Robyn Maree Inslay v Lara Jurkiewicz [2000] ACTSC 108 (1 December 2000)

Last Updated: 18 January 2001

Robyn Maree Inslay v Lara Jurkiewicz [2000] ACTSC 108 (1 December 2000)

CATCHWORDS

NEGLIGENCE - Motor vehicle accident - Duty of care on defendant notwithstanding plaintiff's failure to give way.

CONTRIBUTORY NEGLIGENCE - Failure to obey a give way sign

Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424

No. SC 88 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 1 December 2000

IN THE SUPREME COURT OF THE )

) No. SC 88 of 199

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBYN MAREE INSLAY

Plaintiff

AND: LARA JURKIEWICZ

Defendant

ORDER

Coram: Master T. Connolly

Date: 1 December 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The parties have leave to enter judgment giving effect to the finding that the plaintiff's damages be reduced by 75 per cent due to her contributory negligence.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred shortly after 9pm on the evening of 3 December 1997 at the corner of Hurley Street and Mawson Drive, Mawson, in the Australian Capital Territory. Mawson Drive is a major two-lane roadway, and it forms a T intersection with Hurley Street. There is a give way sign at Hurley Street, a single lane residential street. The plaintiff's vehicle attempted to execute a right hand turn from Hurley Street and came into collision with the plaintiff, who was driving in an easterly direction along Mawson Drive. Liability was strongly in issue, with the defendant denying primary liability, and, in the alternative, alleging significant contributory negligence on the part of the plaintiff.

2. It was common ground that the plaintiff sustained quite significant injuries in this case, and I was told that the parties were agreed on an appropriate quantum, the issues for determination at this hearing being solely confined to my findings on liability and contributory negligence.

3. The plaintiff gave evidence of her recollection of the accident, but claims that she has no recall at all of events after she approached the intersection. There was no challenge to her loss of memory. She had an evening job as a cleaner, and had just dropped a colleague off before the accident occurred. This was her normal routine after work, and she said that she would normally slow to a stop to ensure that there was no traffic on Mawson Drive before executing a right hand turn to proceed to her home. She was aware of the presence of the give way sign, and her obligation to give way, and she was also aware that vehicles on Mawson Drive were, in her opinion, frequently travelling at high speed. She agreed that she had been charged after the accident with failing to give way at a give way sign, and that she did not contest this charge.

4. The defendant is a young student who had only recently obtained her drivers licence, and was driving her father's vehicle home after picking up her brother from a scouts meeting. Her evidence was that she was stationary at the lights at the intersection of Mawson Drive and Athlon Drive, intending to proceed home in an easterly direction along Mawson Drive. She was in the right hand lane. She says that as the lights changed " I accelerated slowly because I wasn't used to the actual starting of the car." She said that she had got up to third gear when " I saw a car come out from an intersection and then I braked." The car came from her left, and was the car driven by the plaintiff. The defendant said that after she braked she hit her head on the steering wheel in the impact and passed out. She said that her estimate of speed at the point before she braked was that she was doing "about 60 kilometres an hour", but she agreed that she could have been doing a bit more or a bit less. In an interview to police on 6 December, some three days after the collision, the defendant had said that she estimated her speed at "about 60 or 70 kilometres an hour."

5. There was also an independent witness to the accident, Mrs Tucker. She was returning to her home after picking up her daughter from a ballet class, and was very familiar with that stretch of Mawson Drive. She says that she noticed a white car, which was the car driven by the defendant, next to her while stationary at the lights at the intersection of Mawson Drive and Athlon Drive. She said that the car was driven by a young woman, with a passenger and a young boy in the back seat. She said that when the lights changed she took off as normal, but the white car "took off very quickly. You could hear it sort of revving up and it took off at a reasonable speed, compared to what I did." She said that her daughter made a comment about her slow driving, and then she "sort of kept on driving and pottered on up the road."

6. Mrs Tucker was asked what speed she achieved, and said, "I can't exactly say, but it - as I took off properly, I would have got to sort of, you know, 40,50." By the time the accident occurred she said the white car was "a good two car lengths, maybe three car lengths in front of me." She was asked what speed she thought the white car was doing, and said "I'm not an expert, but I'd have to say between 80 and 90." She said that at this time she was doing "40/50" and was far enough back to see that the cars were going to collide. She was able to slow, avoid the impact, and bring her car to a halt. Mrs Tucker is a qualified nursing sister, and she was able to render some assistance at the scene. Mrs Tucker is to be commended for this.

7. The real issue in dispute at this hearing was the speed at which the defendant was travelling, and Mrs Tucker, who I found to be an impressive witness, and someone who was clearly doing her best to be truthful and render assistance to the court, was subject to considerable cross examination. In her evidence in chief she had estimated the defendant had reached a speed of 80 or 90 kilometres, when she had reached a speed of 40 or 50 kilometres, and had said that the plaintiff was two or three car lengths ahead of her at the point of impact. As Mr Elkhaim put it in cross examination, if we took the greater estimate of the defendant's speed, being 90 kilometres an hour, this would have the defendant travelling at about twice the speed of Mrs Tucker, both having started from the same point at the same time when the lights changed, and yet only being two or three car lengths ahead after a distance of over 200 metres.

8. In a statement made to an investigator from the NRMA and signed by Mrs Tucker on 5 July 1999 Mrs Tucker said, "When the lights turned greed the white car took off reasonably quickly. Claire and I had a bit of a laugh when Claire said something like Mum you will have to get a quicker car. I would not have the foggiest about what speed she was doing." Mrs Tucker agreed that she signed this statement, and that at that time she was not able to estimate the defendant's speed, but she did say that the interviewer at that time "helped with the words."

9. In a subsequent unsigned statement made to persons associated with the plaintiff's case, and included in an expert report, Mrs Tucker said "In my opinion the white car, at the time of the accident, was travelling between 80 and 90 km/h and definitely at least 80 km/h."

10. It was put to Mrs Tucker, and she agreed, that she had made a range of estimates of her own speed, ranging from 40 to 60 kilometres an hour. She agreed that, if she was travelling at 60, and it was her view that the defendant's car as travelling quite a bit faster, then it would have been going well over 60. It was then put: "And if we slow you down, let's take you down to the bottom of your range, at 40, and the white car is going faster than you, then it may have been going at 60, for example. That would be 20 kilometres faster than you." Mrs Tucker agreed with this, and with the following proposition, that "if you were going at 40 and the other car was going a third quicker than you it may still have only been going at 60."

11. Two expert reports were tendered in the plaintiff's case. The first was from Mr Richards, who I am satisfied is a well-qualified civil engineer, but who has limited experience in road traffic accident analysis. I was not impressed with his report and oral evidence, as it seemed to me that in many respects his report made the leap from being an impartial analysis of the facts to being partisan advocacy. There were observations in the report about accessories fitted to the defendant's vehicle, which Mr Richards said "indicates an interest in motor sports by the owner." This is of course quite irrelevant, and particularly so as the driver of the car was not the owner, but his daughter. His reports repeatedly stated that the witness, being Mrs Tucker, was quite sure of her speed. This does not match my analysis of Mrs Tucker's evidence, which I find to be truthful, but that she was not at all certain as to speeds, other than that the defendant was travelling faster than she was. Mr Richards sought to draw an estimate of speed from the observable damage to the vehicles, but I am satisfied that these estimates go beyond his expertise, and overall I am not assisted by Mr Richards' reports.

12. There was also a report by Mr John Jamieson, a principal in Jamieson Foley and Associates. No challenge to his expertise was made, and indeed it was conceded properly by the defendant that Mr Jamieson is a most experienced accident investigator. Mr Jamieson expressed the view that the damage to the defendant's vehicle was the equivalent to a "fixed barrier impact of 50-60km/h." However, he said that this occurred after a period of braking and said in his report: "To determine the approach speed of the Alfa Romeo, the actual impact speed would need to be added to the speed reduction created by skidding before, during and after the collision. Figure 5 notes that this skidding was some 20.9 metres long. Using normal Newtonian physics, it is possible to show that based on a reasonable friction factor (about 0.75) between the Alfa Romeo's tyres and the road, a vehicle leaving a 20.9 metre skid mark (and not hitting anything) would be travelling at 63 km/h before braking. Therefore, if one took account of the amount the Alfa Romeo decelerated due to the collision itself (at least 30-40) km/h) then the evidence appears to support the hypothesis that the Alfa Romeo was approaching a speed of at least 80 km/h (and possibly faster) as the witness suggested."

13. The attack on this analysis was based on the fact, with which Mr Jamieson agreed, that the 20.9 metre skid mark was not the mark made before the impact, but the mark from first observable tyre marks to the point at which the defendant's vehicle came to rest, which was well beyond the point of impact. In cross examination Mr Jamieson agreed that, although the point of impact was not apparent on his map, the bulk of the 20.9 metre skid mark in fact occurred after the point of impact. He said that this did not however affect his conclusion that the defendant's vehicle was travelling at greater than 60 kilometres an hour. I am not satisfied with this explanation. I accept Mr Jamieson's opinion that the impact speed was between 50-60km. In order to get to the original speed Mr Jamieson, in the passage set out in paragraph 12, seemed to rely on the length of the skid mark to determine the pre-braking speed. As he has acknowledged that most of this must have occurred after the impact it seems to me that the `Newtonian physics' he has used cannot give a reliable estimate of the defendant's pre-braking speed, as we do not know the braking distance. All that I can reliably conclude from Mr. Jamieson, it seems to me, is that the defendant was probably driving at something a little over 60km/hr. There was no expert evidence in the defendant's case.

14. On all of the evidence I am satisfied, on the balance of probabilities, that the defendant was travelling at a speed somewhat in excess of 60 kilometres an hour at the time of the accident. I am persuaded by Mr Jamieson that she was travelling at greater than 60 kilometres, but I am not satisfied, on the balance of probabilities, that she was travelling at 80 or 90 kilometres an hour. I find that she was travelling at a speed between 60 and 70 kilometres an hour, in line with her initial estimate to police some three days after the accident. This said, I am not satisfied that speed was the principal factor in this accident.

15. I am satisfied that the plaintiff's vehicle pulled out into Mawson Drive attempting to execute a right hand turn. The defendant says that she did not see the plaintiff until the plaintiff was right in front of her, and I find from this that the defendant was negligent in failing to keep a proper lookout. While she knew that the side streets were governed by give way signs, it is not a sufficient argument in respect of the existence of a tortious duty to say that, because the plaintiff drove through a give way sign there is no duty of care on the defendant. As the Full Bench of the High Court said in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427 (per Barwick CJ, McTiernan, Kitto Taylor and Owen JJ), right of way rules:

"are undoubtably 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 the common law."

16. The plaintiff in proceeding along Mawson Drive at night should have been aware of the lights of the plaintiff approaching the intersection, and should have been able to slow and avoid, or at least minimise the impact. There is a duty of care on all drivers, even on major roads with controlled access, to be alert to the possibility of other vehicles entering the roadway. I am satisfied that a breach of duty of care has been established and so find the defendant negligent.

17. I should add that the defendant also agreed that she took no action to avoid the collision other than braking, and did not consider moving her vehicle into the left lane. I am satisfied that, as Mrs Tucker was some three-car lengths behind, this was an option open to the defendant, and that her failure to take appropriate action to avoid the collision also establishes liability.

18. Mrs Tucker said she saw the red car, which was the plaintiff's car, emerge from Hurley Street. She said in her evidence in chief that it `just came out. Just drove straight out and turned round to go down." In an earlier statement to an investigator she had given a similar statement, saying " The first thing I saw was a red car coming out from the street that comes in from the left. It did not stop and entered Mawson Drive."

19. I am satisfied from this evidence and the evidence of the defendant that the plaintiff did not stop and wait for approaching traffic to clear on Mawson Drive. The accident happened after 9pm, and all the vehicles had their headlights on, on a clear night. Mr Jamieson agreed that the plaintiff would have been able to see oncoming traffic, even assuming that she did not stop at the intersection but merely slowed, and agreed with the proposition that, for a vehicle approaching Mawson Drive from Hurley Street "there's a pretty obvious give say sign - there's a pretty obvious big road in front of you and you really shouldn't be going out there unless there are no cars coming." I am satisfied that the plaintiff, despite the give way sign, and the obligation even absent the sign on a T intersection to give way to traffic approaching from her right, proceeded without stopping across the oncoming traffic, and it follows that she either failed to look, or having looked failed to see the obvious danger presented by the defendant and Mrs Tucker proceeding along Mawson Drive in her direction.

20. I am satisfied on all of the evidence that the plaintiff pulled out in front of the oncoming vehicles and attempted to execute a right hand turn, and so placed herself directly in front of the defendant as she proceeded along Mawson Drive. Although I have found primary liability, and have found, on the balance of probabilities that the plaintiff was exceeding the speed limit by a small margin, I am not satisfied that the plaintiff's speed or failure to avoid the collision was the prime cause of the accident. The plaintiff, by pulling out onto what she knew was a main road, and indeed what she knew was a road on which drivers often exceeded the speed limit, must bear the prime responsibility for this accident.

21. It seems to me in all of the circumstances of this case that the plaintiff has very largely been responsible for this accident, but that the defendant was nevertheless negligent in not seeing the plaintiff until she was in front of her and the impact was imminent. This is a case where in exercising my discretion in apportioning liability, I assess the respective contributions to this accident as 75% to the plaintiff and 25% to the defendant. That is to say, I would reduce the damages assessable in this case by 75% to reflect the plaintiff's degree of responsibility in this accident.

22. The parties indicated that they had agreed upon an assessment of damages, and that, following my findings on liability, they would be in a position to prepare draft orders for the entering of final judgement. The parties have leave to enter judgment in accordance with my findings. I will hear the parties as to costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 1999

Counsel for the Plaintiff: Ms. L Gabriel

Solicitor for the Plaintiff: Alliance Legal

Counsel for the Defendant: Mr. M Elkhaim

Solicitor for the Defendant: Phillips Fox

Date of hearing: 13 November 2000

Date of judgment: