Zheng v Wallace

His Honour: At approximately 4.39pm on Sunday 6 December 2009, Peter Townsend Wallace (the defendant) was driving a T904 Kenworth Prime Mover registration number 631859, which was towing two empty B-double trailers (conveniently collectively referred to as the ‘prime mover’). The prime mover was being driven in a northerly direction along the Great Northern Highway, Middle Swan in the State of Western Australia, towards the intersection of the highway with Dale Road. This was a T-intersection on the defendant’s left.

Yin Fan Zheng (the plaintiff) was driving a Toyota Camry sedan registration 1DCR036 (conveniently referred to as the ‘Camry’) in an easterly direction along Dale Road. There was a give way line painted on Dale Road at the T-intersection. The line was operative for vehicles that were travelling in an easterly direction on Dale Road. It is not in dispute that the plaintiff was obliged to give way to the defendant’s prime mover as it was travelling on the highway. The plaintiff was required to give way to traffic travelling on the highway whether that traffic was travelling north or south.

At the intersection, the plaintiff attempted to make a right hand turn into the Great Northern Highway in order to travel in a southerly direction. There was a continual line of traffic in the southbound lane.

It was daylight at the time and the roadway was dry. The combined weight of the prime mover was approximately 32 tonne.

The front of the prime mover collided with the right hand side of the Camry. The plaintiff suffered serious injuries as a result of the collision including a severe traumatic brain injury. She was 41 years old.

All of the above facts are uncontroversial.

This judgment is confined to the issue of liability, as agreement has been reached between the parties as to the plaintiff’s damages in the sum of $3,032,368 plus fund management costs.

The matters for decision by the court are:

On 15 March 2013, the plaintiff commenced proceedings in this court by way of a statement of claim in which she alleges that from the defendant’s elevated position in the prime mover he had a clear line of sight to observe the movements of the Camry. The plaintiff claims that as she reached the intersection of Dale Road and the highway, she stopped the Camry at the give way line. After stopping at the give way line, the plaintiff claims that she moved the Camry slowly into the intersection to negotiate a right hand turn and join the southbound line of traffic on the highway.

The plaintiff claims that it was open to the defendant to modify the movement of the prime mover in a timely fashion as the Camry moved slowly into the intersection. The plaintiff claims there was a foreseeable risk of injury which was not insignificant and a reasonable person in the defendant’s position would have realised that harm to the plaintiff would occur if he continued to operate the prime mover in the manner that he had prior to the Camry entering the intersection.

The plaintiff’s claim is pleaded in negligence. It was negligent, the plaintiff claims, for the defendant not to moderate the operation of the prime mover after the Camry moved into the intersection and that negligence was a necessary condition of the occurrence of the harm to the plaintiff.

The particulars of negligence alleged in the statement of claim are as follows:

In an amended defence filed on 28 November 2013, the defendant denies that he was negligent. Further and in the alternative, the defendant pleads that the injuries were sustained by the plaintiff wholly or partly as a result of her own fault and contributory negligence. The particulars of contributory negligence are as follows:

I should mention that as the collision occurred in Western Australia, the plaintiff relies upon Part 1A of the Civil Liability Act 2002 (WA) (the CLA) and the Motor Vehicle (Third Party Insurance) Act 1943 (WA). Section 5B CLA provides:

Questions of breach of duty, causation and contributory negligence are governed by the CLA. The onus of proof of breach and causation is on the plaintiff on the balance of probabilities. Section 5C CLA is as follows:

As to contributory negligence, s 5K CLA provides:

The plaintiff was represented by Mr C T Barry QC with Mr J Davidson, and Mr K P Rewell SC represented the defendant.

I propose to commence a summarised review of the evidence. It is apposite to note that the plaintiff has no recollection of the circumstances of the accident. Her unsigned statement (ex 4) was tendered in the defendant’s case. The plaintiff was required for cross-examination by the defendant.

She was asked by Mr Rewell whether she was on her mobile phone just before the accident, but she could not recall whether she was driving or not. I give no weight to the plaintiff’s unsigned statement. Neither the unsigned statement nor the plaintiff’s oral testimony assisted in determining the factual issues that are in dispute.

The sole witness called in the plaintiff’s case (other than Roger Stuart-Smith, an expert witness) was Senior Constable James Brock.

