Kelly v Carroll [2002] NSWCA 9

New South Wales Court of Appeal

CITATION : Kelly v Carroll [2002] NSWCA 9 FILE NUMBER(S) : CA 40013/01 HEARING DATE(S) : 5 February 2002 JUDGMENT DATE : 5 February 2002

PARTIES : Amanda Jayne Kelly (Appellant) Melinda Jane Carroll (Respondent) JUDGMENT OF : Beazley JA at 48, 50; Heydon JA at 1; Ipp AJA at 49

LOWER COURT JURISDICTION : District Court LOWER COURT DC 5453/00 FILE NUMBER(S) : LOWER COURT Cooper DCJ; Tupman DCJ JUDICIAL OFFICER :

COUNSEL : Mr J D Hislop QC/Ms E E Beilby (Appellant) Mr P Menzies QC/Mr P G Maiden (Respondent) SOLICITORS : Stewart Cuddy & Mockler (Appellant) Kevin Byrnes (Respondent) CATCHWORDS : ND LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Derrick v Cheung (2001) 181 ALR 301 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 CASES CITED: Sibley v Kais (1967) 118 CLR 424 Trompp v Liddle (1941) 41 SR (NSW) 108 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 DECISION : Appeal dismissed; appellant to pay respondent's costs of the appeal; cross-appeal dismissed with no order as to costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40013/01 DC 5453/00

