1. Appeal allowed. 2. Set aside the orders made on 13 August 2019, and in lieu thereof, order that the proceedings be dismissed, with costs. 3. Respondent to pay the appellant’s costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

LEEMING JA: The appellant, Mr Stephen Patrick Ryan, was an experienced truck driver. Just before 6:00 am on 30 June 2011, while at traffic lights in a right turning lane on the Princes Highway near Loftus waiting to turn into Farnell Ave towards Bundeena, Mr Ryan’s articulated vehicle was struck in the rear by a Holden Commodore station wagon driven by Mr Bradley Stahlhut. Mr Stahlhut was driving in the through lane adjacent to the right-turning lane. It was accepted that at the time of the collision, Mr Ryan’s trailer protruded into the through lane, and Mr Stahlhut’s vehicle was wholly in his own lane. Mr Stahlhut was travelling to work. He suffered serious injuries, and continues to receive workers compensation. His vehicle struck that of another driver, travelling in the kerbside lane, who had been overtaken by Mr Stahlhut shortly before the collision, and that other driver and his wife (Mr and Mrs McMaster) also suffered milder injuries. The couple and another driver (Mr Schofield) who had been travelling slightly ahead and saw the accident in his rear mirror, gave evidence at the trial. So did Mr Ryan. Mr Stahlhut had no recollection of the collision and did not give evidence. It seems that Mr Stahlhut’s employer had not paid workers compensation insurance premiums, and that the payments to Mr Stahlhut had been made by the respondent Workers Compensation Nominal Insurer. The Nominal Insurer had commenced proceedings in 2018 seeking recovery from Mr Ryan pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW). Issues in the litigation at first instance concerning a judgment in Mr Ryan’s favour against Mr Stahlhut and defences based on the statute of limitations and abuse of process were not raised on appeal. Following a four day hearing in the District Court, the primary judge made findings favourable to the plaintiff on breach, said that causation was not disputed, and rejected Mr Ryan’s partial defence of contributory negligence. Notional damages were agreed at $850,000, leading to a judgment against Mr Ryan in the amount of $262,366.11 plus interest. Nothing turns for present purposes on any aspect of how the judgment was calculated. It is clear that Mr Ryan’s appeal is as of right, pursuant to s 127 of the District Court Act 1973 (NSW).

Overview of the intersection and the collision

Subsequent to the accident, the intersection of the Princes Highway with Farnell Ave has been reconfigured. The main change is that the traffic islands have been made smaller, with the result that it is easier for an articulated vehicle to turn right into Farnell Ave. Even so, the photograph reproduced below, to which reference was made throughout the appeal, helpfully shows the configuration of the roadway at the intersection. The yellow arrow represents the approximate position of Mr Ryan’s truck, while the orange line reflects the path taken by Mr Stahlhut’s vehicle in the inner of two northbound lanes on the Princes Highway, before and after the collision.

While many aspects of the collision were disputed, there was no dispute about the following matters. First, the right turning lane was separated from the through lane by broken white lines, which became an unbroken line in the immediate vicinity of the intersection. Secondly, the right hand intersection involved a turn of some 110 degrees. In order to position his vehicle to make that turn, and in order to avoid “taking out” the traffic signals on the traffic island to his right, Mr Ryan had travelled along the through lanes of the Princes Highway, rather than within the right hand turn lane, before coming to a stop at the traffic lights. The experts called by both sides agreed that it was not possible for Mr Ryan’s vehicle to make his right hand turn into Farnell Ave whilst keeping his vehicle wholly within the right-turning lane; it was common ground that Mr Ryan needed to take the right-hand turn “wide”. One of the experts added that:

“This situation of a long vehicle taking up more than one lane width is not unusual, and is even referred to in the RMS drivers’ handbook and accounted for in the Australian Road Rules.”

Drivers are ordinarily required to drive so that their vehicles are completely in a marked lane (see former Road Rule 146 of the Road Rules 2008). However, Road Rule 146 did not apply to the driver of an oversize vehicle, such as the truck driven by Mr Ryan, by reason of former Road Rule 311, so long as inter alia it was not practicable for him to comply and he was taking reasonable care. Thirdly, Mr Ryan had halted his truck at the traffic lights at the intersection, with the front stopped at the unbroken marked line, or “stop-line”, at the intersection. Fourthly, positioned as he was, Mr Ryan’s trailer protruded into the through lane of the Princes Highway. Fifthly, Mr Ryan was aware at the time that his trailer intruded into the through lane. Sixthly, if Mr Ryan had driven forwards beyond the unbroken white line at the intersection for some 2-3 m, then his trailer would not have protruded into the through lane at all. As it happens, the cabin of his truck would not have intruded into the path of vehicles emerging from Farnell Ave and turning right onto the Princes Highway. However, to do so would have been to commit the offence created by Road Rule 56 in force at the time, forbidding vehicles from travelling past a stop-line at traffic lights when the lights are red. The qualified dispensation for oversize vehicles from many of the Road Rules (including those concerning remaining in a single lane) did not extend to Rule 56. Seventhly, the ambulance was booked at 5:55 am on a winter’s morning, the road was wet and the intersection was not well-lit. Eighthly, on the rear of Mr Ryan’s trailer, his right hand blinker was flashing, the brake lights and parking lights were on, and in addition there was an orange rotating light, and side lights down each side. A picture taken of the rear of the trailer by police shortly after the accident is reproduced below.

The red circles added to the photograph show the three areas of the trailer which were damaged by Mr Stahlhut’s vehicle: the left side of the under-run bar, the left blinker and part of the left brake light, and a cargo bin which was slung under the trailer chassis. Those features, together with the damage to the front “A”-frame of Mr Stahlhut’s vehicle, led the experts to conclude that Mr Stahlhut had overlapped with the trailer by around 20-30 cm.

Overview of issues

The primary judge found that the overhang of Mr Ryan’s vehicle into the through lane was around 50 cm. By a notice of contention, the respondent invited this Court to find that in fact the overhang was closer to 100 cm. The primary judge found that the duty of care owed by Mr Ryan to other drivers was breached in two ways:

by failing to drive 2-3 m beyond the stop-line at the intersection, so as to avoid the risk presented by his trailer protruding into the through lane, and by failing to activate his hazard lights while stopped at the intersection.

Mr Ryan challenges both of those findings of breach, by grounds 2 and 4-6 of his appeal.

The primary judge wrote at [34] that “[t]he defendant does not submit that the general principles of s 5D are not satisfied in respect of causation”. While it is true that no question of causation arises in relation to the first finding of breach (driving forwards 2-3 m), Mr Rewell SC, who appeared in this Court and before the primary judge, had made it plain that s 5D of the Civil Liability Act 2002 (NSW) was in issue. Mr Fitzsimmons SC, who also appeared in this Court and at trial, conceded as much. Grounds 7 and 8 challenged the finding of causation. The primary judge rejected a defence of contributory negligence, saying that he was not persuaded that Mr Stahlhut had failed to keep a proper lookout, and that while he had failed to travel in the centre of his lane, he did not know that he could have avoided the danger of which he was unaware by driving in the centre of his lane. This is challenged by Ground 9 of the appeal. There are other grounds dealing with factual matters as to which the experts were divided and as to which the primary judge made no finding. These were the range at which Mr Stahlhut should have seen the trailer, the perception/response time for Mr Stahlhut to react, and the appropriate action required to respond. Although the parties’ written and oral submissions proceeded in a different order, the logical starting point is the notice of contention. Only after the precise mechanics of the collision (as best as they may be found drawing upon such evidence as is available now, many years after the event) are determined can questions of breach, causation and contributory negligence be considered. In particular, the extent to which Mr Ryan’s trailer intruded into Mr Stahlhut’s lane bears directly on how obvious it would have been as he approached and whether a driver taking reasonable care would have seen it in time to avoid a collision.

Notice of contention: the extent of the overhang of Mr Ryan’s trailer

The finding by the primary judge that Mr Ryan’s trailer overhung the adjoining lane by about 50 cm was based upon the evidence of the defendant’s expert, Mr Keramidas. In making that finding, the primary judge did not refer to the testimonial evidence, although it is consistent with what Mr Ryan himself said was the extent of the overhang. Mr Ryan also said that he had years of experience and that “I can nearly tell you within six inches where those wheels lined up”. The primary judge, it may be noted, accepted Mr Ryan to be a “completely honest and truthful witness”. There was no dispute that the lane was some 3.7 m wide, and that Mr Stahlhut’s vehicle was just under 1.8 m wide. Mr Keramidas’ opinion was based on three things: the location of the debris on the roadway, gouging to the road surface, and the geometry of the intersection. The debris field was shown on police photographs taken in the aftermath of the collision. The gouging on the surface was only relied on in a supplementary report, following the expert’s enhancement of an under-exposed police photograph. The expert circled the gouge marks in yellow in the following enhanced photograph:

Mr Keramidas said that “[t]hese gouge marks are a clear indication of the area of maximum engagement between the Holden and [the] rear of the Defendant’s trailer”. He added that “[t]he fact that the gouge marks are lateral indicates that impact has occurred, and the vehicle is in the process of rotating out of maximum engagement towards an area where it was eventually impacted by Mr McMaster’s vehicle”. Mr Keramidas also relied on a scale diagram of the intersection, based on the length of the trailer:

He added:

“The figure above also depicts the approximate point of impact longitudinally on the highway, and is achieved by positioning the front of the prime mover in-line with the ‘old’ stop control line. An overall length of 21 metres from that control line places the rear of the trailer as depicted in the above figure. This location provides a very good match with the field of debris ...”

A supplementary report by Mr Keramidas corrected a small error in the length of the truck, and confirmed the result. The respondent’s notice of contention was based on lay testimonial evidence to the effect that the trailer protruded further into Mr Stahlhut’s lane. There were three sources of this evidence.

Mr Ronald McMaster was driving adjacent to Mr Stahlhut, in the kerbside lane, and gave evidence that he observed the trailer to be “protruding considerably” into the adjacent lane. He estimated the extent of the intrusion was about one third of the width of the lane. It was agreed that the lane was 3.7 m wide. Mrs Mary McMaster was concentrating on her mobile phone until immediately before the collision, but she also estimated that the left corner of the truck was between one quarter and one third of the way across the adjacent lane. Thirdly, Mr Joseph Schofield, who had been driving ahead of Mr Stahlhut, estimated that about 1 m or 1.5 m of the trailer was hanging into the adjacent northbound lane.

Those three witnesses were giving evidence of their recollections some eight years after the event. Their evidence contained much that called its accuracy into question. Mr McMaster gave evidence that a white van had been driving in front of Mr Stahlhut, had changed lanes, and that that was the reason Mr Stahlhut had failed to avoid a collision. The primary judge found that there was no white van. Although at one stage a challenge was made to that factual finding too, it was not pressed. It follows that it was accepted that in relation to one highly material aspect of Mr McMaster’s recollection, it was faulty. Mrs McMaster said that she was looking at her phone and drinking her coffee and “only looked up at the last second and only saw the collision”. She acknowledged that she only saw the accident in her peripheral vision. She was not sure whether Mr Stahlhut was still in the process of overtaking them (“I don’t recall exactly. It’s a long time ago”). Mr Schofield said that he saw the accident in his rear view mirror. He said that he had been travelling in the kerbside lane and saw Mr Stahlhut approaching him with a view to overtaking him, but that “[b]y the time he got to the back of my car, he hit the trailer”. He could not recall that the truck had any indicators on, but he said that he noticed the trailer in the through lane, and that Mr Stahlhut was so close to him that he was either going to hit the trailer or else hit Mr Schofield’s vehicle. Mr Schofield gave a statement to the police on the day, which simply stated that “I saw that some of the trailer of this truck was overhanging the turning lane and was in the right hand lane”. I intend no criticism of any of the witnesses. Witnesses who have seen traumatic events not infrequently have a genuinely held but materially distorted recollection of what occurred. And all were giving evidence of their recollections of the extent of a protruding trailer on a dark road many years before. However, I regard this as a clear case. There is no basis for elevating the recollections of the lay witnesses to detract from what was said to follow from the debris on the road, the gouging of the road surface and the geometry of the truck in the intersection. Indeed, neither the oral nor written submissions in support of the notice of contention even attended to the physical evidence summarised above. The notice of contention is not made out.

First breach of duty: failure to drive forwards 2-3 m across the stop line

It was common ground that it was an offence for Mr Ryan to drive his vehicle over the unbroken white line against the red traffic light. Road Rule 56 of the Road Rules 2008, in the form it then took, relevantly provided:

“56 Stopping for a red traffic light or arrow

(1) A driver approaching or at traffic lights showing a red traffic light must stop:

(a) if there is a stop line at or near the traffic lights—as near as practicable to, but before reaching, the stop line, or

(b) if there is a stop here on red signal sign at or near the traffic lights, but no stop line—as near as practicable to, but before reaching, the sign, or

(c) if there is no stop line or stop here on red signal sign at or near the traffic lights—as near as practicable to, but before reaching, the nearest or only traffic lights,

and must not proceed past the stop line, stop here on red signal sign or nearest or only traffic lights (as the case may be) until the traffic lights show a green or flashing yellow traffic light or no traffic light.

Maximum penalty: 20 penalty units.”

As it happens, Mr Ryan’s vehicle was oversize, and prominently so described. Road Rule 311 permitted in certain circumstances that drivers of oversize vehicles need not comply with a large number of Road Rules, including some relating to giving way, traffic signs and road markings. The exemption applies if it is not practicable for the driver to comply with the provision and the driver is taking reasonable care and the driver is complying with other relevant laws relating to oversize vehicles, including the conditions of any permit or authority issued in relation to the oversize vehicle. However, Road Rule 56 is not one of the Road Rules exempted. It was also common ground that the mere fact that this particular of breach would be an offence did not per se preclude it being something which Mr Ryan was required to do in order to adhere to his duty to take reasonable care. That accorded with what was said in Kollas v Scurrah [2008] NSWCA 17 at [76] by Bell JA, with whom Mason P agreed:

“The determination of what reasonable care requires in a given case is not resolved by asking whether the omission is, or is not, prohibited by the [Australian Road Rules] or the Regulation. However the fact that conduct is prohibited may be one factor pointing to the conclusion that reasonable care did not require it.”

See also Verryt v Schoupp [2015] NSWCA 128 at [4] and the cases there cited.

The onus lay upon the Nominal Insurer to establish that in addition to there being a foreseeable and not insignificant risk, a reasonable person in Mr Ryan’s position would have taken the precaution of disobeying the law and advancing 2-3 m into the intersection. I do not accept that that is so. True it is that with the advantages of the aerial photograph reproduced earlier in these reasons, it is clear that there is some 2-3 m into which Mr Ryan could advance without intersecting the flow of right-turning traffic emerging from Farnell Ave. But breach must be addressed prospectively. What is clear from the aerial photograph would not have been evident to Mr Ryan at the time, in the dark, turning hard right into an unfamiliar part of the intersection. Further, Mr Ryan was conscious that the protrusion of his trailer into the through lane was minor, that any vehicle driving in the centre of its lane would avoid a collision, and that the rear of his trailer was well-lit. The reasons of the primary judge do not address this. They pointed to the “recognised risk of death or serious injury” and contrasted that with the “postulated breach of the Road Rules that created no risk whatsoever”. The primary judge rejected hypotheses propounded by Mr Keramidas that the forward placement of the truck would create a risk of blinding southbound drivers along the Princes Highway, and that reasoning is not without force. However, his Honour’s conclusion was:

“I find that the burden placed upon Mr Ryan by requiring him to breach the Road Rules was not incompatible with his duty to avoid the very serious risk of death or serious injury created by the position of his semi-trailer on the roadway”.

That with respect is a statement of conclusion, and does not address the issue posed by s 5B(1)(c), namely, that a reasonable person in the position of Mr Ryan would have committed an offence and advanced 2 or 3 metres into a dark unfamiliar intersection. This ground of appeal is made out.

Second breach of duty – failure to turn on hazard lights

The primary judge found that the risk of harm was “not at all improbable” and the activation of hazard lights placed no burden upon Mr Ryan. That was the entirety of the reasoning in support of the conclusion necessitated by s 5B(1)(c) that a reasonable person in Mr Ryan’s position would have activated the hazard lights. I am not so sure. Mr Ryan’s trailer was well-lit. It was described as an oversize vehicle, and there was evidence, which seems to have been uncontroversial, that that sign would have been visible when Mr Stahlhut was 100 metres away:

“By about 100 metres it would be expected that an approaching vehicle's headlight throw would provide sufficient illumination of the light coloured rear of the trailer and high contrast 'OVER SIZE' rear plate, as well as the tail lights and the strobe light at the rear. It should have been apparent by this point that the vehicle was stationary, as the traffic control signals would also have been visible by this point.”

I think there is much to be said in support of the proposition that the presence of an oversize vehicle in a turning lane, which has already commenced the turn, carries with it the possibility that it may extend onto the adjoining lane. I am however also conscious of two countervailing considerations. The first is that Mr Fitzsimmons conceded in oral submissions that there would have been no breach of duty had it been daylight, or had the intersection been well-lit. As refined, the submission was that a reasonable person in Mr Ryan’s position would have activated the hazard lights at this particular poorly-lit and poorly designed intersection on this dark morning. The second is that the trailer intruded only by 50 cm into a lane which was 3.7 m wide. In a sense, the smallness of the intrusion might, at least on one view, give rise to a greater danger, because it was less obvious that the trailer was not wholly confined to the right-turning lane. Even so, I incline to the view that there was no breach of duty. However, it is not necessary for me to express a concluded view, in light of the issue of causation, and it is difficult to do so in light of the absence of findings of primary fact.

Causation

It was accepted that the primary judge erred in failing to address whether the failure to activate the hazard lights caused the collision, and proceeding on the basis that causation was not disputed. To be fair, there was a sentence in the reasons of the primary judge dealing with breach which bears upon causation. His Honour said:

“The activation of hazard lights is well recognised as a means of alerting road users to danger. Had Mr Ryan activated his hazard lights the left-hand blinker would have drawn Mr Stahlhut’s attention to the overhang at an earlier time. This action placed no burden upon him.”

On this limb of the case, the onus lay upon the Nominal Insurer to establish, to the civil standard, that the collision would not have occurred had the warning lights been activated. It was not in issue that Mr Ryan’s trailer, as it stood at the intersection, had two tail lights, two brake lights, one right blinker and a rotating orange light illuminated. It was dark. The experts agreed that the recognition distance for Mr Ryan’s illuminated trailer was at least 100 m. The trailer must have covered up some of the lane markings separating Mr Stahlhut’s lane from the right-turning lane. Mr Stahlhut must have been driving in the right hand half of his lane in order to have collided with the trailer. His vehicle was 1.8 m wide, the lane was 3.7 m wide, the trailer intruded by 40-50 cm with the overlap between the two vehicles of 20-30 cm. There was thus in the order of 1.6 or 1.7 m of empty lane to Mr Stahlhut’s left. All the evidence pointed to Mr Stahlhut’s speed being around 80 km/h (which was the speed limit). If Mr Stahlhut was driving at 80 km/h, which is some 22 m/s, there was some 4½ seconds for him to place his vehicle in the middle of his lane. It is known that he failed to do this when there were six lights, two of which were flashing, on the trailer. Why would it be inferred that a seventh light would make any difference? The respondent emphasised, correctly, that the left blinker would have been flashing in Mr Stahlhut’s lane, and so might have more readily prompted Mr Stahlhut to appreciate the presence of the trailer in his lane. But on analysis this is insufficient to establish causation. Mr Stahlhut was in the process of preparing to overtake Mr McMaster’s vehicle. As he did so, either Mr Stahlhut saw the trailer or he did not. If he did not see it at all, then a seventh rear light would not make a difference. If he did see the trailer, then Mr Stahlhut was in the position where he was overtaking a vehicle in the kerbside lane in circumstances where he chose to be on the extreme right of his own lane, so much so that his vehicle actually collided with the illuminated red brake light or tail light. There was also a smaller round red light to the left of the trailer’s left blinker. There is no reason to doubt that that light, together with other lights along the side of the trailer, was lit. Mr McMaster told a police officer at the time that:

“When I saw him parked in Farnell Avenue I saw lights up the side and rear of the trailer lit up so I assume they were on.”

It is certainly possible that Mr Stahlhut may have responded to an extra flashing light in his lane. But the onus lies on the Nominal Insurer to prove to the civil standard that more likely than not it would have caused him to avoid the collision. I do not see an available basis on which one could conclude that another light would more likely than not have caused Mr Stahlhut to alter his position on the road. The onus lies on the respondent to make out, on the balance of probabilities, any fact relevant to the issue of causation: s 5E. These grounds are made out.

Remaining issues and orders

Against the possibility that Mr Ryan might be found liable to the respondent, there was a challenge to the rejection of contributory negligence. Both senior counsel accepted the difficulty this Court would have addressing this issue. In particular, there was a very large dispute between the experts on reaction times, and indeed on the appropriate methodology to adopt, as to which the primary judge had made no findings. Mr Jamieson, called for the respondent, was critical of the studies which have been relied on for many years, associated with the work of Mutart. Mr Keramidas defended their use. Mr Jamieson referred to more recent work based on drivers of large vehicles in London, and very recent (and, I infer, unpublished) work done by his firm based on CCTV of Sydney buses. The result of that work was, as I understood it, his opinion, that the reaction time for an alteration to the steering was considerably longer than the reaction time to apply brakes. As presently advised, I regard that as counterintuitive, if indeed (which I am inclined to doubt) it is applicable to the minor steering adjustment by the driver of an ordinary vehicle such as that driven by Mr Stahlhut as he negotiated a gentle bend. Although Mr Jamieson’s testimonial evidence of the work was permitted to be adduced, and was relied on by the primary judge, the underlying research is not before the Court. Contributory negligence does not, on the view I take, arise. In order to resolve contributory negligence, I would need to undertake separate analyses for each way in which breach was assumed to have been established, and make a series of findings resolving the disputed expert evidence. None of that will have any bearing upon any order this Court makes. Although inevitably obiter and non-dispositive it might have an impact on other litigation where it is dispositive. I do not think it is appropriate to take that course. For the reasons given, the appeal should be allowed. Subject to any matters of which the Court is presently unaware, costs should follow the event. If there is a basis for a special costs order, application may be made in accordance with the rules. I propose the following orders:

1. Appeal allowed.

2. Set aside the orders made on 13 August 2019, and in lieu thereof, order that the proceedings be dismissed, with costs.

3. Respondent to pay the appellant’s costs of the appeal.

PAYNE JA: I agree with Leeming JA. WHITE JA: I agree with Leeming JA.

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