Senior Constable Brock gave evidence that he attended the site of the accident on December 9, arriving at 4.43pm. He observed “heavy road works” (T10 5) within the area. He also stated that the posted speed limit was 70 km/h (T11 45). He was unsure however, whether there was a speed sign on the Great Northern Highway near the turn off to Swan Christian College (T10 32-40).

He recorded in his “P72” that at the intersection of Dale Road and the Great Northern Highway there was, at the time of the accident, a “give way line” which, he said in Western Australia indicates that traffic approaching the line must give way to traffic travelling on the intersecting road (T13).

He observed that when standing at the intersection if one looked in a southerly direction down the Great Northern Highway the distance one could see “would be 400 maybe to 500 metres” (T13 1).

Senior Constable Brock also recorded in his “P72” that both vehicles involved in the accident were “proceeding normally” prior to the collision (T13 49-50; T14 1-6).

He gave evidence that he believed that upon impact with the prime mover the Camry “had been pushed somewhat from the point of impact” (T16 20). At the time of impact the vehicle was “within the roadway of the Great Northern Highway” (T16 28) and upon impact it was pushed from the western side partly onto the eastern side (T16 26-35).

Various photographs were tendered during the police officer’s evidence including ex Q which consisted of three photographs that he had taken of skid marks apparently left by the truck at the time that he arrived at the scene.

In cross-examination, Senior Constable Brock agreed that the give way line meant that a vehicle coming from Dale Road onto the highway had to give way to traffic flowing in both directions on the highway. He said that with a give way line “you can roll through as long as you give way to all vehicles that’s on or approaching that road that you’re going onto” (T20 40-43). On this topic, Senior Constable Brock gave further evidence as follows (T20 45-50; T21 1):

The defendant provided a statement to Senior Constable Brock that was recorded by the police officer in his notebook (ex 1, 126-128). The statement is as follows:

In a witness statement (ex 1), the defendant recounts that he was very familiar with where the accident occurred as he had driven on the Great Northern Highway many times. The road was in good condition and the vision was very good. He considered the weather and road conditions at the time of the accident “to have represented a perfect driving day” (ex 1, 11). In the witness statement, the defendant’s account of the accident is as follows (ex 1, 12-22):

In his oral testimony, the defendant gave evidence in chief that expanded upon the action that he took before the collision (T30 35-50; T31 1-10):

The defendant said that as the driver of the Camry was approaching the intersection, he noticed that the driver’s head was faced to the left and not to the right. This was before she stopped at the holding line. After she left the holding line, he saw her turn to face to the right. He said that this was when he leant on the horns.

In cross-examination, the defendant gave evidence that the Camry was about “two car lengths…maybe three car lengths back from the holding line, at best” when he observed the plaintiff looking to the left and not in his direction (T37 49-50). He said that the plaintiff approached the intersection but could not estimate the speed of the vehicle. She “late” braked the vehicle with the front wheels across the give way line. He agreed that the Camry after it had stopped moved forward very slowly. When he saw the vehicle go over the give way line, his first reaction was to take his foot off the accelerator, cover the brake and move the vehicle to the right.

The defendant did not dispute that on a Sunday afternoon there was a heavy flow of traffic along the highway. As to when the accident occurred he said (T40 45-48):

The defendant was cross-examined on a statement he provided to an insurance investigator dated 18 May 2010 and paragraphs 21(b) to (d) of the statement were tendered by the plaintiff and marked exhibit U.

Those paragraphs are as follows:

The defendant accepted that he had been interviewed by a police officer immediately after the accident and agreed that the police officer had written down what he had told him in the police notebook. Cross-examination of the defendant on the entries in the police notebook included the following (T59 39-50; T60 1-39):

In further cross-examination, the defendant did not agree that he should have blown the prime mover’s horn earlier than he did.

In a witness statement (ex 2) Ms Atkinson recounts that in the period immediately preceding the collision, she was in the front passenger seat of a vehicle being driven by her daughter, travelling behind the prime mover. She describes the weather at the time as being “fine and visibly clear” (ex 2, 4).

Her vehicle was “travelling about four car lengths behind the prime mover at a speed of approximately 68 km/h” (ex 2, 6). She said that she was aware of the vehicle’s speed as she had earlier that day taught her “daughter how to use the cruise control function” and the vehicle “was consistently travelling at this speed prior to the accident” (ex 2, 6).

