Contor v Bickey & Anor [2016] QSC 91

SUPREME COURT OF QUEENSLAND CITATION: Contor v Bickey & Anor [2016] QSC 91 PARTIES: IAN CHEYNNE CONTOR (Plaintiff) v VICKY-ANN JOYCE BICKEY (First Defendant) and ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) (Second Defendant) FILE NO: S33 of 2015 DIVISION: Trial PROCEEDING: Claim ORIGINATING COURT: Mackay DELIVERED ON: 27 April 2016 DELIVERED AT: Townsville HEARING DATE: 4 March 2016 JUDGE: North J ORDER: 1. Judgement for the defendants against the plaintiff. 2. That within 14 days of the publication of these reasons the parties are to file and serve written submissions upon the issue of costs. 3. That in the event no party files submissions upon costs the order be: (a) The plaintiff pay the second defendant’s costs of and incidental to the action to be assessed on the standard basis, such costs to include reserved costs if any. -- 1 of 21 -- 2 CATCHWORDS: TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK OUT – CAUSATION – CONTRIBUTORY NEGLIGENCE - INTOXICATION LEGISLATION Civil Liability Act 2003 (Qld) CASES Chapman v Hearse (1961) 106 CLR 112 Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) (1990) 169 CLR 279 Hammond v Pascoe & Brisbane City Council [1992] QCA 380 Imbree v McNeilly (2008) 236 CLR 510 March v E & M H Stramore Pty Ltd & Anor (1990-1991) 171 CLR 506 Pennington v Norris (1956) 96 CLR 10 . Prodrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 529 Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431 Wynebergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 COUNSEL: P Cullinane for the Plaintiff M Liddy for the Defendants SOLICITORS: Macrossan and Amiet for the Plaintiff McInnes Wilson Lawyers for the Defendants [1] The plaintiff, a motor cycle rider, sustained severe injuries when the motor cycle he was riding collided with a Holden Commodore sedan driven by the first defendant. Among the injuries he sustained was a severe injury to his right lower leg resulting in its subsequent amputation. The parties have settled issues relating to the assessment of the quantum of damages suffered by the plaintiff at $800,000.00. Liability is in issue. [2] In his amended statement of claim the plaintiff alleges:1 “5. At approximately 7.15pm on 5 October 2012 at Coningsby near Mackay in the State of Queensland, the Plaintiff, as he rode the motorbike in a northerly direction on the Bruce Highway performed a 1 Filed 26 October 2015, document 8. -- 2 of 21 -- 3 right hand turn into Kochs Road and then proceeded in a southerly direction on the Bruce Highway for a short distance before coming to a stop to the left of the fog line on the Bruce Highway after which time he did the following:- (a) Looked at his acquaintance Norton George Watson who was stopped and attending to his stationary motorbike on the opposite side of the Bruce Highway directly opposite to the Plaintiff at which time the Plaintiff received an indication from Norton George Watson by a “thumbs up” signal that indicated to the Plaintiff that Norton George Watson was good; (b) Turned on his right indicator; (c) Placed the motorbike into first gear; (d) As well as having looked straight ahead to make sure there was no traffic in the northbound carriageway, and determining there was no traffic to prevent him entering that carriageway, the Plaintiff on two occasions looked behind him for traffic coming along the southbound carriageway of the Bruce Highway when he saw what he thought was dull headlights of a motor vehicle travelling in the southbound lane but at a distance from him that he considered safe to execute a u-turn manoeuvre to cross over the southbound carriageway of the Bruce Highway and recommence travelling in the northbound lane of the Bruce Highway; (e) Commenced to execute a u-turn manoeuvre at which time the Holden Commodore Sedan driven by the First Defendant travelling in the southbound carriageway of the Bruce Highway collided with the Plaintiff (“the collision”). … 7. The aforesaid collision and injuries were caused by the negligence of the First Defendant particulars whereof are as follows:- (a) Driving at a speed in excess of 70 to 80 kilometres per hour which was excessive in the circumstances; (b) Failing to stop, slow down, steer clear or change direction of the Holden Commodore Sedan when a reasonably prudent driver would have done so to avoid the collision; -- 3 of 21 -- 4 (c) Assuming wrongly that the Plaintiff who was travelling in front of the First Defendant was not going to attempt to re- enter the southbound carriageway in front of the First Defendant; (d) Failing to keep any or any proper lookout; (e) Driving without due care and attention; and (f) Driving the Holden Commodore Sedan when it was not in a roadworthy state by reason of a non-operational right side front park light as well as non-operational left side low beam and inner high beam lights.” [3] To this the defendants pleaded:2 “6. The Defendants deny:- (a) The allegations within paragraph 5 and 7 of the Statement of Claim which are untrue in the circumstances hereinafter particularised in 7; (b) The accident was caused by the negligence of the First Defendant whether in the manner or in the particulars alleged within the Plaintiff’s Statement of Claim or at all as such allegations are untrue in fact and in law in the premises hereinafter pleaded; (c) That at no time did the Plaintiff look behind him to check if it was safe to complete the presumed U-turn; 7. The Defendants say:- (a) That, at the material time:- (i) prior to the material time, the Plaintiff had conducted a U- turn on the Bruce Highway in the area of Kochs Road; (ii) That, when progressing along the Bruce Highway, the Plaintiff rode the motor bike on the left-hand side of the fog line; (iii) That, when the First Defendant approached the Plaintiff he was to the left hand side of the fog line; 2 Amended defence filed 4 January 2016, document 9. -- 4 of 21 -- 5 (iv) Without warning or indication the Plaintiff turned into the path of the First Defendant vehicle causing a collision to occur; (b) That, at the material time, the Plaintiff was under the influence of alcohol; (c) That the Holden Commodore sedan driven by the First Defendant was roadworthy and non-defective and had headlights which were operational and working at all material times and did not contribute to the incident occurring; (d) The accident was caused, or, alternatively, contributed to by the negligence of the Plaintiff, particulars whereof are as follows:- (i) Failing to keep any or any proper lookout; (ii) Riding the said motor bike in a manner not conducive with the road rules; (iii) Failing to stop, slow down or steer clear of the said Holden Commodore sedan when a reasonable and prudent rider would have done so; (iv) Failing to maintain any or any adequate control over the said motor bike; (v) Failing to give the First Defendant any or any proper or adequate or timely warning of the manoeuver of the said motor bike and its path of travel when a reasonably prudent rider would have done so; (vi) Causing, permitting or allowing the said motor bike to travel upon and/or remain upon the roadway when a reasonably prudent rider would not have done so; (vii) Causing, permitting or allowing the said motor bike to cross the fog line into the path of the Holden Commodore sedan when a reasonably prudent rider would not have done so; (viii) Operating the motor bike under the influence of alcohol and whilst intoxicated under the meaning of s 47 of the Civil Liability Act 2003 (Qld):- (A) Failing to give way to the Holden Commodore sedan which had the right of way at all times material; -- 5 of 21 -- 6 (B) Riding without any due care or attention;” [4] At the commencement of the trial in his opening, counsel for the plaintiff told me that it was common ground between the parties:  The collision occurred at approximately 7.15 p.m. on 5 October 2012 on the Bruce Highway just north of Coningsby which is north of Mackay.  The plaintiff was the rider or driver of the motor cycle referred to in the statement of claim.  The first defendant was the driver of the vehicle referred to in the pleadings.  Where the accident happened at the time of the accident it was dark, there was no natural light or that it was very limited.  There was no street lighting at or near the scene.  The plaintiff subsequently underwent a blood alcohol test which revealed that his blood alcohol reading was in excess of the legal limit and that a toxicologist would give evidence that at the relevant time his blood alcohol reading would have been 0.13%.  The first defendant driver was not under the influence of liquor.  The plaintiff had been travelling in a northerly direction on the Bruce Highway.  He then executed a U-turn to travel in a southerly direction back towards his motor cycle companion, Watson, who was stopped on the left hand side of the northbound lane.  The first defendant was driving her vehicle in a southerly direction in the southbound lane towards the plaintiff.  The plaintiff pulled into the southbound lane to do a U-turn to enter the northbound lane.  A collision occurred in the southbound lane of the highway. -- 6 of 21 -- 7 I was also informed that the posted speed limit on the highway where the accident happened was 100 kilometres per hour and that at the time of the offence the weather was fine and dry. [5] A number of documents and photographs were tendered into evidence and four witnesses were called and cross-examined. It is convenient if I refer to some of the documentary evidence before summarising the evidence of the witnesses. [6] The plaintiff identified three photographs.3 Exhibit 1 is a photograph of the Bruce Highway (taken from close to the eastern side of the road surface) as it would appear during daylight to a vehicle travelling in a southerly direction towards Coningsby and on to Mackay. The plaintiff said that the service station at Coningsby can be seen in the photograph in the distance. Exhibit 2 is a further photograph of the highway again looking south (closer to where the accident occurred) and showing the highway as it would appear to the driver of a vehicle travelling towards Coningsby and Mackay. The plaintiff marked with an X on the photograph approximately where he says he stopped before commencing a manoeuvre leading to the collision and his injury. Exhibit 3 is a photograph of the highway looking to the north though taken from the eastern side of the highway. The plaintiff marked on that photograph approximately where he says he was stopped before he performed the subject manoeuvre.4 [7] Exhibit 5 is a report from Dr Michael Robertson who is a pharmacologist and forensic toxicologist. On the basis of the assumed facts set out at page 3 of his report, he expressed certain conclusions with respect to the plaintiff’s blood alcohol reading and capacities. Relevantly Dr Robertson said:5 “b. at the calculated blood alcohol concentration of approximately 0.13%, it is likely that Mr Contor was experiencing one or more of: increased self-confidence with reduced inhibitions; an increase in reaction time and a reduction of attention and critical judgement; impaired perception, memory and balance in addition to a deceased sense of care and caution and an increase in risk-taking behaviour. c. The affect on driving performance in an individual with a BAC at or about 0.13% is well established and includes: increased self-confidence with decreased inhibitions and a reduction of attention; impairment of judgment and perception and an increase in reaction time; increased sensory-motor impairment with a deceased sense of care and caution together with an increase in risk taking and associated crash risk.” (Footnote omitted and emphasis added). 3 Exhibits 1, 2 and 3. 4 All photographs were taken during the day. No photographs taken at night were tendered. 5 Exhibit 5, paragraph 2(b) and (c). -- 7 of 21 -- 8 [8] A statement of inspection by a vehicle inspection officer employed by the Queensland Police Service6 was tendered. In it the vehicle inspector says that both the motor cycle and the sedan were in a satisfactory mechanical condition and that he found no mechanical defects which may have contributed to the cause of the motor vehicle accident. The inspector did note that an inspection of the electrical system of the Holden Commodore revealed that the right side front park light and left side low beam and inner high beam lights were not operating. Both the first defendant and her partner, who was a passenger in the car and is a mechanic, gave unchallenged evidence that the lights of the Commodore were operating satisfactorily on the evening7. [9] The plaintiff was cross-examined about a Notice of Accident form that he completed sometime after the accident as part of his claim for damages.8 In the form in a box which asked, “Describe what happened,” the following has been typed in: “My last memory before the accident was riding my motorcycle north on the Bruce Highway having just left the petrol station at Coningsby. One of my fellow riders, Norton Watson, who was in front of me had pulled off left to the highway and stopped. I remember executing a turn to travel in the opposite direction on the highway with the intention of riding back to where Norton was. I don’t remember anything after that until lying on the ground in the aftermath of the accident with Norton Watson talking to me.” The Evidence of the Witnesses [10] On the day in question the plaintiff attended a funeral in North Mackay after which, with other members of the Indigenous Riders Motorcycle Club he attended a wake held at the North Leagues Club. He recalled arriving at about 3 o’clock and staying for two to two and a half hours. During that time he drank bourbon and Coke from a glass consuming probably about four. One of the other members of the club present was Norton Watson who was drinking Hahn light beer from stubbies. They were not drinking together so he was unable to give any estimate of how much Watson drank but he said that Watson did not appear to be affected by alcohol. After the wake members of the motorcycle club went to the club’s clubhouse situated in Glenella. At the clubhouse the plaintiff again drank bourbon and Coke. He recalled having two or three, again drinking spirits mixed with Coca-Cola in a glass. He gave evidence that Watson was drinking Hahn light beer from stubbies at the clubhouse. The plaintiff said that it was “maybe” six o’clock when they left the clubhouse with the intention to travel north to his home at Mt Martin which is near Mirani, north of Mackay. The plaintiff said he was travelling in a group of four with Norton and two others. Each motor cyclist was travelling alone without pillion passengers. When asked how he felt he said he “felt good”9 and he said that he did not 6 Statement marked “Stewart Taylor” dated 6 November 2015, exhibit 6. 7 Neither were cross-examined upon this nor was there any other challenge to it. 8 Notice of Accident claim form dated 12/12/2012, exhibit 4. 9 T 1-12 l 17. -- 8 of 21 -- 9 feel affected by alcohol.10 He said that the group stopped at a service station at Coningsby to fuel up. After that the group continued the journey north when he noticed that Watson pulled over to the left side of the road which is the left of the northbound lane, whereupon he, the plaintiff, did a U-turn to go back to see if Watson was all right. After performing the U-turn he was on the outside of the southbound lane and approximately 50 to 100 metres past Watson. He then proceeded to travel slowly southbound to a point to the left of the southbound lane opposite to where Watson was stopped on the left of the northbound lane. When he arrived at the point opposite to Watson and his bike he observed that Watson was off his bike looking at the motor. Then after receiving a “thumbs up” from Watson he said that he activated his right indicator and looked over his shoulder to see if traffic was travelling in a northerly direction11 and then looked over his right shoulder twice to the lane with the southbound traffic.12 He saw a car in the distance.13 Specifically he saw “a dull set of headlights”14 but was unable to gain an impression or to judge the distance, offering as an explanation that the headlights were dull.15 He said that he then looked in the opposite direction, towards the traffic that would have been travelling in the northbound lane and he went to execute a movement to head north16 whereupon “once I went to execute to move into the southbound lane to go into the northbound lane” the accident occurred.17 When asked how far into the southbound lane he was when this happened he said he thought “it was just over the fog line … just past the fog line.”18 He described his speed as not very fast, the bike was in first gear so he was “just rolling”.19 When asked he said that probably the first half of his motorcycle had entered the southbound lane when the collision occurred.20 When cross-examined he said he could recall that where he executed the U-turn on the highway before travelling south he did so at a point where a road entered the highway from the right (for northbound traffic).21 When pressed with his statement22 and how it was that his evidence was more detailed than he could provide at the time he made the statement he said that subsequent to making that statement he had remembered more detail.23 He confirmed that his recollection was that he executed the U-turn and then progressed south on the left hand side of what is described as “the fog line” shown in the photographs and that he travelled at a relatively slow speed but that he came to a stop before he commenced the turn into the southbound lane with the intention of travelling into the northbound lane.24 He could recall stopping and putting his feet on the ground before commencing the manoeuvre into the southbound lane.25 He was stopped on the opposite side of the road from Norton for three to four minutes before commencing the manoeuvre,26 while he wasn’t actually talking to him, Norton was looking at his bike and they were on opposite sides of the 10 T 1-12 l 25. 11 T 1–15 l 1-5. 12 T1-15 l 14. 13 T1-15 l 14. 14 T1-15 l 20 & 22. 15 T1-15 l 27 & 30. 16 T1-15 l 35. 17 T1-15 l 40. 18 T1-15 l 45. 19 T1-16 l 5. 20 T1-19 l 40. 21 T1-22 l 20 ff. 22 Exhibit 4, see paragraph [9] above. 23 T1-23 l 45. 24 T1-24 l 1-11. 25 T1-24 l 25. 26 T1-24 l 35. -- 9 of 21 -- 10 highway. He was waiting for instructions from Norton to see “how he was with his bike”27 and during this he was sitting stationery on his bike.28 He said that he sat on the side of the road opposite Norton for three to four minutes with the right turn indicator of his motor cycle activated.29 When pressed in cross-examination he reiterated that he was unsure, due to the dull headlights, how far away the vehicle he observed was, apparently travelling in the southbound lane towards him.30 [11] Mr Norton Watson was called in the plaintiff’s case. He attended the funeral and the wake that the plaintiff spoke of. He was not in company with the plaintiff at the wake but he did see him drinking alcohol from a glass which he presumed was bourbon and Coke. He was drinking Hahn light beer from stubbies. He had “probably four” stubbies at the wake and he didn’t observe the plaintiff to be displaying any behaviour suggesting he was affected by alcohol.31 After the wake a number moved on to the Indigenous Riders’ clubhouse. He recalled leaving the wake just on dark. He was at the clubhouse for about an hour and a half and again was drinking Hahn light beer. He was not in company with the plaintiff for the entire time at the clubhouse but he observed him drinking bourbon and Coke. He could not say how much the plaintiff drank but he did not appear to be affected by alcohol. He recalled leaving the clubhouse with three others including the plaintiff, all of whom were intending to travel north on the highway. He recalled a plan for the group to pull in at the Leap Hotel and then go on to the plaintiff’s place but he did not make it as far as the Leap Hotel. The four cyclists stopped at the Congingsby service station and then left at the same time32 and continued north. He travelled only about 200 to 300 metres before he had mechanical difficulties and he pulled off the highway.33 He pulled off onto the side of the shoulder of the road on the outside of the fog line and he dismounted from his bike. He then proceeded to crouch down and attend to his motorcycle.34 He did not see the plaintiff straight away, he did not see the plaintiff returning but at some point he looked over the top of his bike and saw the plaintiff across the highway.35 There was no conversation between the two but he observed the plaintiff had pulled up on the other side of the highway and had come to a stop.36 He looked at the plaintiff and observed him for a couple of seconds and Mr Watson said he looked up the road towards the north but then he “put [his] head down to start working on [his] bike again and … I heard a thud and looked over … and I [saw] Ian sliding along the road in front of a car.”37 Mr Watson said he noticed the right hand indicators of the plaintiff’s bike were activated38 but he did not see or hear the vehicle prior to the collision nor did he see any headlights prior to the collision.39 When cross-examined Mr Watson said that he did not observe the plaintiff approach him on the other side of the highway because he was looking down at his bike but that when he did observe the plaintiff, for five to ten seconds, he appeared to have come to a complete stop. After observing the 27 T1-25 l 7. 28 T1-25 l 14. 29 T1-25 l 45. 30 T1-26 l 27-37. 31 T1-32 l 11. 32 T1-33 l 31. 33 T1-3 l 33 - 34 l 4. 34 T1-34 l 15. 35 T-34 l 33. 36 T1-34 l 40-45. 37 T1-35 l 15. 38 T1-35 l 23. 39 T1-35 l 35. -- 10 of 21 -- 11 plaintiff he then put his head down to attend to his motorbike.40 Mr Watson confirmed that he did look at the highway to the north but he didn’t see any approaching car or any headlights.41 [12] The first defendant, Ms Bickey, gave evidence that she and her husband (Mr Adam Coulahan) left their home at the time at Hampden, north of Mackay, to attend a barbecue at their cousins. The journey was to take 10 to 15 minutes in part travelling south on the Bruce Highway. The car was operating normally, it had been owned for a short period42 and that on the evening in question the indicators and lights including brake lights were operating normally. As they travelled south they passed through the landmark known as “The Leap”, her car’s lights were on high beam then, and sometimes on low beam as the situation required. She was familiar with the road and had driven it many times including at night. Her first relevant recollection concerning the accident was a motorbike performing a U-turn in front of her. She had observed other motorbikes proceeding north on the highway as she travelled south but the motorbike in question had been heading towards her and then did a U-turn into a road that was off on the other side and pulled over onto the shoulder.43 After it performed the U-turn it headed south on the shoulder to the left of the white line on the highway. She was unable to estimate its speed but it wasn’t going fast. She was able to see that the vehicle that had performed the U-turn was a motorbike and she could make out that there was a rider on the motorbike.44 When asked at what distance she was from the motorbike when it performed the manoeuvre she said: “Maybe like 100 metres or 200 metres”.45 In evidence she said that after performing the U-turn the motorbike crawled up the side of the road and she estimated her speed to be between 70 and 80 kilometres per hour. She had just left roadworks where she had been required to slow right down.46 She could make out a motorbike stopped on the right hand side facing north on the highway. It occurred to her that that motorbike might have broken down47 and she inferred that the motorcycle that had performed the U-turn might have been going back to join the stopped motorcycle.48 She continued to gain on the motorcycle and then as she approached it, it pulled out without any indication.49 She did not see him look back towards her.50 In cross-examination she was reminded of a statement that she gave to police on 7 October 2012 when she had estimated her speed after leaving the roadworks at between 80 and 90 kilometres per hour. She did not see the motorcycle ultimately involved in the accident ever come to a stop, she recalled that he crawled51 and she did not see his legs come down onto the ground as if he was stopping.52 She confirmed that it was in her mind that the motorcyclist who had executed the U-turn was travelling back up the left hand side of the highway intending to return to the motorbike that was stopped on the other side of the highway and so it was possible 40 T1-36 l 44. 41 T1-38 l 10. 42 “Maybe not even two months”. T1-43 l 7. 43 T1-44 l 7. 44 T1-44 l 40. 45 T1-44 l 16. 46 T1-45 l 30. 47 T1-46 l 22. 48 T1-46 l 30. 49 T1-46 l 40. 50 T1-46 l 45. 51 T1-48 l 33. 52 T1-48 l 38. -- 11 of 21 -- 12 that that motorbike might go across the highway53 though she added that she assumed that this manoeuvre would occur after she had passed through.54 She confirmed that it was dark and there was no street lighting, that the lights of her car were on and that the lights of the motorbike on the left was on. She did not sound her horn and although she had initially slowed down when she had seen the motorbike perform the manoeuvre because she believed he was waiting for her to pass, she had picked up her speed again to something like 90 kilometres an hour. She did not see an indicator activated on the motorbike.55 She said that only the front part of the motorbike had entered the roadway at the time when the collision occurred.56 She confirmed that the damage to her vehicle was on the front left side and she was asked questions of her assessment had she been travelling more slowly or had she braked: “If you’d been travelling at a lower speed, you would’ve been able to avoid hitting him, wouldn’t you?---If I was doing maybe 20 ks – 40 ks. Well, if you’d been braking or had braked or were in the process of braking as he pulled out slightly into your lane of traffic at low speed, you would’ve been in a position to avoid him, wouldn’t you?---I don’t know. I don’t believe so – that he was that close for me to stop at all. But you would’ve been travelling at a slower pace is what I’m suggesting. If you had braked as you approached him or were braking, you would’ve been able to avoid hitting, him, wouldn’t you?---Yeah, maybe.”57 [13] The first defendant’s partner, Adam Coulahan, gave evidence that he was the front seat passenger in the vehicle driven by the first defendant. A qualified diesel fitter by trade, he said that the sedan was in pretty good condition. It had been owned for a short period58 and when it had been acquired he had inspected the vehicle checking the brakes, the oil and the whole vehicle including the lights. There were no problems with the lights on the vehicle and they were working that evening.59 On the evening in question he said that they were travelling in a southerly direction on the highway and he recalled passing a group of motorcyclists who were heading north. He could recall roadworks on the highway which required the car to slow down but he could not recall the precise posted speed at the roadworks.60 Mr Coulahan said that his first observation of the motorbike ultimately involved in the collision was that it was coming towards the Commodore and did a U-turn in front of it.61 When asked how far away the car was from the motorbike when it executed the U-turn he said “about three car lengths maybe”.62 The U-turn occurred where Kochs Road meets the highway from the left in the direction the Commodore was travelling and after completing the U-turn the motorbike travelled up the shoulder of the highway along the fog line in a southerly 53 T1-49 l 33-37. 54 T1-49 l 37. 55 T1-50 l 1-23. 56 T1-51 l 1. 57 T1-51 l 14-24. 58 T1-53 l 34. 59 T1-53 l 35 - 54 l 3. 60 T1-54 l 33. 61 T1-54 l 35. 62 T1-54 l 44. -- 12 of 21 -- 13 direction.63 He could not say at what speed the Commodore was travelling but he said that he told the first defendant “to watch him” and he thought she started slowing down.64 As the Commodore approached the motorcycle he seemed to be braking and he saw the feet of the motorcyclist coming off the bike to touch the ground though he could not remember seeing a brake light.65 He said that he kept his eyes on the motorcycle because he “was a bit worried about the way he was riding”.66 When asked what happened after he saw the cyclist’s feet come off the bike he said: “I assumed he was going to stop, and I thought everything was alright, and the next thing I know, he’s right in front of us….”67 He did not see any indication from the motorbike before the manoeuvre nor any hand signal. When cross-examined Mr Coulahan admitted that he did not see any other vehicles near the scene of the accident save for the motorcycle involved in the collision and that he did not see a motorbike on the other side of the highway until after the accident.68 He said that he could recall the first defendant braked initially when the motorcyclist performed the U-turn in front of the Commodore or slowed down69 but that he could not recall whether the car sped up again, rather his recollection was that the car maintained speed because he “kept telling her to keep an eye on him”.70 He agreed that only the front of the motorbike had entered into the southbound lane when it was struck71 and that the motorbike had been travelling at a very slow speed72 and although he saw the cyclist put his feet on the ground as if he was going to stop, he did not see the motorbike come to a complete stop.73 Findings on the evidence [14] The accident happened at night the weather was fine and dry and the road reasonably straight for a considerable distance. The photographs demonstrate that a motorcyclist or the driver of a motor vehicle approaching the approximate place on the highway where the collision occurred would have had uninterrupted visibility for some distance to the north or the south depending on the direction of travel. Motor vehicles or motorcycles with their lights activated and functioning would have been recognisable to oncoming traffic. There were no other vehicles moving on the highway close to the scene that might have distracted any rider or driver or any of the witnesses as the Holden Commodore approached the motorcycle driven by the plaintiff, either when they were approaching one another travelling in opposite directions or at the time when the sedan approached the motorcycle after it had performed the first U-turn and started slowly moving on the left of the fog line in a southerly direction. 63 T1-55 l 15. 64 T1-55 l 20. 65 T1-55 l 35. 66 T1-56 l 1. 67 T1-56 l 8-10 68 T1-57 l 15. 69 T1-58 l 25. 70 T1-58 l 45. 71 T1-59 l 18. 72 T1-59 l 25. 73 T1-59 l 30. -- 13 of 21 -- 14 [15] Of the four witnesses who gave evidence, one, the plaintiff, was significantly affected by alcohol74 as the evidence of the report from Dr Robertson75 demonstrates.76 Another witness, Mr Watson, was paying more attention to the mechanical problems affecting his motorcycle, on his own account he only took a brief and limited opportunity to observe the plaintiff. If he did look up the highway to the north it must have been a fleeting glance and not a particularly attentive one because he said he did not see any approaching car or any headlights.77 As I have found, the headlights of the Commodore were operating with the consequence they should have been plain to see. [16] The plaintiff’s evidence that he saw a dull set of headlights should be treated with some caution. The unchallenged evidence of the first defendant and her husband, supported by the mechanical report78 satisfies me that the headlights of the Commodore were illuminated and visible. Rather the plaintiff’s observation says more about his care and attention, whether he took proper opportunity to judge whether there was any approaching traffic before he commenced the manoeuvre leading to the collision in which he was injured. [17] There are other aspects of the plaintiff’s evidence that raise concerns about the reliability of his evidence. In the statement made in December 2012 as part of his claim for damages under the relevant legislation, he said that he could remember executing a turn to travel in the opposite direction on the highway with the intention of riding back to where Norton was but that he could not remember anything after that until lying on the ground in the aftermath.79 While it is possible that the plaintiff’s memory has improved in the years since the accident it seems remarkable that he has had such a significant recovery of memory. In a number of respects the plaintiff’s evidence was unlikely; he said that Watson broke down some 5 to 10 kilometres beyond the service station where they refuelled80 and that he was on the side of the highway opposite to Watson for some three to four minutes before commencing the ill-fated second U-turn.81 The first estimate conflicts with the evidence of Watson and seems to be at odds with what can be seen from the photograph, exhibit 1. The second estimate conflicts with the evidence of both the first defendant and her husband and seems at odds with the evidence of Mr Watson. [18] While the plaintiff, when he gave evidence, appeared to be attempting to give a frank and honest account of things and notwithstanding the considerable sympathy I have for him because of the serious injuries he sustained, a combination of factors lead me to the conclusion that his evidence is a product of reconstruction with the consequence that he is not a reliable witness concerning the circumstances of the accident. These factors in combination are the extent of his consumption of alcohol and intoxication and its likely effect upon his cognitive faculties, the prior statement saying that after he executed the 74 This should not be interpreted as a finding or a suggestion that the plaintiff was “incapable of exercising effective control” of the motorcycle within s 47(5)(d) of the Civil Liability Act 2003. My discussion of s 47 and my findings in relation to negligence and contributory negligence are set out below. 75 Exhibit 5. 76 See particularly the extracts quoted at [7] above. 77 T1-38 l 10. 78 Exhibit 6. 79 See [9] above and exhibit 4. 80 T1-13 l 12. 81 T1-25 l 45. -- 14 of 21 -- 15 U-turn he had no recollection of the circumstances of the accident and aspects of his evidence that appear to be unlikely and contrary to the evidence of others or other available evidence. [19] The first defendant seemed to have a reliable memory of events and also impressed as a person who was prepared when propositions were put to her to be open, making appropriate concessions against her interest.82 Of the four witnesses who were called she was the most impressive and as it seemed to me was the person who made the most of her opportunity to see what was happening and consequently accurately recall events. She was not under the effects of any alcohol, contrary to the plaintiff and was not shown to have had a defective memory or unreliable recollection of events. Contrary to Mr Watson, she had a better opportunity to see the events unfolding. Mr Watson was distracted for the most part with the mechanical problems plaguing his motorcycle. The first defendant also impressed as a more reliable witness than her husband who was in the front passenger seat. Generally Mr Coulahan’s evidence was consistent with, and therefore supportive of the first defendant’s account. But his evidence was vague or uncertain83 where he gave evidence of the “educated guess” about whether the plaintiff came to a stop before commencing the ill-fated U-turn and he gave an the unlikely account, as it seems to me, that the motorcycle performed the U-turn from the northbound lane into the southbound about 3 car lengths from the sedan.84 [20] It is not possible in the state of the evidence to find what distance separated the motor vehicle and the motorcycle when the plaintiff commenced the first U-turn from the northbound lane into the southbound lane to return to Mr Watson. The first defendant and her husband saw the manoeuvre but she did not have to take evasive action. It seems likely therefore that it occurred at a distance from the oncoming motor vehicle that made it safe for the plaintiff to perform in the circumstances. The first defendant’s vehicle had by then passed through some roadworks on the highway and emerged into the open highway. As the motorcycle and the sedan converged, first before the first U- turn and then subsequently as the sedan gained upon the slowly moving motorcycle as it moved southwards to the left of the fog line on the southbound lane it is likely that the first defendant’s vehicle travelled at speeds between 70 and 90 kilometres per hour. The plaintiff’s motorcycle only had to travel a comparatively short distance to reach a position on the highway opposite to where Mr Watson was stopped. The evidence is not reliable but it may have been as short as 100 metres or a little less. Plainly the motorcycle moved at a very slow speed as the sedan gained on it. I am prepared to find on the evidence that the plaintiff stopped the motorcycle for a very short time sufficient for him and Mr Watson to exchange a glance and perhaps for the gesture that the plaintiff spoke of before the plaintiff commenced the manoeuvre leading to the accident. But I am not prepared to find that the plaintiff activated his indicator before commencing the manoeuvre into the southbound lane in front of the first defendant’s approaching motor vehicle. For the reasons I have given I prefer the evidence of the first defendant (supported as it is on this matter by Mr Coulahan) upon this issue to that of the plaintiff and Mr Watson. I have not overlooked Mr Watson’s evidence that after the collision the right turn indicator was seen to be operating85 but this does not 82 See for example her evidence quoted at the end of [13] above and that concerning speed at T1-48 l 10. 83 See for example T1-59 l 49 to 1-60 l 9. 84 T1-54 l 43. 85 T1-37 l 34. -- 15 of 21 -- 16 demonstrate to me that this observation is proof that the indicator had been activated before the turn. It is likely that any indication, if contrary to my finding it happened, occurred virtually simultaneously with commencing the manoeuvre, depriving the first defendant of any real opportunity to have warning of the manoeuvre and insufficient time to take evasive action or to brake or to slow. The circumstance that the collision occurred while the motorbike was only part way into the southbound lane suggests that the approaching car with its lights illuminated must have been very close to the motorcycle when the plaintiff commenced the manoeuvre. On the first defendant’s admission she may have been travelling between 70 and 90 kilometres per hour. I find that when the manoeuvre into the southbound lane was commenced by the plaintiff the first defendant had, by reason of the speed of the vehicle and how close it was to the motorcycle, no effective opportunity to take any step to avoid a collision. The Duty of Care, the Breach of Duty and Causation (including contributory negligence) [21] The Civil Liability Act 2003 (Qld) (CLA) contains a number of provisions that must be borne in mind and applied in the consideration of breach, causation and contributory negligence.86 But before turning to them, a number of general and uncontroversial propositions can be made. [22] Putting to one side the duty owed to a passenger or any other road user, both the plaintiff and the first defendant being persons in control of motor vehicles converging upon one another on the highway owed concurrent duties of care to the other.87 That is, to take reasonable care in the control of their respective vehicles to prevent harm to the other. The duty is not to prevent harm that is foreseeable per se but that of reasonable care88 to prevent a foreseeable risk of harm.89 In the circumstance I am considering, the risk of harm if one or both failed to exercise care was foreseeable,90 not just in the theoretical abstract, but because both could see the other vehicle or motorcycle or at the very least the lights of the other vehicle. [23] By way of an introduction, broadly speaking the determination of the plaintiff’s claim for damages involves the familiar enquiry whether the first defendant breached her duty of care to the plaintiff (and in any one of the particulars alleged in paragraph 7 of the amended statement of claim)91 which caused the collision and injury. But that enquiry, while central to the plaintiff’s claim, is only a part of a broader enquiry into whether the actions of either the plaintiff or the first defendant caused or in combination contributed to causing the collision. This broader enquiry arises because of the allegation in 86 Section 9, s 10, s 23, s 24 and s 47 are prominent. 87 This proposition is not new, it was well established before the CLA. Consider Imbree v McNeilly (2008) 236 CLR 510 at 528, [49]. 88 Consider s 9(1)(c) CLA and the response of the reasonable person posed by s 9(2). For a statement upon this issue, in an entirely different context, and in a case arising before the CLA cf Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431 in the reasons of Hayne J at [125] ff. 89 Consider s 9(1) CLA and the role reasonableness plays in the duty to take precautions against the risk of harm. 90 Indeed it was foreseeable that harm might be suffered by either driver, rider, passenger, another road user or for that matter, a rescuer cf Chapman v Hearse (1961) 106 CLR 112; March v E & M H Stramore Pty Ltd & Anor (1990-1991) 171 CLR 506. 91 See para 7 at [2] above. -- 16 of 21 -- 17 paragraph 7 of the defence92 that it was the plaintiff’s own breach of duty which caused or contributed to the collision and consequent injury. [24] Turning to the plaintiff’s claim that the first defendant’s breach caused his injuries, the facts agreed as common ground93 in light of my observations at [22] above establish that the risk of harm to the plaintiff, if the first defendant did not take precautions, was foreseeable within s 9(1)(a) and as the driver of a motor vehicle converging upon a motor cycle rider the risk was plainly not insignificant within s 9(1)(b). Thus what requires consideration is whether “a reasonable person in the position of the [first defendant] would have taken precautions” (s 9(1)(c)). In considering whether that hypothetical reasonable person would have taken precautions, consideration must be given to the matter set out in s 9(2) viz: “(a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm.” [25] Before considering those four matters in the context of the evidence I record that I have not overlooked that the term “precautions” when used in s 9 is not defined. In Banque Commerciale SA., en Liquidation v Akhil Holdings Ltd Mason CJ and Gaudron J said: “The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v Dunn; Mount Oxide Mines.”94 (Footnotes omitted) In the context of this case the “precautions” I must consider are limited to the particulars of negligence pleaded in paragraph 7 of the amended statement of claim95 which was the case the defendants were required to meet at trial. Nor I have overlooked that s 9(2) does not make the four factors (a) – (d) exhaustive. The parenthetical “among other relevant things” plainly permits a court, in any case, to have regard to relevant matters in addition to those specified in s 9(2). 92 See para 7(b) and (d) at [3] above. 93 See para [4]. 94 (1990) 169 CLR 279 at 286-287 95 See para [2] above. -- 17 of 21 -- 18 [26] The allegation in paragraph 7(f) of the statement of claim concerning the lights of the Holden Commodore sedan was not made out in light of the unchallenged evidence of the first defendant and her husband was that the motor vehicle was operating satisfactorily and that the lights were working. Nor was it suggested to the first defendant that she should have stopped her motor vehicle or steered clear of the plaintiff’s motor cycle as alleged in paragraph 7(b) of the statement of claim. It was submitted by counsel for the plaintiff that the first defendant drove at a speed excessive in the circumstances in that she ought to have been uncertain as to the intentions of the plaintiff and to have recognised the possibility that he was intending to cross the highway to where Mr Watson, was stopped. In those circumstances it was submitted that the first defendant should have slowed to a speed that would have enabled her to stop or avoid the plaintiff were he to perform that manoeuvre. It was further submitted that the circumstance that the plaintiff indicated his manoeuvre which was not seen by the first defendant suggested that the first defendant was not keeping a proper look out and in that context combined with her speed she caused the collision that occurred. [27] When cross-examined the first defendant said that she did not see the plaintiff’s motor cycle come to a stop. She did not see the plaintiff’s legs come out to the side to support himself as she would have expected had he stopped.96 But the period during which the plaintiff was stopped at the side of the road was brief,97 only long enough for a glance to be exchanged and perhaps a gesture. By this time I am persuaded that the first defendant’s vehicle was close to the plaintiff. In the circumstances of my finding that the plaintiff failed to give an indication of his intention to make a manoeuvre to enter the highway98, I am not persuaded that the first defendant’s failure to see the plaintiff come to a stop is an indication that her look out or attention was less than that expected of a driver exercising reasonable care. A driver taking reasonable care must scan eyes and look ahead, to the side and to the rear in mirrors. One cannot look only in one direction. [28] Nor does the concession by the first defendant that had she driven her motor vehicle at a slower speed she might have been able to avoid the collision with the motor cycle even if it moved onto the highway suddenly and without any significant warning99 necessarily lead to the conclusion that the first defendant ought to have driven at a slower speed. The focus must be on the obligation of reasonable care judged by the reasonable person that s 9(1) speaks of and the precautions a reasonable person would take that s 9(2) speaks of. This proposition is made clear by s 10(b) and (c). In the particular circumstances the cross-examination of counsel for the plaintiff of the first defendant quoted at [12] above begs the question. At what lower speed was it necessary for the first defendant have been driving in order to have avoided a collision with the motor cycle that moved suddenly from the side of the road onto the road surface in front of the converging motor vehicle? It will be recalled that the first defendant’s vehicle was driving on the Bruce Highway on the northern approaches to Mackay. It was night time, there was very light traffic on the roadway and, apart from the plaintiff’s motor cycle no other vehicle moving on or near the highway at the time. The speed limit posted on the highway was 100 kilometres an hour. The circumstances that were known or ought to have been known to the first defendant were that the motor cycle had performed a U-turn manoeuvre in front of her 96 See T1-48 l 35-43. 97 Refer my findings at paragraph [20] above. 98 See para [20] above. 99 Consider the first defendant’s evidence quoted at [12] above. -- 18 of 21 -- 19 vehicle in a manner that was safe some distance ahead. She knew that the headlights on her vehicle were working satisfactorily and that both the motor cyclist and she, the driver of the motor car, were in clear view of one another. It could be safely and reasonably inferred by the first defendant that the driver of the motor cycle had seen her approaching vehicle. The motor cyclist’s actions in moving very slowly to the left of the fog line, neither entering into the roadway nor indicating that intention, was consistent with the actions of a motor cyclist who was aware of a fast approaching car on the highway that was soon to overtake or pass. There was no indication to the contrary. In those circumstances for the first defendant to have slowed her vehicle substantially might have been an action to cause confusion or indecision on the part of the motor cyclist. Be that as it may, in order to have avoided the collision in the circumstances I have found the first defendant would have needed to have been travelling very slowly on the open highway at night time when the weather was fine and clear. In the circumstances I am not persuaded that a reasonable person in the position of the first defendant ought to have taken the precaution of slowing her vehicle to a speed sufficiently slow to have avoided the collision in the circumstances of the plaintiff’s manoeuvre as I have found it. I am not prepared to find that the first defendant was negligent in her driving either in driving at an excessive speed nor in driving without a proper lookout or without due care and attention. Her belief or assumption that the plaintiff was travelling on the side of the road but was not intending to attempt to re-enter the south bound highway in front of her was reasonable in the circumstances. [29] The foregoing may be sufficient to entitle the defendants to a dismissal of the plaintiff’s claim for damages. But in the circumstances of the case and in order to do justice to the submissions of the parties and the issues joined at trial I should make findings upon causation and the issue of the plaintiff’s alleged contributory negligence. [30] The collision and the plaintiff’s resultant injuries occurred in the circumstances I have found in [20] above. To have attempted the manoeuvre onto the highway in front of the first defendant’s illuminated vehicle which was close and quickly approaching suggests that the plaintiff did not keep a proper look out. It suggests he failed at the time he performed the first U-turn to return south to take a proper account of the first defendant’s vehicle, its distance or its approaching speed and then subsequently as he moved slowly in a southerly direction to the left of the fog line he failed to keep the first defendant’s vehicle under proper observation by use of his mirrors. He cannot have carefully looked to the north before he moved into the path of the car driven by the first defendant which by then must have been close. There was no indication of the fateful manoeuvre.100 In these circumstances I find that the collision between the motor cycle and the first defendant’s motor vehicle was caused not by any carelessness or want of care on the part of the first defendant but because the plaintiff failed to take care and failed to keep a proper look out and give sufficient and adequate indication of his intended manoeuvre. The evidence of Dr Robertson101 demonstrates that it is likely that at the time the plaintiff was affected by the consumption of alcohol. In the circumstances as I find them it is likely that the plaintiff’s failure to keep a look out and failure to give a timely warning of his intended manoeuvre was caused or contributed to by the effects of the plaintiff upon him of the alcohol he had consumed. 100 Recall findings and observations concerning indication at [20] above. 101 See para [7] above and Exhibit 5. -- 19 of 21 -- 20 [31] In submissions counsel for the second defendant contended that the plaintiff had breached a number of traffic regulations in the circumstances of his turn onto the highway in front of the car driven by the first defendant. I was referred to the decision of the Court of Appeal in Hammond v Pascoe & Brisbane City Council102 in the joint reasons of McPherson JA and White J where their Honours said: “It is well established that breach of a traffic regulation is no more than a piece of evidence which may establish want of care on the part of the person in breach, see Henwood v. Municipal Tramways Trust (.A.) (1938) 60 C.L.R. 438 at p.461 and Tucker v. McCann [1948] V.R. 222 at p. 225. It is plain that the driver of a vehicle executing either a U-turn or a right- hand turn in the circumstances of this case is obliged to signal his intention to all other users of the highway in sufficient time for them to take whatever action is prudent; to keep a look out for other users of the highway and to undertake the manoeuvre when it is safe to do so, ...” [32] The circumstances of the case their Honours were considering is different from that I am considering. I acknowledge that, as their Honours point out, it is not every circumstance that requires a turning driver to await the passing of following traffic before affecting a turn but their Honours in making that observation were considering a circumstance where the driver making the turn was positioned on or towards the middle of the roadway. Nevertheless their Honours’ observations I have quoted apply to the plaintiff’s management control of the motor cycle he was riding. [33] The finding that I have just made in [30] above that the plaintiff’s own failure to take care for himself was the cause of the accident in which he was injured is not a finding of contributory negligence within s 23 of the CLA which traditionally has involved the comparison of culpability, meaning the degree of departure from the standard of care of the reasonable man of the assumed tortfeasor and the assumed injured plaintiff who might be contributorily negligent, consider Pennington v Norris.103 This comparison involves an assessment of the relative importance of the acts of both in causing the damage.104 I don’t understand s 23 of the CLA to suggest otherwise. I have not overlooked s 24 of the CLA permits a reduction of 100% on account of contributory negligence if the court “considers it just and equitable so to do” which would have the consequential effect of defeating a claim for damages. This section was introduced to overcome the decision of the High Court in Wynebergen v Hoyts Corporation Pty Ltd105 which had been authority to the effect that a plaintiff’s claim could not be defeated by a successful claim of contributory negligence. In the circumstance of my finding that the first defendant was not negligent it is not necessary for me to consider s 24 of the CLA at length. I have made these observations as an introduction to some “findings” which follow concerning contributory negligence out of respect for the submissions made at trial and also in case my observations are of any assistance should there be an appeal. 102 [1992] QCA 380. 103 (1956) 96 CLR 10 at 16. 104 Consider Prodrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 529 at 532-533. 105 (1997) 72 ALJR 65. -- 20 of 21 -- 21 [34] It was not submitted on behalf of the defendants that the plaintiff was so affected by alcohol “as to be incapable of exercising the effective control” of his motor cycle.106 But it was common ground between the parties that the evidence of his alcohol consumption required the reduction of damages on the grounds of contributory negligence by 25% or a greater percentage within s 47(4) of the CLA and that contributory negligence must be presumed.107 [35] If the first defendant was, contrary to my findings, negligent, that is, that some failure of hers to exercise reasonable care caused or contributed to the collision and the plaintiff’s damages, her contribution expressed as a percentage must have been slight and so much less than that of the defendant so that effectively, as a causal contributor, hers is overwhelmed by the negligence of the plaintiff. In the circumstances of the plaintiff’s alcohol consumption, its impairment upon his faculties including those of observation and judgement, his failure to keep a proper look out and his failure to give a timely warning of his manoeuvre onto the highway his failure to take care was so gross that I would assess his contributory negligence at 100%. [36] Nevertheless in the circumstances of my findings as to the cause of the collision in [30] above the plaintiff’s claim for damages should be dismissed. The orders that I would make would be: 1. Judgement for the defendants against the plaintiff. 2. That within 14 days of the publication of these reasons the parties are to file and serve written submissions upon the issue of costs. 3. That in the event no party files submissions upon costs the order be: (a) The plaintiff pay the second defendant’s costs of and incidental to the action to be assessed on the standard basis, such costs to include reserved costs if any. 106 Section 47(5)(b) of the CLA. 107 See s 47(2). It was not suggested on behalf of the plaintiff that the plaintiff was not intoxicated within the meaning of that term used with s 47 nor was there any attempt to rebut the presumption of contributory negligence as contemplated by s 47(3). -- 21 of 21 --