not to act on the assumption that there is no other vehicle on the highway without looking to see whether the assumption is correct. 2. Finally, Mr Phillips says that this is an apportionable claim within s 35 of the Act on the basis that Mr Brady is a concurrent wrongdoer and any damages due by Mr Phillips to the plaintiff is limited to an amount reflecting the proportion of the damage that the Court considers just having regard to Mr Phillips' responsibility for the damage. Disposition 1. On the basis of the evidence before me, I make the following findings: 1. By the time the SUV commenced its turn out of the median onto the Highway, the Truck had already crested the rise to the south and was at least part way between the crest and the Golden Vale Road intersection. In my view, when the SUV left the Golden Vale intersection, the Truck was between 225 and 250 metres to the south. I do not accept that it was more than halfway between the crest and the Golden Vale Road intersection. 2. The Truck was travelling at a constant speed of 100 km/h until Mr Brady executed an emergency braking manoeuvre. 3. When making the right-hand turn, Mr Phillips looked to his left, but not with sufficient attention to notice the Truck that had already crested the rise. Ms Phillips may also have looked left, but she was not the driver and did not see the Truck. Once on the Highway heading north, Mr Phillips did not check his rear view mirror, side mirrors or otherwise check to see what traffic there was behind him. Had he been keeping a proper lookout, he would have seen the Truck before he commenced the right-hand turn, or would at least have noticed it once he was travelling north along the Highway. Mr Phillips remained unaware of the presence of the Truck until Ms Phillips alerted him to the Truck's presence alongside the SUV on the shoulder of the Highway. 4. The SUV accelerated unduly slowly, although the rate of acceleration was not established. The evidence also does not establish how far the SUV was in front of the Truck when Mr Brady commenced the braking manoeuvre, other than it was by then too close for Mr Brady to do anything else to avoid a collision. The rate of acceleration was so slow, however, that Mr Winsley noticed it even after both the Truck and his own vehicle had crested the rise. On Mr Phillips' case, the SUV reached a maximum speed of 80 km/h before the incident. On the basis of the observations of Mr Winsley and Mr Brady, and the proximity of the area in contest to the Golden Vale Road intersection, I am not satisfied that it did so. 5. The SUV turned from the median into northbound Lane 1 of the Highway in a single arc. I do not accept the plaintiff's case that it aligned with the Highway in Lane 2 and then changed lanes into Lane 1. Mr Brady mistook the single arc as being two movements – a movement into Lane 2 and then a second movement from Lane 2 to Lane 1. This was primarily because Mr Phillips turned slowly and over a long arc, such that the SUV was in Lane 2 longer than might ordinarily be expected if the driver always intended to turn into Lane 1. Mr Phillips did not use his left indicator to signify a change of lane. So far as he was concerned, he was not changing lanes because he was turning into Lane 1 in a single, if leisurely, movement. Mr Brady's assumption was also influenced by his experience of other drivers turning out of Golden Vale Road, who turned more quickly and more directly into Lane 1, or remained in Lane 2 until northbound traffic had passed. 6. Mr Brady did not immediately react to the SUV's presence because he wrongly assumed that Mr Phillips would remain in Lane 2 and that Mr Phillips had seen the Truck. It was reasonable for Mr Brady initially to assume that Mr Phillips had seen the Truck. If Mr Phillips had kept a proper lookout, he would have seen it. Had Mr Brady kept a proper lookout, however, he would have seen that Mr Phillips was entering Lane 1, albeit slowly and gradually. He would have seen it earlier than he did. 7. When Mr Brady realised that Mr Phillips had not seen the Truck, he took the only evasive action that, by that stage, remained available to him. That action was, fortunately, successful in avoiding what could have been catastrophic injury (or worse) to the occupants of the two vehicles. Damage was, nevertheless, suffered by the plaintiff. 8. Mr Brady was, in the context of the incident, too slow to realise that Mr Phillips had not seen him and that the SUV was entering Lane 1. Indeed, it was wholly within the lane before he reacted. His slow response was conditioned by what he assumed Mr Phillips would have done if he had seen the Truck and how he construed the slow and wide arc with which Mr Phillips was entering Lane 1. But it also demonstrated a failure to keep a proper lookout. His reaction was significantly slower than that of Mr Winsley, who completed a change of lanes to deal with the slow-moving SUV in Lane 1, well before Mr Brady responded at all. 1. Taking into account all of the evidence, I consider that primary responsibility for the incident lies with Mr Phillips. Due to what I have found to be his failure to keep a proper lookout when turning from a minor road onto a major Highway, he did not notice the Truck and allowed the SUV, effectively, to drift in front of a heavy vehicle travelling at 100 km/h. By not checking behind him by use of his rear vision or side mirrors, he remained unaware of the magnitude of the risk he had created. By not accelerating quickly or to a speed commensurate with that which could be expected of traffic on that stretch of the Highway while moving into Lane 1 in a leisurely arc, he exacerbated the risk of a serious incident, which risk eventuated. Had Mr Phillips kept a proper lookout, he would have waited for the Truck to pass, remained in Lane 2, or accelerated to a speed that took account of other traffic on the Highway. Any one of these actions would have avoided the incident entirely. 2. That is not to say that Mr Brady was blameless. He assumed that the SUV would stay in Lane 2, partly due to prior experience involving other vehicles, without paying close enough attention to what the SUV in front of him was actually doing. He was too slow to react, particularly when Mr Winsley, who was travelling behind him, reacted far more quickly. Had he reacted earlier, he could have braked earlier and thereby reduced the Truck's speed and/or sounded the Truck's horn to warn Mr Phillips of his presence. I consider that there was sufficient distance between the vehicles, when the SUV started to move into Lane 1, for him to react and take these steps for such action to have been likely to avoid the damage suffered. 3. The conduct of each driver, therefore, fell short of the standard of care expected of users of the Highway and contributed to the incident and loss sustained by the plaintiff as a result. Apportionable claim under Civil Liability Act 2002 1. On the basis of the above findings, my assessment of the comparative contributions of each driver to the incident is that 70% should be attributed to the conduct of Mr Phillips and 30% to the conduct of Mr Brady. Given that damages are agreed at $142,279.94, the plaintiff's damages will be reduced by $42,683.98, being 30% of that sum. The damages for which the defendant is liable, therefore, amount to $99,595.96. Interest 1. The plaintiff is also entitled to interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW), commencing from 16 October 2020. Calculated to the date of judgment, interest has accrued in the sum of $18,143.42. Costs 1. Liability was contested and the plaintiff has succeeded. Accordingly, it would ordinarily be entitled to its costs assessed on the ordinary basis, and I will make an order to that effect. I will, however, make provision for either party to seek to vary that order. Orders 1. The orders of the Court will be: 1. Judgment for the plaintiff against the defendant in the sum of $117,739.38 inclusive of interest. 2. Order the defendant to pay the costs of the plaintiff on the ordinary basis as agreed or assessed. 3. Grant liberty to the parties to make an application to vary order (2) herein by email to my associate within seven days setting out the costs order they seek, any evidence in support, and submissions of no more than three pages in length. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2024