Ms Atkinson observed that prior to the collision the prime mover was travelling at a similar speed as her vehicle because the distance between the prime mover and Ms Atkinson’s vehicle “remained the same” (ex 2, 7). She observed that “traffic was very heavy in both directions” (ex 2, 8-9). In her oral evidence, Ms Atkinson said that the traffic in the southbound lane was stationary. There was hardly any movement at all.

As her vehicle approached Dale Road, Ms Atkinson observed the Camry travel along Dale Road towards the intersection of Dale Road and the Great Northern Highway. She stated that the Camry “approached the sign before slowing down and then paused for a couple of seconds. She then moved the vehicle forward slowly at a speed of approximately 5-10 km/h” and then “continued to drive across the northbound lane and right into the path of the truck even though there would have been no vehicles to letting (sic) her in as the vehicles in the south bound lane were stationary due to congestion” (ex 2, 11-12).

Ms Atkinson stated that the Camry continued to drive across the northbound lane and right into the path of the truck. She then heard the truck toot its horn and brake very heavily. There was a lot of smoke coming off the tyres of the truck and the brakes were screeching. Ms Atkinson recounted when the truck tooted its horn, “the lady in the maroon car just stopped across the lane” (ex 2, 14).

When asked whether she recalled now, precisely, when the horn went on and off or not, Ms Atkinson replied (T71 5-9):

Ms Atkinson said the horn and the brakes happened straight away after the Camry went over the give way line. On the topic of the speed of the Camry after it moved over the give way line, Ms Atkinson said (T71 25-29):

Ms Atkinson observed that the impact resulted in the Camry being pushed “about 10 metres north” (WS1 15) and that the Camry “was stationary upon impact across the lane” (WS1 16).

During evidence-in-chief Ms Atkinson said that prior to the collision, whilst travelling behind the prime mover, her ability to see ahead was “quite good because we were a fair way back. We were three or four car lengths back from the truck so I had very good vision” (T70 7-8).

Ms Atkinson was asked whether the prime mover had an opportunity to swerve right to which she responded:

When asked whether the prime mover had a chance to swerve left Ms Atkinson said:

Ms Atkinson described the plaintiff as “driving erratically in that it wasn’t just a smooth drive and stop. It was if… she was in a manual car and she couldn’t get the clutch and accelerator right, you know? That’s what attracted me to her. She was driving a little bit odd” (T69 16-19).

In cross-examination, Ms Atkinson’s evidence included the following (T71 36-50; T72 1-17):

As to the speed of the vehicle after it moved over the give way line, Ms Atkinson’s evidence in cross-examination included the following (T72 40-45):

Roger Stuart-Smith was engaged for the plaintiff and Chris Hall for the defendant. No challenge was raised as to the expertise of either witness. They had participated in a conclave on 19 March 2014 and gave concurrent evidence during the hearing.

Mr Stuart-Smith is a qualified Traffic Engineer with more than 30 years experience in crash reconstruction, road safety engineering, road and traffic systems. His report is ex D. His conclusions included the following (ex D, 34-35):

In his report (ex D, 30) Mr Stuart-Smith discussed perception response time which is the time between the detection of an immediately identifiable hazard requiring an emergency response and the commencement of an emergency vehicle response. He noted that researchers suggested that, given a readily identifiable hazard in front of the driver, in a “fairly straightforward situation,” about 85% to 95% of drivers will respond within 1.5 seconds. He referred to recent research by Muttart that based on the assumptions referred to in the report that an average perception response time of 1.0 seconds, with an 85th percentile time of 1.4 seconds could be expected for a driver in the defendant’s circumstances.

Mr Hall is a Mechanical Engineer consulting in the field of motor vehicle accident reconstruction. His report is ex 3. Mr Hall’s conclusions included the following (ex 3, 17):

The Expert Conclave report is part of the plaintiff’s tender bundle. Shortly stated, the experts agreed that the defendant’s vehicle would have been potentially visible to the plaintiff most likely at a distance in excess of 150 metres and for a time in excess of 7.5 to 8 seconds. They agreed that the B double’s speed at impact was likely to have been about 32 to 34km/h. The experts agreed that Muttart’s approach to the derivation of an expected perception response time is an appropriate methodology to use. The relevant factors included “the brake lag time (time between lifting foot from accelerator to application of full braking)” and “whether the driver had his…foot hovering over the brake” (p 8).

