New South Wales Court of Appeal CITATION : New South Wales Police Service v Campton [2002] NSWCA 282 FILE NUMBER(S) : CA CA 41072/01 HEARING DATE(S) : 23 August 2002 JUDGMENT DATE : 23 August 2002 PARTIES : New South Wales Police Service - Appellant Dale Francis Campton - Respondent JUDGMENT OF : Beazley JA at 21; Giles JA at 1; Foster AJA at 22 LOWER COURT JURISDICTION : District Court LOWER COURT DC 784/00 FILE NUMBER(S) : LOWER COURT Coleman DCJ JUDICIAL OFFICER : COUNSEL : M J Neil QC & G J Bellew - Appellant G R Petty SC & P J Nolan - Respondent SOLICITORS : Blake Dawson Waldron - Appellant James McNeil, Warner's Bay - Respondent CATCHWORDS : Negligence - motor accident - motorbike indicating right turn - police car attending emergency - passing on right - police car negligent in not seeing indication of turn - motorbike negligent in misjudging approach of police car - apportionment equal - no question of principle. ND Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867; CASES CITED: Podrebersek v Australian Iron & steel Pty Ltd (1985) 59 ALJR 429; Sibley v Kais (1967) 118 CLR 424. DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41072/01 DC 784/00 BEAZLEY JA GILES JA FOSTER AJA Friday 23 August 2002 NEW SOUTH WALES POLICE SERVICE v CAMPTON Judgment 1 GILES JA: The respondent was injured in a collision between his motorbike and the appellant's car. The trial judge found that the driver of the appellant's car was negligent and the respondent was contributorily negligent, and assessed their responsibilities as equal. The respondent was awarded damages of $197,563.51. The appellant appealed as to liability. There was no appeal as to quantum. 2 The respondent was riding his motorbike east along Lambton Road. He stopped at the traffic lights at a major intersection. When the lights turned green he proceeded along Lambton Road, intending to make a right turn where a break in the median strip permitted a turn into Cameron Street. In that vicinity Lambton Road had a marked parking lane, then two marked lanes for traffic travelling east, and then a right turn lane. What became the right turn lane was a general traffic lane from at least some point after the traffic lights, but for about fifty to eighty metres before the break in the median strip adjacent to Cameron Street was marked with hatching to cause traffic to move to the left. It was then marked with right turning arrows for the approximately fifty metres before the before the break in the median strip. Thereafter it continued apparently as a general traffic lane. 3 The respondent was riding in the outer of the lanes for traffic travelling east. There was moderate traffic and the road was fairly congested. He was following a car and was followed by another car or cars. Cars were travelling in the inner of the two lanes for traffic travelling east, that is, in the lane on the respondent's left. It was daylight and the weather was fine. The motorbike was travelling at about fifty-five kilometres per hour. 4 The trial judge found that as the respondent approached the Cameron Street turn he looked over his right shoulder and activated the right hand blinker on his motorbike. The respondent heard the faint sound of a siren, and again looked over his right shoulder. He saw the flashing lights of the appellant's car, which was then passing through the traffic lights in the same lane as that in which the respondent was travelling. The siren became louder. Although he appreciated that the lights and siren were those of an emergency vehicle, the respondent thought that he would be able to make his right turn before the emergency vehicle arrived. He moved into the right turn lane marked by the arrows. When he was approximately ten to fifteen metres along the right turn area of the lane his motorbike and the appellant's car collided. 5 The officers in the appellant's car, which was a police vehicle, were attending to an emergency. They had activated its lights and siren. The trial judge found that the car was travelling at a speed of at least seventy kilometres per hour. The car moved into the right turn lane because other traffic impeded progress in the lanes for traffic travelling east. The driver of the appellant's car could not be located. The other officer in the car did not see the blinker on the motorbike flashing, and it seems first became aware of the motorbike when there was the collision. The trial judge found that when the appellant's car moved into the right turn lane the respondent "was travelling several vehicles in front in the number two travelling lane with his blinker flashing". 6 The respondent's motorbike suffered damages to components on its right hand side, including the right front of its front mudguard. The appellant's car suffered damage to the left side door mirror and front and rear doors, with some repair also to the left rear quarter panel. It is clear enough that the collision was in the nature of a side-swipe. 7 The passenger officer in the appellant's car said that "the motorbike came inside our lane and collided with the rear door" (T73). One eyewitness said that the movement of the motorbike into the right turn lane and the collision were "almost instantaneous" (McIntosh T64). Another said that he saw the car "collect a motorbike" and that the motorbike veered to turn to the right and "the police car clipped it on its way through" (Meredith T72). Another said that as the motorbike was merging into the right turn lane the police car "came through and...hit it in the side" (Cooper T79). Another said that the motorbike was veering into the right turn lane to make the turn and the police car "proceeded straight ahead and veered into the bike, straight into him as he was making - as the bike was turning" (Knight T82-3). 8 The respondent was obliged under Regulation 80 of the Motor Traffic Regulations to give way to an emergency vehicle. The trial judge noted that it was nonetheless common ground that the driver of an emergency vehicle is required to exercise reasonable care whilst driving that vehicle in response to an emergency situation. As was said of the former give way to the right rule in Sibley v Kais (1967) 118 CLR 424 at 427 - "These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case." 9 The trial judge held that the driver of the appellant's car was negligent in failing to keep a proper lookout and that the collision was causally related to that failure. Although it was not expressly stated, it is plain that his Honour meant that the driver failed to take note of the flashing blinker indicating that the respondent would or might move into the right turn lane. His Honour specifically found - "Although there were other vehicles behind the plaintiff in the same lane as he was travelling between him and the emergency vehicle I am satisfied that the activated blinker on the plaintiff's motorcycle was visible to the driver of the police vehicle as it travelled along in the right turning lane and that there was time for the driver of the police vehicle to slow down and keep back from the motorcycle until he was satisfied the rider was aware of his presence and direction of travel." 10 The trial judge held that the respondent was in error in his judgment as to the movements of the appellant's car, and that he was contributorily negligent in that he should have checked again immediately before he began to move into the right turn lane and that his failure causally contributed to the collision. 11 The appellant submitted that the driver of its car should not have been found to have been negligent. The essence of its submission was that, from the damage to the motorbike and the car, it should be concluded that the respondent turned into the right turn lane immediately in front of the car or into the side of the car in circumstances where the driver of the car could take no evasive action. It was submitted that the police vehicle took the only lane available to it to attend to the emergency when the two lanes for traffic travelling east were blocked, that is, the right turn lane, and that there was no negligence in its moving into that lane. Once in that lane, it was submitted, the driver of the appellant's car could not have anticipated that the respondent would have wished to turn as he did even, if the driver had seen the blinker on the motorbike. It was said that the care required of the driver of the appellant's car did not extend to guarding against a turn by the respondent in the situation then obtaining, and that he was entitled to assume, even if he had seen the blinker operating, that the respondent would not in fact turn into the right turn lane. 12 I do not think that this can be accepted. As I have said, clearly enough the collision was in the nature of a side-swipe. Had there been no more than that the respondent moved without warning into the right turn lane then occupied or about to be occupied by the appellant's car, and in effect turned into the side of the car, there might have been something in it. But the negligence found was that the driver of the appellant's car failed to keep a proper lookout; that he failed to see the right turn blinker on the motorbike indicating a move into the right turn lane, and so failed to hold back until he was satisfied that the respondent was aware that the appellant's car was overtaking in the right turn lane. 13 I do not accept that the driver of the appellant's car was entitled, even in the emergency situation then obtaining, to assume that the respondent would not do what the blinker was indicating. The appellant's car should not have been passing through at speed when the respondent turned into the right turn lane so that the motorbike and the car came together, whether that be described as the motorbike turning into the car or, as the eyewitnesses generally saw it, the car hitting the motorbike. 14 It is of course true that the respondent was obliged to give way an emergency vehicle. The two lanes for traffic travelling east were occupied, and either the respondent could not or there was no point in him moving to the left hand side of Lambton Road in order to allow passage to the appellant's car. The use of the right turn lane by the emergency vehicle was something which could have been anticipated, but any failure of the respondent to move to the left had nothing to do with the collision. 15 What the respondent did wrong was move into the turning lane when, having misjudged the situation, he thought that he could turn right out of the path of the emergency vehicle before it arrived, and was doing so without again looking over his right shoulder to see that it was safe to do so. This did not detract from the fault of the driver of the appellant's car in failing to see the respondent's indication of what he was going to do and guard against his doing it. The statement of one of the eyewitnesses included that, seeing the appellant's car and the motorbike with its right hand indicator on, he thought "something is going to happen here" (McIntosh, Blue 13). The driver of the appellant's car should have thought the same and held back. 16 The appellant then submitted that in the apportionment of responsibility the respondent's contribution to the collision was substantially greater than that of the driver of the appellant's car. It was said that the driver of the appellant's car had a momentary lapse in taking due care, but that as against that momentary lapse the respondent was aware that an emergency vehicle was coming up behind him and was obliged to give way to it, but instead of giving way turned into the only unimpeded path open to the emergency vehicle. 17 As part of this submission, although with respect it was not entirely clear what part, attention was drawn to the expression by the trial judge of his apportionment of responsibility. It was as follows - "Balancing these factors and considering the whole conduct of each party I have come to the conclusion that each should bear an equal share of the responsibility for the damage and I would apportion the greater responsibility to the plaintiff and would reduce any verdict by 50% for contributory negligence." 18 There is of course a discrepancy in the words "and I would apportion the greater responsibility to the plaintiff". It seems to me, however, that it is quite plain that this was a slip perhaps reflecting some earlier consideration by the trial judge. It is clear that his Honour held that the apportionment should be equal. Even if it did indicate an earlier thought that the apportionment should have the greater responsibility resting on the respondent, that was not his Honour's final view, and the question for us is whether or not it has been shown that the equal apportionment was erroneous. 19 The appellant properly acknowledged that the apportionment of responsibility would not lightly attract appellate intervention, see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 429 and Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867. In my opinion the apportionment made by the trial judge was well open to him. Whether or not it be labelled as a momentary lapse, the fault of the driver of the appellant's car was in my view of the same order as the fault involved in the respondent's misjudgment of the approach of the emergency vehicle and his failure to check by looking over his shoulder. The two faults combined to bring the collision. I do not think grounds have been shown to intervene in the trial judge's apportionment. 20 Accordingly, I propose that the appeal be dismissed with costs. 21 BEAZLEY JA: I agree. 22 FOSTER AJA: I also agree. 23 BEAZLEY JA: The orders will be as proposed by Giles JA. ********** 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. 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