Caldwell v Ingham [2005] NSWSC 483

New South Wales Supreme Court

CITATION : Caldwell v Ingham [2005] NSWSC 483

HEARING DATE(S) : 26,27,28,29 April 2005 2,3,4,5,6,9,10,11,12,13 May 2005

JUDGMENT DATE : 17 July 2005

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 327

Civil Liability Act 2002 LEGISLATION CITED : Motor Accidents Act 1988

Garry Caldwell - Plaintiff Bronwen Ingham - First Defendant - Cross Claimant PARTIES : Road and Traffic Authority of NSW - Second Defendant - Cross Defendant.

FILE NUMBER(S) : SC 20138/04

Mr R McIwaine SC with J Davidson - Plaintiff COUNSEL : Mr A Renshaw - First Defendant Mr T Barrett - Second Defendant.

Schrader & Associates SOLICITORS : Henry Davis York Sparke Helmore

LOWER COURT JURISDICTION : District Court

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

27 July 2005

No: 20138 of 2004 Garry Ralph Caldwell v Bronwen Clare Ingham & Anor.

JUDGMENT:

INTRODUCTION: 1 His Honour: The Plaintiff (Mr Caldwell) brings this action to recover damages for injuries allegedly suffered about midnight on 11/12 October 1997, when the motorcycle he was riding collided with a Nissan Patrol 4WD vehicle driven by the First Defendant (Ms Ingham) at the intersection of the Pacific Highway with College Crescent and Pretoria Parade, Hornsby (the Intersection). 2 The proceedings were commenced by the filing of a Statement of Claim in the District Court on 10 May 1999. Only Ms Ingham was named as defendant. However, she, by Cross-Claim filed 23 January 2002, joined the Roads and Traffic Authority of NSW as a Cross-Defendant. I will, hereafter, refer to that Authority as RTA, which may be taken to encompass, where relevant, its predecessor, the Department of Main Roads. RTA was, by Amended Statement of Claim filed 28 January 2004, joined as a second Defendant and on 8 April 2004 an order was made transferring the matter into this court. Ms Ingham's Amended Defence admitted breach of duty of care, but alleged contributory negligence. 3 The allegations by Mr Caldwell and Ms Ingham against RTA concerned the design, control, installation, maintenance and operation of traffic signals at the intersection. RTA denied negligence, asserted that the proceedings against it were subject to the provisions of the Civil Liability Act, and alleged contributory negligence against Mr Caldwell. 4 It is convenient to deal at this stage with RTA's contention that Mr Caldwell's action against it is governed by the Civil Liability Act. Mr McIlwaine SC, who appeared with Mr Davidson for Mr Caldwell, argued the contrary. 5 The Civil Liability Act commenced on 20 March 2002. Schedule 1 Savings and Transitional Provisions provides by clause 2(1) that Pt 2 of the Act regulating personal injury damages applies to an injury received whether before or after the commencement of the Act. However, by sub-clause (2) Pt 2 of the Act does not apply to, or in respect of, an award of damages in proceedings commenced in a court before the commencement of the Act, that is before 20 March 2002. 6 Relevantly, the question is whether the proceedings against RTA are to be taken to have commenced when the original action against Ms Ingham was commenced, viz 10 May 1999, in which case the Civil Liability Act would plainly not apply, when RTA was joined as a Cross Defendant on 23 January 2002, again a date before the Civil Liability Act commenced, or on 28 January 2004, when the Amended Statement of Claim joining RTA was filed. 7 The precise point was decided by Studdert J in George v Lifese Steel Erections Pty Ltd (2003) NSWSC 1146. His Honour held, in accordance with SCR Pt 8 r 11(3) similar in effect to Pt 7 r 11(3) of the District Court Rules pursuant to which the Statement of Claim herein was amended that the action against a second defendant joined as such after the commencement of the Civil Liability Act was governed by that statue even though the second defendant had become a party as a cross-defendant before the commencement of the Act. As a matter of judicial comity and in accordance with statements contained in such cases as the recent decision of the Full Court of the Federal Court Minister for Immigration & Multicultural & Indigenous Affairs v Szans (2005) FCAFC 41, I think I should accept and follow the reasoning of Studdert J. Although Mr McIlwaine also based his submission on Pt 7 r 11(2) of the District Court Rules, I do not think that the subrule, which deals with the substitution of a party, is applicable to this case. Accordingly, I hold that Mr Caldwell's action against RTA is governed by the Civil Liability Act. The action against Ms Ingham is, of course, subject to the Motor Accidents Act. 8 Before proceeding to a consideration of the evidence, it is appropriate to set out several matters, which are not in contention. · At the intersection the Pacific Highway makes virtually a right angle turn. Although it runs generally northward from Sydney, at the intersection traffic out of Sydney changes from a westerly direction to a northerly direction. Pretoria Parade enters the intersection from the west and College Crescent from the south. · The intersection is controlled by traffic lights, first installed in 1975. The phasing of the lights was varied in 1982,1994 and 2004. · The approach to the intersection via College Crescent involves negotiating an uphill incline of between 10% and12%. · Just before midnight on 11/12 October 1997, Mr Caldwell was riding his Harley Davidson motorcycle with a pillion passenger, Mr Mathew Rook, north in College Crescent towards the intersection, intending to travel through it and continue north on the Pacific Highway. · At about the same time, Ms Ingham was driving the Nissan Patrol 4WD vehicle with three passengers south on the Pacific Highway towards the intersection, intending to make a right hand turn into Pretoria Parade. · At the time the phasing of the traffic lights was such that a right hand turn from the highway, travelling south into Pretoria Parade was permitted, either as a "filtered " turn, that is a turn between northbound traffic in College Crescent proceeding north into the Pacific Highway, or on a right hand turn green arrow which appeared, but only if the volume of traffic required it, at the end of the phase, permitting a filtered turn. · Ms Ingham brought her vehicle to a halt at the stop-line and then proceeded into the intersection, while two northbound vehicles passed. Following this she commenced her turn into Pretoria Parade. · Ms Ingham's vehicle was struck within the intersection by the motorcycle driven by Mr Caldwell, the point of impact being about midway along the nearside of her vehicle. · As Mr Caldwell approached the intersection the traffic lights facing him were green but they changed to amber before he entered the intersection. · Ms Ingham was 17 years of age and had received a provisional drivers licence only about 2 weeks previously. · Mr Caldwell was aged 28 and was a reasonably experienced motorcycle driver, although his traffic record was poor.