Mr Hall was of the opinion that additional factors that needed to be considered include:

Mr Stuart-Smith agreed with these factors, but noted that they had been incorporated into other variables in Muttart’s algorithm.

There are a number of areas of disagreement between the experts. The first area concerned the movement of the Camry after it moved off from the give way line.

As to the time taken by the plaintiff’s vehicle to move from the give way line to the position just over the centre lines of the highway where it stopped and the impact with the prime mover occurred, Mr Stuart-Smith in his oral evidence proposed a range of 4.0 seconds (if a maximum speed of 10 km/h was reached by the Camry) to 5.4 seconds (if a maximum speed of 5 km/h was reached). He had assumed a travel distance by the Camry of 6.0 metres and hard braking of the prime mover to be 6.0 metres and hard braking of the prime mover to be 0.6g to rest.

On the other hand, Mr Hall proposed a range of 3.3 seconds (if a maximum speed of 10 km/h was reached by the Camry) to 4.8 seconds (if a maximum speed of 5 km/h was reached). Mr Hall had assumed that the Camry had travelled 5.5 metres and hard braking of 0.7g to rest.

Mr Stuart-Smith explained that he had used 0.6g to be conservative as “a higher number means higher G forces, so that is harder deceleration” (T124 15-18). Mr Hall said that he chose 0.7g “because we have a braking condition that does not involve skidding and therefore a skidding coefficient of friction would under-represent the rate at which the vehicle slides” (T125 19-21).

Another area of disagreement was the braking distance of the prime mover from a speed of 70 km/h and the distance the defendant would have been required to react and brake his vehicle to a stop once the plaintiff was identifiable as an immediate hazard.

Mr Stuart-Smith gave evidence that the braking distance was “the distance over which the brakes were fully effective, which is the skidding distance” (T132 11-13). He opined that the braking distance was 37 to 38 metres from 70 km/h to rest, not including a “brake lag” time of 0.5 seconds. Mr Hall expressed the opinion that the skidding distance to rest was 43 metres. The difference of five to six metres between the experts arose from their different interpretation of the photograph ex Q (1). Mr Hall considered that the photograph shows a “greying-in” distance of six metres before full skid marks appear, whereas Mr Stuart-Smith was of the opinion that the “greying-in” distance was confined to one metre.

As to the distance the defendant would have been required to react to brake the prime mover to a stop once the plaintiff was identifiable as an immediate hazard and the perception/reaction time, Mr Stuart-Smith assumed a reaction time of 1.0 seconds up to 1.4 seconds. Mr Stuart-Smith’s range included 0.5 seconds brake lag time. Mr Hall considered the reaction time was 1.0 seconds to 1.5 seconds. If he adopted Mr Stuart-Smith’s methodology of including brake-lag time, the perception-reaction time was 1.5 to 2 seconds, an additional half-second difference.

During the Expert Conclave, the experts agreed that Muttart’s approach to the derivation of an expected perception response time was an appropriate methodology to use. During his oral evidence, Mr Hall said (T176 27-31):

After adjustments and an allowance for Muttart’s model being based on cars rather than trucks, Mr Hall concluded “that it was reasonable to assume that a reaction time of one to one and a half seconds would be appropriate for this type of incident” (T177 1-3).

Mr Stuart-Smith disagreed that Muttart’s model could not be directly applied to the circumstances of the accident using the known variables.

Mr Stuart-Smith’s evidence was that the distance at which the defendant would have been required to react and brake his vehicle (travelling at 70 km/h) to a stop once the plaintiff was identifiable as an immediate hazard was 58 to 68 metres, whereas in Mr Hall’s opinion the distance required was 75 to 86 metres.

Mr Stuart-Smith’s opinion was that had the defendant commenced breaking six-tenths of a second earlier, there would not have been a collision. He said (T160 50; T161 1-7):

The experts’ opinions differed as to the distance the defendant was from the plaintiff’s vehicle when he observed her to enter the intersection. Mr Stuart-Smith’s view was a distance of 67 metres to 94 metres which comprised (T166 21-26):

Mr Stuart-Smith agreed that it was normal to have “greying in”. Mr Hall considered that the distance was 55 to 84 metres.

