IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT GEELONG
COMMON LAW DIVISION
CIVIL CIRCUIT LIST 
S CI 2017 04212

TRANSPORT ACCIDENT COMMISSION	Plaintiff	
		
v   		
		
MARIE STEPHENS	Defendant	

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JUDGE:	McDonald J	
WHERE HELD:	Geelong	
DATE OF HEARING:	8 and 9 August 2018	
DATE OF JUDGMENT:	9 November 2018	
CASE MAY BE CITED AS:	Transport Accident Commission v Stephens	
MEDIUM NEUTRAL CITATION:	[2018] VSC 667	

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ACCIDENT COMPENSATION – Negligence – Application by plaintiff for indemnity from defendant – Payments made to driver of motorcycle who sustained serious injuries in collision with defendant’s motor vehicle – Defendant 90 per cent liable for collision – Transport Accident Act 1986 s 104.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Gorton QC with 
Ms K Gladman	Wisewould Mahony	
			
For the Defendant	Mr B McTaggart SC with
Ms F Ryan	Lander & Rogers	

HIS HONOUR:
1	Mr Quentin Blackmore was born on 18 July 1968 and as at 8 February 2013 was 44 years old.  On that day, at approximately 11.30 am, he was riding his motorbike in a southerly direction along the Midland Highway south of Perth, Tasmania.  He was with his friend, Ivan Coyle.  As Mr Blackmore was passing through the town of Perth, he took up a position behind a Toyota Corolla being driven by the defendant, travelling in the same direction.  The defendant was accompanied by her husband as a front seat passenger.
2	Between the intersections of Old Bridge Road and Eskleigh Nursing Home Road (‘ENH Road’), Mr Blackmore commenced to overtake the defendant, pulling out into the right-hand lane as he did so.  At the point Mr Blackmore commenced to overtake the defendant, broken white lines, permitting him to overtake, divided the Midland Highway.  A speed limit of 60 km/h applied.
3	Prior to the collision the defendant turned right off Midland Highway intending to enter ENH Road.  As she did so, the right front of her car collided with Mr Blackmore’s motorcycle as Mr Blackmore was attempting to overtake the defendant’s vehicle.  Mr Blackmore was thrown onto the road and sustained serious injuries, including complete paraplegia.
4	Mr Blackmore lodged a claim for compensation in respect of his injuries and resulting incapacity under the Transport Accident Act 1986 (‘the Act’).  The claim was accepted and the plaintiff has paid, and continues to pay, compensation to Mr Blackmore.  The plaintiff seeks indemnity from the defendant pursuant to s 104 of the Act.  There is no issue that the compensation paid has been paid in accordance with the Act.
5	None of the matters set out above are in contention.  However, the precise movements of the vehicles in the period shortly prior to the collision are in dispute.  In particular, it is not agreed:  
(i)	When the defendant first indicated her turn.  The plaintiff contends that the defendant did not indicate until Mr Blackmore was alongside her vehicle, and that she indicated and commenced to turn at essentially the same time.  The defendant contends that she indicated well prior to turning.
(ii)	Whether the defendant otherwise kept a proper look out for vehicles in the period prior to her turn and prior to her commencing her turn.
(iii)	Whether Mr Blackmore failed to take proper care for his own safety either by overtaking when it was unsafe to do so or by failing to take evasive action to avoid the collision.
6	The plaintiff alleges, and the defendant disputes, that the accident was caused by the negligence of the defendant in, inter alia: 
•	failing to give adequate indication of her intention to turn right into ENH Road;
•	 failing to observe Mr Blackmore on the road; and 
•	turning right when it was unsafe to do so.  
The defendant alleges, and the plaintiff denies, that Mr Blackmore’s own negligence was a cause of his injuries in that he:  
•	failed to take care of his own safety; 
•	placed himself in a situation of danger; 
•	failed to alter the course and speed, and steer and control, of the motorcycle to avoid a collision; 
•	overtook when it was not safe to do so; and
•	failed to take evasive action to avoid the collision.
7	For the reasons which follow I have concluded that liability for the collision should be apportioned on the basis that the defendant is responsible for Mr Blackmore’s injuries to the extent of 90 per cent and Mr Blackmore is responsible to the extent of 10 per cent.
Summary of evidence
8	The trial of this proceeding was conducted with considerable efficiency over two days.  The Court heard evidence from eight witnesses.  Mr Blackmore, Mr Coyle and Mr Cocker were called on behalf of the plaintiff.  Ms Stephens and her husband, together with Mr Hanigan and police officers, Senior Constable Rybka and Senior Constable Okerby, gave evidence on behalf of the defendant.  Two of the witnesses to the collision, Mr Cocker and Mr Hanigan, have no connection with any of the parties to the litigation.
Mr Blackmore
9	Mr Blackmore’s evidence was that before the collision his bike was on the right-hand side of the left-hand lane.  Mr Coyle’s bike was on the left-hand side of the left-hand lane, either up with him or back a little bit.  At the time the traffic was light.  All of the traffic, including the motorcycles and Ms Stephens’ car, were travelling at approximately 50 km/h.  He was travelling behind Ms Stephens’ car for ‘probably a kilometre’ before the collision.  He was travelling at between five and 10 metres behind her car.  He indicated and accelerated to overtake.  Before he did so, he did not observe any speed change in Ms Stephens’ vehicle.  He did not see any brake lights or indicator lights.  He did not see any changes in the direction of her vehicle.  At the time he commenced to overtake he saw oncoming traffic in the distance.  When he was at the back right-hand door of Ms Stephens’ vehicle, he saw the indicator on the guard come on at the same time as the car turned.  He was in a position prior to the collision where he would have been visible to a driver using their mirrors.  His bike makes ‘too much’ noise.  He had no opportunity to avoid the collision.  
Mr Coyle
10	Prior to the collision, Mr Coyle was riding alongside Mr Blackmore.  Their bikes were in a staggered position, with his bike further back than Mr Blackmore’s bike.  His bike was more to the centre of the lane and Mr Blackmore’s was more to the right.  At the time they were travelling just under the speed limit or at the speed limit:  55 to 60 km/h.  They were following Ms Stephens’ car for half the distance between Perth and the scene of the accident, which is a few hundred metres.  Their bikes were in a position where somebody looking in their rear view mirror would have seen them.  Mr Coyle had a clear and unobstructed view of what was unfolding prior to and up to the point of the collision.  He first saw the indicator on Ms Stephens’ car when Mr Blackmore was beside the car.  Ms Stephens’ car turned suddenly as though it had missed the turn.  It was a sharp turn to the right, a 90 degree angle. 
Mr Cocker
11	Mr Dean Cocker was driving a BMW four-wheel drive on the morning of 8 February 2013.  Prior to the collision he was driving behind Mr Blackmore and Mr Coyle.  One of the motorbikes was on the left of the left-hand lane and the other was on the right of the left-hand lane, slightly forward to the other motorcycle.  In the lead up to the collision he was approximately 25 metres behind the motorbikes.  All vehicles had sped up to 60 km/h as they left the 50 kilometre zone outside of Perth.  There was nothing obscuring his view at the time of the collision.  He noticed Ms Stephens’ car slowing down, but not braking, and asked himself ‘what are they up to’?  The two motorcyclists and his car started to close in on Ms Stephens’ car.  When Mr Blackmore was approaching the side of the rear wheel, Ms Stephens’ car started to turn.  He estimates that her car had slowed down to 30 km/h.  She did not come to a complete stop.  Ms Stephens’ car did not indicate before it commenced to turn.  He is confident about this because if the car had been indicating, he would not have had doubt in his mind and been wondering what the car was up to.  Ms Stephens’ car turned slowly, but quite sharply.  It was almost directly opposite the intersection of ENH Road when it started to turn.  Mr Cocker had a clear view of the indicator lights on Ms Stephens’ car because his four-wheel drive had an elevated position and the two Harley Davidson motorcycles sat quite low on the road.  Further, the motorcycles were not right up at the rear of Ms Stephens’ vehicle and, as there was space between the bikes and the car, he had a clear view of all vehicles.
Ms Stephens
12	On the morning of 8 February 2013, having driven through Perth, Ms Stephens decided that she needed to go to the toilet.  She saw a sign saying ‘public toilets’ on the left side of the Midland Highway but it was too late to stop.  She decided to keep driving until she could find a place to turn.  Ms Stephens noticed a road on the right-hand side of the road and put her right-hand indicator on and it clicked five to 10 times.  When she started to turn into ENH Road her speed was approximately 35 km/h.  As the car started to turn she heard a loud noise in the back and then she was surprised to see a motorcycle right next to her as she was turning.  Ms Stephens cannot remember using her mirrors before commencing the turn.  If Mr Blackmore and Mr Coyle had been following the car for several hundred metres she had not seen them, as she did not look in her mirrors for hundreds of metres before commencing the turn.  She now recalls that the indicator clicked five to 10 times, even though she could not recall at the time she gave her answers to interrogatories, because photographs of the collision site which she had looked at had helped her to remember.  Ms Stephens denied that she commenced her turn at or about the same time she placed her indicator on.  She also denied that she did not think there was a need to provide any indication because she was unaware that there were any vehicles behind her.  However, she did agree that she made a quick decision to turn when ENH Road appeared on the right.  Her intention was to turn into ENH Road and find a parking lot to turn around.  Ms Stephens agreed that she took her foot off the accelerator and slowed down before making the turn.
Mr Stephens
13	On the morning of 8 February 2013 Ms Stephens’ husband was travelling with her.  His evidence is that the car had slowed to approximately 40 kilometres, 20 or 30 metres prior to the intersection with ENH Road.  The indicator was on for five to 10 seconds and both he and his wife could distinctly hear it.  The car undertook a ‘gentle turn’ into ENH Road.  As the car was beginning to turn they heard a motorcycle right on their bumper riding extremely close to the car.  He saw the motorcyclist on the right rear of the car.
14	In preparing for the trial, Mr Stephens told his wife that he had distinctly heard the indicator for between five to 10 seconds.  He agreed that his wife did not know how long the indicator had been on for prior to him telling her.  He distinctly remembers how long the indicator was on because when he heard the motorcycle he was shocked that someone was trying to pass them when their indicator had been on for several seconds.
Mr Hanigan
15	On the morning of 8 February 2013, Mr Hanigan was driving towards Perth in a northerly direction.  He was driving across a bridge prior to the intersection with ENH Road and saw Ms Stephens’ vehicle stationary with its indicator on, wanting to turn right.  He passed it and then looked in his rear vision mirror and saw it taking off slowly.  He swore to himself and thought ‘there’s going to be an accident here’ as he had just passed two motorcycles, one on the left and one on the right.  When he next looked in his rear vision mirror he saw a motorcycle in the air.  When he saw that Ms Stephens’ car had its right indicator on he was ‘three parts’ the way across the bridge, although he cannot be certain of his exact position.  He saw the car move off ‘ever so slowly’ after being stationary.  He could not say it was stationary for a prolonged period of time but he did think it was stationary and waiting for him to pass.  However, he might have been mistaken about this.  He has re-read a statutory declaration that he signed on 10 February 2013 and he wonders about some of the things contained therein.  He is now more confused than ever.  Given the passage of time, he cannot say either way whether the indicator light on Ms Stephens’ vehicle only came on at or about the time the car started to turn into ENH Road.
Consideration
16	As is readily apparent from the summary of the evidence set out above, there is a direct inconsistency between the evidence led on behalf of the plaintiff and the defendant regarding the question of how long Ms Stephens’ indicator was on prior to the collision.  The resolution of this issue is critical to the question of liability.  The evidence strongly supports a conclusion that Ms Stephens did not activate her indicator until immediately prior to the collision.  I place particular weight upon the evidence of Mr Cocker.  I found him to be a very credible witness, both in the manner in which he gave his evidence, and the contents thereof.  He presented as having an excellent recall of the events of 8 February 2013.
17	Immediately prior to the accident, Mr Cocker had an uninterrupted view of the motorcycles driven by Mr Blackmore and Mr Coyle and the car driven by Ms Stephens.  Just prior to the collision he observed Ms Stephens’ car to be slowing down but not braking.  He asked himself:  ‘what are they up to’?  Ms Stephens’ car did not indicate before it commenced to turn.  He was confident of this because, if the car had been indicating, he would have had no doubt in his mind and would not have been wondering what the car was up to.
18	Mr McTaggart SC, who appeared with Ms Ryan for the defendant, challenged Mr Cocker’s evidence.  He placed particular weight upon a statement in a statutory declaration made by Mr Cocker on 9 February 2013: ‘I don’t recall seeing an indicator operating on the small blue vehicle.’  
19	Mr McTaggart contended that this statement was tantamount to an admission by Mr Cocker that he had a poor recollection of the events of 8 February 2013.  I reject this submission.  The relevant section of Mr Cocker’s statutory declaration is as follows:
 …
As we were coming around the bend, I noticed the small light blue vehicle slowing down.  I saw the front motorcycle starting to get closer to the rear of the vehicle as if preparing to overtake.  He was on the right hand side of the traffic lane.  The road markings there were a broken white line from memory.  The small blue car was slowing down just before a right hand turnoff.  The turnoff is about 100 metres or less before the South Esk River Bridge.  I don’t recall seeing an indicator operating on the small blue vehicle.  I was travelling at 60 km/h at this point and the bike and car would have been approximately 50 metres in front of me.  The second bike was still maintaining its position to the rear of the first bike and over to the left.
I then saw the first bike gradually start to overtake the small car.  I don’t recall seeing an indicator operating on the bike – but it may have been, I am not sure.  The small car started to gradually turn right into that side road.  I only knew its intention to turn as it changed direction.  I didn’t see any smoke come off the bike tyres and I don’t even think he got to brake.  I don’t recall seeing a brake light on the bike.
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20	As set out above, Mr Cocker stated that he only knew of the intention of Ms Stephens’ car to turn as it changed direction.  This statement is consistent with Ms Stephens not indicating prior to turning.  Also, if the indicator had been operating, Mr Cocker would not have had the reaction: ‘what are they up to’?  He would have known that Ms Stephens’ car was turning right.  The evidence of Mr Cocker is consistent with the evidence of both Mr Blackmore and Mr Coyle that the indicator on Ms Stephens’ car was only activated as Mr Blackmore commenced overtaking her vehicle.
21	A second issue is the angle at which Ms Stephens turned into ENH Road.  The undisputed evidence is that Ms Stephens needed to go to the toilet on the morning of 8 February 2013.  When driving out of Perth, she had noticed a public toilet on her left but was not able to stop in time.  When she saw the intersection of the Midland Highway and ENH Road, her intention was to turn right into ENH Road and then drive back the short distance along the Midland Highway to the public toilet.  Both Mr and Ms Stephens gave evidence that immediately prior to the collision the car was turning slowly and not sharply into ENH Road.  This evidence is contradicted by the evidence of Mr Cocker that Ms Stephens’ car turned sharply into ENH Road when it was directly opposite the intersection.  Mr Coyle’s evidence was that Ms Stephens’ car turned suddenly as though it had missed a turn.  It was a sharp turn to the right, a 90 degree angle.  This evidence is consistent with Ms Stephens’ own evidence that she made a ‘quick decision’ to turn onto ENH Road when it appeared on the right.
22	I give Mr Hanigan’s evidence much less weight than that of Mr Cocker.  No witness, other than Mr Hanigan, gave evidence that Ms Stephens’ vehicle was stationary before commencing to turn right into ENH Road.  Mr Hanigan gave evidence that he had recently re-read his statutory declaration and wondered about some of the things in there,   and stated that he is now ‘more confused than ever’.  Given the passage of time, he could not now say either way whether the indicator light on Ms Stephens’ vehicle only came on at or about the time the car started to turn into ENH Road.  In contrast to Mr Cocker, Mr Hanigan appeared to have a poor recollection of the events of 8 February 2013.
23	I do not accept Ms Stephens’ evidence that her indicator clicked five to 10 times prior to turning into ENH Road.  On 8 February 2013 Ms Stephens made a statutory declaration in which she stated:
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As we were going through Perth I decided I needed to go to the toilet.  I saw a sign saying Public Toilets on the left side of the road but saw it too late to stop.  I kept going until I saw a place where I could turn.  As we rounded a left hand bend I saw a wide road that went off to the right.  I turned on my signal to turn right and slowed down to turn.  I’m aware that the speed limit in that location was 60 km/h but was going less than that because I was looking for somewhere to turn.
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24	Interrogatories dated 14 March 2018 were served on Ms Stephens.  Interrogatory number 15 asked Ms Stephens ‘how many seconds prior to commencing to turn into Eskleigh Nursing Home Road did you apply your vehicle’s indicator?’  Her answer was that she was unable to recall.
25	When giving evidence, Ms Stephens stated that her memory as to the period of time she had indicated prior to turning had been refreshed by looking at a number of photographs of the collision scene.  However, Ms Stephens’ husband’s evidence was that he, in preparation for the trial, told Ms Stephens that he distinctly heard the indicator for between five to 10 seconds prior to the collision.  He agreed that his wife did not know how long the indicator had been on for prior to being told by him.  I do not accept Ms Stephens’ evidence that her recollection of how long the indicator had been turned on for prior to the collision has been refreshed by photographs of the collision scene which she has viewed.  Ms Stephens’ evidence in relation to this critical issue is based on what she has been told by her husband.  There is a direct inconsistency between the evidence of Mr and Ms Stephens and Mr Cocker on the issue of how long the indicator on Ms Stephens’ car had been turned on for prior to the collision.  I strongly prefer the evidence of Mr Cocker, an independent witness with a clear recollection of events of 8 February 2013.
26	The primary cause of the collision on the morning of 8 February 2013 was Ms Stephens’ failure to indicate her intention to make a right-hand turn into ENH Road until immediately prior to commencing the turn.  Mr Blackmore was given no notice of her intention to turn.  Further, Ms Stephens turned sharply into ENH Road, making it impossible for Mr Blackmore to take evasive action.
Apportionment 
27	The question remains, should there be any apportionment of liability for any negligence on the part of Mr Blackmore?  In order for there to be any such apportionment, I must be satisfied that a reasonable person in Mr Blackmore’s position, would not have sought to overtake Ms Stephens’ car, notwithstanding her failure to indicate.
28	Prior to turning into ENH Road, Ms Stephens slowed down but did not apply her brakes.  Mr Cocker’s evidence was that the distance between Ms Stephens’ car and the two motorcycles and his vehicle narrowed as Ms Stephens’ car approached the intersection of Midland Highway and ENH Road.  Mr Cocker’s reaction was: ‘what are they up to’?  Although Ms Stephens failed to give any indication of her intention to turn right, the manner in which she was driving was such that a reasonable person would have anticipated that the reason for the vehicle slowing down may have been her intention to make a right-hand turn.
29	Mr Gorton QC, who appeared with Ms Gladman for the plaintiff, accepted that it would be open to the Court, on the evidence, to apportion a maximum of 10 to 15 per cent of the liability for the collision to Mr Blackmore.  I have concluded that it is appropriate that there be an apportionment of liability such that Ms Stephens is 90 per cent liable for the collision and Mr Blackmore is 10 per cent liable.  Ms Stephens is overwhelmingly liable for the collision by reason of her failure to:
(i)	have looked in her rear vision mirror for several hundred metres prior to commencing to turn into ENH Road, as a result of which she was not even aware of the presence of Mr Blackmore and Mr Coyle; and
(ii)	then turning sharply into ENH Road without giving any indication of her intention to do so, until immediately prior to commencing the turn.
30	Ms Stephens is liable to indemnify the plaintiff 90 per cent of the liability of the plaintiff to make payments to Mr Blackmore.  I shall provide the parties with an opportunity to make submissions on the question of the costs of the proceeding.
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