BEAZLEY JA HEYDON JA IPP AJA

5 February 2002 AMANDA JAYNE KELLY v MELINDA JANE CARROLL

JUDGMENT

1 HEYDON JA: This is an appeal from a verdict and judgment for the plaintiff in the sum of $220,506.53 given by Cooper DCJ on 11 December 2000. The plaintiff was injured when riding a motor scooter which came into collision with a car driven by the defendant. The trial judge assessed damages at $551,266.33 but reduced that figure by 60% for the plaintiff's contributory negligence. 2 The defendant appeals. She contends that she was not negligent; that, even if she had been negligent, that did not cause the accident; and that even if it had been correct to hold her liable in negligence, the deduction for the plaintiff's contributory negligence should have been much higher than 60%. She also attacks a costs order made by Tupman DCJ on 26 June 2000 when the trial could not proceed and had to be adjourned. 3 The plaintiff cross appealed but the cross appeal has been abandoned. Background 4 The incident occurred at the intersection of the Bruxner Highway and Brewster Street, Lismore. The trial judge said: "The accident occurred shortly after 4.00pm on a clear, dry afternoon. The Bruxner Highway, also known as Ballina Road, runs east/west at the relevant location and has two lanes for each direction. Brewster Street runs north/south and intersects the highway. There are dotted lines at the opening of Brewster Street on the roadway to indicate that the Bruxner Highway is the priority road. At the relevant time the plaintiff was driving her moped motor scooter in a westerly direction along the highway and came to the corner of Brewster Street intending to make a turn right, that is in a northerly direction into that street. The traffic travelling [in] the opposite direction from the plaintiffs, was quite heavy. Accordingly the plaintiff stopped adjacent to the middle of the road in Bruxner Highway without entering upon the intersection, awaiting a break in the traffic. … whilst the plaintiff was stationary she saw a break in the oncoming traffic. This break was caused by two vehicles travelling east, one of them was in the lane adjacent to the median strip, it was a van. This van was stationary in its lane indicating it intended to make a right hand turn to travel south in Brewster Street. At the same time a car was either stationary or moving very slowly in the kerbside lane of Bruxner Highway, intending to turn left, or north, into Brewster Street. It was at this stage that the plaintiff started moving across the road. She looked for oncoming traffic but could see none. I am satisfied that part of the reason for this was that a view of the vehicles travelling east in the kerbside lane of Bruxner Highway, would have been partially obstructed by the van in the outer lane waiting to turn right. As the plaintiff proceeded to turn right she looked up Brewster Street and the next thing she knew she was hit. She did not see what hit her. Looking at things from the defendant's point of view – she was driving east on the Bruxner Highway, approaching the intersection of Brewster Street at the speed which was being travelled by all of the traffic, namely sixty kilometres per hour. She could not recall when giving her evidence whether there was any vehicle in front of her turning left. However by the time she reached the intersection the inside lane of Bruxner Highway on which she was travelling was clear. She then entered upon the intersection at a speed of about sixty kilometres per hour. She said that she was looking ahead and also looked to her left in Brewster Street to see if there was any oncoming traffic. The next thing she knew there was a bump and she did not know what caused it. She then proceeded down some one hundred to two hundred metres on the highway, past the intersection and stopped and came back and saw the plaintiff in an injured condition. It is quite clear that both drivers were involved in the collision without either of them having seen the other vehicle beforehand. On behalf of the plaintiff it was submitted that the defendant had moved from the kerbside [lane] to the outer lane of traffic in Bruxner Highway before entering upon the intersection. … The evidence comfortably satisfies me that the defendant did not move to the outer lane. Had she done so, she would have been prevented from entering the intersection by two vehicles. The first was the van which was intending to turn right and immediately behind that was a car being driven by Mr Ehsman who gave evidence in this case. It may well have been that the defendant intended to change lanes, but then changed her mind because of the presence of the vehicles in the outer lane. The evidence of Mr Ehsman was that he was driving in an easterly direction, the same direction as the defendant, on Bruxner Highway in the outer lane. He slowed down because of the presence of a van stationary in that lane ahead of him with its trafficators indicating an intention to make a right hand turn into Brewster Street. At a point when he was either going very slowly or stopped, what he described as a rusty coloured car passed him on the inside lane and this was the car that ultimately stopped after the impact with the plaintiff. He did not see the actual impact. One then has a situation where neither of the participants in the action was aware of the presence of the other upon the roadway, until the very time of impact. The first question to determine is has the plaintiff satisfied the Court on the balance of probabilities that the defendant was negligently driving, and that such negligence materially contributed to the impact. The defendant gave evidence that she was familiar with this section of roadway and was aware that from time to time vehicles would be seeking to make a right hand turn in front of the path she was travelling. She was aware that the van was present, stationary in the outer lane, waiting to make a right hand turn and that this could partially obstruct her view of the intersection. In addition she ought to have been aware with the exercise of reasonable care that the stationary vehicle in the outer lane, plus the presence of the left turning vehicle in the kerbside lane would cause a gap in the eastbound traffic which could encourage a person to turn right from the east and then north into Brewster Street. Under these circumstances I am satisfied that the defendant ought to have kept a close lookout for such vehicles as she entered upon this intersection and also ought to have lessened her speed from about sixty kilometres per hour. In this regard it needs to be remembered that at sixty kilometres per hour, she would have crossed over that intersection in approximately two and a half seconds. Without keeping a proper lookout and without lowering her speed she deprived herself of the opportunity to avoid a collision, either by sounding her horn or by varying her direction to the left, or by braking, or by a combination of all three. Under these circumstances the plaintiff has satisfied the Court on the balance of probabilities that the defendant was negligent." 5 The trial judge then stated the following conclusions about the plaintiff's contributory negligence: "The plaintiff was riding a small motor scooter. She ought to have been aware that because she was on a small object in comparison with other vehicles on the roadway, that a view of her would have been obstructed by the stationary van referred to earlier. Under those circumstances she ought, with the exercise of reasonable care, not to have proceeded upon that intersection other than at a very slow speed and carefully watching to see that no vehicles came out from behind the stationary van through the kerbside lane of Bruxner Highway. Although she was going at a slow speed, she was not in fact keeping such a lookout. Of course the regulations provide that she was obliged to give way to the oncoming vehicle as she was turning right. The plaintiff was in breach of this regulation. For all of these reasons I am comfortably satisfied that the plaintiff was guilty of negligence. The next question to determine is the extent to which the plaintiff's damages shall be reduced having regard to her fault and to the amount considered just [and] equitable in the circumstances of the case. As previously mentioned, neither the plaintiff, nor the defendant were keeping a proper lookout. However in favour of the defendant it must be said that she had the right of way in accordance with the regulations under the Traffic Act, whilst the plaintiff was obliged by those regulations to yield right of way. Having regard to the comparison, both of culpability, that is of the degree of departure from the standard of care of the reasonable person, and of the relevant importance of the acts of the parties in causing the damage, I am satisfied on the balance of probabilities that it is just and equitable in the circumstances of this case that the plaintiff's damages be reduced by sixty per cent." The defendant's arguments on negligence 6 The defendant did not, in this Court, challenge the trial judge's conclusions of primary fact. However, she attacked the trial judge's conclusion that she was negligent in the following ways. In writing she submitted, first: "… at all times [she] was travelling within the speed limit and in conformity with surrounding traffic. If the Defendant was to travel at a lower speed, less than that in conformity with the traffic, it could have created other risks to other motorists." That argument is unsound. For the defendant to have slowed down at the intersection would not have caused risks to other motorists. Each of those motorists travelling in the same direction as the defendant ought to have slowed down to the extent necessary as well. Occasional periods of slow movement for that reason are entirely typical experienced in urban traffic conditions. It would not have caused unreasonable disruption. 7 In oral address, Mr J D Hislop, QC, who appeared for the appellant with Ms E E Beilby, stressed that if the defendant had been driving at the speed which the arguments against her called for, it could have been as low as 10 or 15 kilometres per hour and could have clogged up traffic on the highway. It may indeed be that the defendant should have slowed down to that extent. But either the obstruction would have been of relatively short duration, or those responsible for the roads in question should have ensured that they could be used by safe drivers in a manner compatible with reasonable progress. It is not a defence to negligent driving that the roads are unsatisfactory. 8 Secondly, the defendant submitted: "A driver is entitled to assume that others will not commit gross acts of negligence without warning. In the present circumstances the Respondent committed such an act involving, inter alia, a breach of subregulation 71(1)(b) of the Motor Traffic Regulations 1935, in that she failed to cause her vehicle to stand until it was able to make a right hand turn across the path of oncoming traffic with safety. In all the circumstances it is submitted that his Honour applied too high a standard of care to the Appellant. … For the Appellant to have any prospect of avoiding the accident, she would have had to reduce her speed to a virtual walk, which is in fact what the Respondent's Senior Counsel submitted was necessary at trial. This places an unrealistic standard of care upon someone in the position of the Appellant." 9 So far as the argument characterises the plaintiff's conduct as gross negligence, it is too extreme. It is certainly common ground that it was negligent. But she had waited two minutes in order to make the turn. She thought she saw an opportunity to turn created by the stopping of the vehicle nearest her in the middle lane and the turning of the car from the kerbside lane into Brewster St. The conditions were not entirely satisfactory from any driver's point of view. They generated a response from the plaintiff which was in part cautious, but, though in part careless, was not grossly negligent. It was careless in the sense that the opportunity she perceived was not, by the time she reacted to it, an opportunity in truth available, because had the opportunity been in truth available within the period of her reaction time, there never would have been a collision. 10 Errors by other drivers and by pedestrians are among the things a motorist can be obliged to keep a lookout for. In Sibley v Kais (1967) 118 CLR 424 at 427, Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ said, of regulations similar to subregulation 71(1)(b) of the Motor Traffic Regulations 1935: "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. … The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."