In written submissions, the plaintiff contended that the defendant was an unreliable witness who had given inconsistent evidence about the circumstances leading up to the accident. It was submitted that the court could not act on his evidence except insofar as it leads to a finding of fact that:

The plaintiff submitted that the second precaution required findings of fact to be made on two matters:

Furthermore, the commencement of the skid marks, the police markings on the exhibited photographs were said to confirm the accuracy of Mr Stuart-Smith’s observation.

The plaintiff referred to various aspects of the defendant’s evidence (PWS 8-14). One of the plaintiff’s contentions was that, it was the creeping forward by the plaintiff while she was looking in the opposite direction that put the defendant on notice, that he could not assume that the plaintiff was aware of his approach or that she would obey the give way line. The plaintiff argued that it was unreasonable for the plaintiff not to toot his horn or slow down in anticipation of her continuing into his path when he knew those two facts.

The plaintiff argued that the reason why the defendant gave unreliable evidence about his observance of the approach of the Camry to the give way line and unreliable evidence about his observations of the traffic coming in the opposite direction was that he assiduously wished to avoid identification of any matter which put him on notice of the very matter that he knew had a significant risk of occurring, namely that the plaintiff would move out in front of him because she had misjudged his speed and position, and was not aware of his approach because she was looking in the opposite direction and creeping into his path.

Another submission was that the court should act upon the evidence of Ms Atkinson as to how the plaintiff approached the give way line. The plaintiff submitted that the court should make the findings of fact delineated (PWS 19).

In oral address, the plaintiff submitted that the defendant let an emergency situation develop where he had to make an emergency brake application rather than sounding his horn or reducing his speed. The plaintiff asked why did the defendant have such an extraordinary focus on the plaintiff? The plaintiff contended that the defendant knew that the plaintiff was driving in a manner which was unusual. His attention was particularly directed to her and was focused on her to such an extent that he was able to observe the colour of her hair and that hair was turned in the wrong direction.

The plaintiff pointed out that these observations occurred as she was approaching the give way line and then she proceeds over it. The plaintiff argued that the defendant is then on notice that she was looking to join the line of traffic and was not aware of the approach of his vehicle. The defendant’s covering of his brake, the plaintiff argued, is the very thing which was not going to avoid the accident. The plaintiff submitted that the “only real relevance of the expert evidence of this case, that it shows that had he done that [slowed down], then this accident would have been avoided. The other alternative of course is simply to warn of his approach” (T224 50; T225 1-3).

In written submissions, the defendant contended that it cannot be inferred from the fact that the plaintiff drove 1.5 metres over the give way line before stopping, that there was an increased risk that she would move off, across the northbound traffic lane of the highway, without looking to her right. When the defendant saw the plaintiff stop over the give way line, he could assume that she would look to her right for approaching traffic, before moving off, as any rational driver would do. The defendant contended that while there is always a risk that a motorist stopped at a give way line will inexplicably move into the path of vehicles travelling through an intersection, that risk is small and did not warrant the defendant sounding his air horns.

The defendant argued that the plaintiff’s assertion that the defendant should have sounded his horn while the plaintiff was stationary over the give way line, or even earlier, and that this may have caused the plaintiff to remain where she was and avoid the collision was a prime example of “hindsight reasoning”.

It was submitted that the defendant did exercise appropriate caution when he saw the plaintiff approach the give way line in an unusual manner before stopping and saw her look to the left. The defendant argued that it was not part of his duty of care to reduce his speed at that time. It was pointed out that the plaintiff’s vehicle was stationary at the time and the only reasonable expectation was that the plaintiff would have looked to her right before moving off and could not have failed to see the prime mover.

It was submitted that the defendant was an obviously honest witness, doing his very best to provide an accurate account of his, and the plaintiff’s actions at the relevant time.

Another submission was that the defendant’s evidence as to what he did upon seeing the plaintiff move off from a stationary position of the give way line was critical and no challenge was made to that part of his evidence. The defendant contended that Mr Stuart-Smith conceded that if that evidence was accepted, there was nothing more the defendant could have done to avoid the collision, unless it is found that he should have braked before the plaintiff moved off from a stationary position, which was not seriously suggested by either expert.

