You are driving me bananas! Trip to the fruit barn results in a rear end collision – Bates v Gillham [2016] NSWCA 129
Originally Published by Alexandra Kyprianos on Tuesday, June 7, 2016 12:00:00 AM
Author: Alexandra Kyprianos
Judgment Date: 30th May, 2016
Citation: Bates v Gillham [2016] NSWCA 129
Jurisdiction: New South Wales Court of Appeal1
Principles
In order to satisfy s 5B of the Civil Liability Act 2002 (NSW) (CLA), a plaintiff must demonstrate that a defendant's actions were inherently unreasonable and that a reasonable person in the position of the defendant would not have done the same.
Section 5E of the CLA places an onus on the plaintiff to not only adduce evidence, but prove the facts upon which they wish to rely during oral evidence, particularly during cross-examination.
Background
The defendant was travelling on a highway in a westerly direction when she stopped and waited for a gap in the easterly traffic in order to turn right across painted unbroken lines into her local fruit barn. The defendant was initially unsure of where to turn and first slowed at the fruit barn exit before locating the correct entry point. The plaintiff, who was travelling behind the defendant in the same lane, collided with the rear of the defendant's vehicle.
The trial judge determined that the defendant's right turn was undertaken lawfully. The trial judge found that there was a 130m line of sight down the highway available to the plaintiff to observe a stationary vehicle with brake and turning lights activated. The trial judge accepted that the defendant's right turn indicator was on, but her brake lights may or may not have been.
Ultimately, the trial judge determined that the defendant, who knew the risks posed to other road users travelling on a highway, was negligent in hesitating, slowing and turning right, as well as in failing to move over at an earlier point to either make a decisive manoeuvre to turn right or to turn left at an earlier U-turn bay.
The plaintiff's award was reduced by 50% for contributory negligence, in failing to keep a proper lookout and running into the rear of the defendant's vehicle.
The defendant appealed the decision.
The trial judge determined that the defendant's right turn was undertaken lawfully. The trial judge found that there was a 130m line of sight down the highway available to the plaintiff to observe a stationary vehicle with brake and turning lights activated. The trial judge accepted that the defendant's right turn indicator was on, but her brake lights may or may not have been.
Ultimately, the trial judge determined that the defendant, who knew the risks posed to other road users travelling on a highway, was negligent in hesitating, slowing and turning right, as well as in failing to move over at an earlier point to either make a decisive manoeuvre to turn right or to turn left at an earlier U-turn bay.
The plaintiff's award was reduced by 50% for contributory negligence, in failing to keep a proper lookout and running into the rear of the defendant's vehicle.
The defendant appealed the decision.
Decision
In the New South Wales Court of Appeal (Court of Appeal), the defendant argued that a number of errors of fact were made by the trial judge, including that the trial judge:
- Failed to address the defendant's evidence that she applied her brake lights, which was unchallenged in cross-examination
- Failed to consider the unchallenged evidence given by the defendant that she had activated her right turn indicator approximately 50m before the correct turn off
- Was incorrect in finding the defendant had stopped at the exit when she mistook it for an entry.
However, the Court of Appeal (with Basten J preparing the leading judgment) focused on errors of fact which contributed to the trial judge's finding of negligence, including:
- The inappropriate assumption that the alternative of crossing the highway using a U-turn bay was the safest option, noting that there was no evidence on this issue
- That there was no factual basis for concluding that a reasonable person in the defendant's position ought to have known of the alternative route via the U-turn bay, when the defendant gave evidence that she was unaware of the alternate course
- The failure to appreciate that the plaintiff bore the burden of proving that the U-turn bay was, in the circumstances, a precaution which a reasonable person would have taken.
The Court of Appeal found that the trial judge, in applying s 5B of the CLA, improperly used the available evidence to find that a reasonable person in the defendant's position would not have attempted the manoeuvre having regard to the risks involved.
There was further criticism of the trial judge for having dismissed the plaintiff's burden of proof under s 5E of the CLA (that is, to prove his actions were the cause of the accident) as insignificant.
The Court of Appeal found that on the facts found by the trial judge, there was no basis to conclude that the defendant had failed to exercise reasonable care for the safety of others in seeking to make a right hand turn at the fruit barn.
The appeal was allowed and the orders based on the finding of negligence set aside. The plaintiff was ordered to pay costs.
There was further criticism of the trial judge for having dismissed the plaintiff's burden of proof under s 5E of the CLA (that is, to prove his actions were the cause of the accident) as insignificant.
The Court of Appeal found that on the facts found by the trial judge, there was no basis to conclude that the defendant had failed to exercise reasonable care for the safety of others in seeking to make a right hand turn at the fruit barn.
The appeal was allowed and the orders based on the finding of negligence set aside. The plaintiff was ordered to pay costs.
Why this Case Note is important
This case reiterates that a plaintiff cannot simply allow evidence to speak for itself. The plaintiff, under s 5E of the CLA, bears the onus of proving that certain actions are unreasonable, that relevant facts are true and that alternate versions of events are implausible.
This case also highlights the role of establishing causation in order to prove there has been a breach of duty of care.
Finally, this case is helpful to insurers in limiting the circumstances in which breach will be found. Although it confirms that a plaintiff can succeed in proving a defendant has breached their duty of care where the plaintiff collides with the rear of a stationary turning vehicle, this finding is only possible where the facts lead to a conclusion that the defendant's actions were unreasonable in the circumstances.
This case also highlights the role of establishing causation in order to prove there has been a breach of duty of care.
Finally, this case is helpful to insurers in limiting the circumstances in which breach will be found. Although it confirms that a plaintiff can succeed in proving a defendant has breached their duty of care where the plaintiff collides with the rear of a stationary turning vehicle, this finding is only possible where the facts lead to a conclusion that the defendant's actions were unreasonable in the circumstances.
- Beazley P, Basten and Simpson JJA.