The defendant argued that once it was accepted that the defendant saw the plaintiff’s vehicle from first to last, took reasonable precautions up to and including the time that she stopped over the give way line, and reacted as quickly as he could when she began to move off, thereafter applying full braking on his vehicle, there was nothing more that could reasonably have been expected of him. He contended that there is no basis for finding that he failed to take reasonable care. The defendant submitted that as a matter of law, the above analysis was sufficient to dispose of the disputes between the experts.

As to the matters in dispute between the experts, the defendant argued that in general, the evidence of Mr Hall should be preferred.

My overall impression was that the defendant was doing his best to honestly recall the circumstances of the accident. Given the different occasions and the precision with which he was asked to recount the detail of what occurred, it is hardly surprising there was some variation in the accounts that he has provided over the years. It is appropriate to observe that his account of his actions after the Camry moved off from its stationary position at the give way line has been consistent and was not diminished in any way by Mr Barry’s cross-examination.

My assessment of Ms Atkinson was that she was an honest witness whose evidence supported in most respects the defendant’s testimony. However, I consider on the balance of probabilities that her description that the plaintiff was driving erratically before the give way line was mistaken. She made no mention of the Camry “bunny hopping” or “stopping” and “starting” in her witness statement which is surprising given the unusual nature of what was said to be the plaintiff’s driving. Senior Constable Brock had recorded that both vehicles involved in the accident were “proceeding normally” prior to the collision. I prefer and accept the defendant’s evidence that the Camry approached the intersection at a speed which, he could not estimate and was “late” braked with the front wheels across the give way line.

A principal matter of controversy in this case is Mr Stuart-Smith’s opinion that the defendant could have avoided a collision had he reacted and braked as soon as the plaintiff became an immediately identifiable hazard. It is common ground between the experts that the plaintiff became an immediately identifiable hazard when she commenced to enter the intersection.

Mr Stuart-Smith’s analysis that there was some delay in the defendant’s reaction when the Camry commenced to move into the intersection and the onset of braking was delayed, is not supported by Ms Atkinson’s evidence. She said the horn and the brakes happened straight after the Camry went over the give way line. She recalled that the horns and the brakes all happened at the same time. Ms Atkinson’s testimony on this issue sits comfortably with the defendant’s account that when the Camry stopped momentarily at the give way line he moved his foot so that it was touching the brake pedal and applied the brakes and the horn immediately when the Camry started to move forward.

The reliability of Mr Stuart-Smith’s analysis is not assisted by the different interpretations of the “greying-in” distances as shown in the photographs ex Q(1). Mr Stuart-Smith’s opinion was that the “greying-in” distance was confined to one metre, whereas Mr Hall opined that the “greying-in” distance shown in the photograph before the full skid marks appeared was six metres. The testimony of the defendant and Ms Atkinson of immediate braking provides support for acceptance of Mr Hall’s opinion as to the distance of the “greying-in” area and a skidding distance to rest of 43 metres.

On the issue of the speed of the Camry after it left the give way line, the defendant told Senior Constable Brock that “she was pulling out as if she was pulling out of a driveway, no real acceleration at all (see [28] above). In cross-examination, the defendant agreed that he was intending to convey that the Camry was moving very slowly across the road in front of him (see [36] above). Ms Atkinson estimated the speed of the vehicle to be approximately 5-10 km/h before her attention was focused on telling her daughter to turn left. It was an estimate that she confirmed in cross-examination (see [51] above).

It seems to me on the evidence in this case that I am unable to make a finding as to the precise speed of the Camry after it left the give way line. The defendant’s description of the vehicle “as if [it] was pulling out of a driveway” fits neatly with Ms Atkinson’s estimate of approximately 5-10 km/h.

I make the following findings of fact:

The traffic in the southbound lane of the highway was hardly moving at all at the time of the accident. The vehicles travelling south were “bumper” to “bumper”.

Before braking, the prime mover was travelling at 70 km/h, which was the speed limit.

The plaintiff approached the give way line quickly and braked late, coming to a stop with the front bonnet and front wheels over the give way line. The experts agreed that the front of the Camry was around 1.5 metres forward of the give way line. I make this finding of fact in accordance with the experts’ agreement.

When the defendant saw the Camry stop over the give way line, he took his foot off the accelerator and put it over the brakes, where it was just touching but not depressing the brake pedal. The defendant moved the prime mover further to the right in his traffic lane.

The plaintiff drove the Camry forward leaving the give way line. She intended making a right hand turn so as to join the traffic travelling along the south bound lane of the highway. At this time, the speed of the Camry was approximately 5-10 km/h.

Before the plaintiff stopped at the give way line, the defendant saw that her head was facing to the left. At that time, the Camry was about two car lengths from the give way line. The defendant first observed the Camry when it was approaching the give way line. After she left the give way line, the plaintiff turned her head to the right.

Both experts agreed that had the plaintiff looked to her right before entering into the intersection, the prime mover would have been visible to her at a distance of 150 metres and for a time in excess of 7.5 to 8 seconds. I make findings of fact in accordance with this agreement.

When the Camry moved off, the defendant immediately braked heavily by standing on the brake pedal with his right foot and disengaged the gearing from the engine by putting his left foot on the clutch. As he braked the prime mover, he reached up with his right hand to a cord hanging from the upper dash board of the truck, pulling on the air horns.

The Camry had proceeded forward across the northbound traffic lane, then stopped, so that the front of the Camry was just over the centre lines of the highway. Most of the Camry was then in the path of the prime mover. When the collision occurred, the Camry was stationary. The prime mover’s speed at the time of impact was about 32 to 34 km/h.

After the collision between the two vehicles, the experts agreed in their oral testimony that the prime mover continued in a northerly direction for 11 to 13 metres. The Camry was pushed ahead of the prime mover, before both vehicles came to rest. When emergency vehicles arrived, the defendant reversed the prime mover two to three metres to enable access to the driver’s side door of the plaintiff’s vehicle. The skidding distance to rest of the prime mover was 43 metres.

During submissions, Mr Barry directed my attention to what was said by the High Court of Australia in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at [6] (Backwick C.J, McTiernan, Kitto, Taylor and Owen JJ):

It has, however, not been the defendant’s case that the plaintiff’s obligation to give way to vehicles travelling upon the highway relieved him of a duty to take reasonable care. The defendant contends that in all the circumstances he did not breach the duty to take reasonable care that he owed to the plaintiff.

In Warth v Lafsky [2014] NSWCA 94; (2014) 66 MVR 445 at [55], (McColl JA with whom Preston CJ of LEC and Tobias AJA agreed) quoted Meagher JA’s helpful summary in Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1, of the obligation of a driver to take reasonable care:

To these principles, I would add that the liability of a motorist is not an absolute one: T and X Company Pty Ltd v Chivas (“the T and X Case”) [2014] NSWCA 235; (2014) 67 MVR 297 at [11] (Beazley P).

One of the submissions made by Mr Barry was that this court was not bound by the decisions of the New South Wales Court of Appeal. With that submission I disagree. I am obliged to follow the decisions of intermediate Courts of Appeal in Australian jurisdictions other than Western Australia in accordance with the principles enunciated in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 and Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].

The question for me is whether the defendant was exercising reasonable care in the circumstances as they presented to him. Under s 5B(1)(c) CLA, the question is to be answered by reference to what a reasonable person in the defendant’s position would have done by taking precautions against a foreseeable risk of harm to the plaintiff.

In cross-examination Mr Stuart Smith was questioned about the defendant’s evidence at page 30, line 37 of the transcript that “when the car started to roll forward, I at that time immediately applied the brakes as hard as I could.” The evidence was (T148 49-50; T1491-3):

When the Camry moved off the give way line, the risk of harm to the plaintiff was foreseeable and not insignificant. What precautions would a reasonable person in the defendant’s position have taken against the risk of harm? In my view, a reasonable driver would have immediately braked and sounded the horn. This is what the defendant did. He also disengaged the gearing. I am not satisfied on the balance of probabilities that after the Camry moved off the give way line, the defendant breached the duty of care that he owed to the plaintiff.

However, the plaintiff’s duty of care is not confined to the events after the Camry left the give way line. The defendant had observed the Camry approaching the give way line quickly, braking late, coming to a stop with the front bonnet and front wheels over the give way line. When the Camry was about two car lengths from the give way line, the defendant saw that the plaintiff’s head was facing to the left. She did not turn her head to the right until after she left the give way line.

Having seen the plaintiff approach the give way line in this way, the risk that she might drive out onto the highway without looking to her right was foreseeable. Whilst a driver is not required to know or predict every event which happens in the vicinity of his vehicle, in this case the defendant’s attention was focused on the plaintiff due to the manner in which she had approached the intersection. In these circumstances, the risk could not be dismissed as being insignificant nor did the defendant consider that it could not happen. He took his foot off the accelerator and put it over the brakes, where it was just touching but not depressing the brake pedal. He moved the prime mover further to the right in his traffic lane. It is reasonable to infer on the balance of probabilities that when the defendant took his foot off the accelerator, the speed of the prime mover reduced.

What precautions would a reasonable driver in the defendant’s position have taken? This question is to be addressed prospectively and liability is not absolute.

Having seen the manner of the plaintiff’s approach to the give way line and that her head was facing to the left, a reasonable driver in the defendant’s position would have done more to avoid the risk of harm than the precautions taken by the defendant. I am satisfied on the balance of probabilities that a reasonable driver would have sounded the prime mover’s horn to alert her to his vehicle’s oncoming presence. In failing to take this precaution, the defendant breached his duty of care to the plaintiff.

Mr Barry conceded that the reduction for contributory negligence in this case would be at least 50%. Mr Barry said that he made this concession notwithstanding that the defendant was driving “a very large and very heavy vehicle capable of inflicting extraordinary damage in a collision. And the plaintiff was driving a very small vehicle” (T225 28-30).

Mr Rewell submitted that the assessment of the plaintiff’s contributory negligence must be at the highest end of the range. He argued that “her conduct in driving onto a highway, oblivious to the near approach of a very large vehicle, without ensuring that she could actually enter the southbound traffic lane, beggars belief” (DWS 119). Mr Rewell contended that the degree to which the defendant’s conduct fell short of the standard of care required of him was “very small indeed” and the plaintiff’s contributory negligence “should be assessed at 85% and no less” (DWS 120-121).

Mr Rewell drew my attention to Basten JA’s consideration of contributory negligence in the T and X Case and submitted that the conventional thinking that the driver of the more dangerous vehicle bears some weightier duty has been set aside.

In Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 294 ALR 315, the Court of Appeal of Western Australia gave a detailed consideration of s 5K CLA (WA). The primary issue in that appeal which does not apply to the case before me, was the extent to which the appellant’s disabilities were to be taken into account in assessing whether he failed to take reasonable care for his own safety. The court (Martin CJ, Mclure P and Murphy JA) confirmed that the test of contributory negligence is an objective one. Murphy JA said at [372]-[373]:

In the T and X Case, at [54] (Basten JA with whom Barrett JA agreed) makes the following observations about the relevance of the capacity of a vehicle to cause greater damage when assessing contributory negligence under s 5R(2) CLA (NSW) which is in the same terms as s 5K CLA (WA):

The making of an apportionment once contributory negligence is found, involves a comparison both of the culpability that is the degree of departure from the standard of care of the reasonable person, and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 533; Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 294 ALR 315 at [316]; Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 at [80].

After stopping her vehicle over the give way line, the plaintiff proceeded onto the highway without looking to her right. If she had looked, the prime mover would have been visible to her at a distance of 150 metres and for a time in excess of 7.5 to 8 seconds. The plaintiff was obliged to give way to traffic travelling in either direction on the highway. The traffic in the southbound lane was hardly moving and was “bumper” to “bumper”. In these circumstances, by proceeding onto the highway the plaintiff was grossly negligent and endangered the driver of the prime mover and the drivers on the highway who were travelling south. In these circumstances, I give little weight to the fact that the defendant was driving the heavier vehicle. A reasonable driver in the position of the plaintiff would not have proceeded onto the highway and would have remained at the give way line.

The plaintiff’s degree of departure from the standard of care of the reasonable person was very high and was the prime reason for the collision between the Camry and the prime mover, whereas the failure by the defendant to sound the horns was a slight departure from the standard of care of the reasonable person when all of his conduct that includes taking his foot off the accelerator and putting it over the brakes, moving the vehicle further to the right, immediately braking heavily, disengaging the gearing and sounding the air horns when the Camry moved off from the give way line is considered in combination. I assess the plaintiff’s contributory negligence at 80%.

I make the following order:

I make the following orders as to submissions on fund management fees and costs: