Anderson v Connelly & Suncorp Metway Insurance Limited [2011] QCA 37

Fraser and White JA concurred with the reasons of judgment of the President.

MARGARET McMURDO P:

[1]

On a fine morning in April 2008 at about 8.40 am, the respondent, Kristy Maree Anderson, a 22 year old bar attendant, was driving her red Kia Rio sedan onto a roundabout in Mackay. Her car collided with the white Hyundai Getz sedan driven by Alison Connelly. Ms Connelly was returning home after dropping off her children at school. Ms Anderson suffered personal injuries and brought a claim against Ms Connelly for damages in negligence. The appellant, Suncorp Metway Insurance Limited, defended the action on Ms Connelly’s behalf. The trial took place in the Mackay District Court in May last year. The judge concluded that Ms Connelly was primarily responsible for the collision, although Ms Anderson contributed to it. He apportioned 75 per cent of liability for the accident to Ms Connelly and 25 per cent to Ms Anderson. He gave judgment for Ms Anderson against the appellant in the sum of $247,001.16 and ordered the appellant to pay Ms Anderson’s costs. The appellant appeals, contending the judge ought not to have found Ms Connelly negligent.

The judge’s findings

[19] After referring to Ms Anderson’s evidence, the judge found that she:

“stopped or just about stopped her vehicle prior to entering the intersection, and that she travelled thereafter no more than approximately 15 metres before the collision.”1

[20] She was travelling much less than 30 to 40 kph at the time of the collision.2

[21] Both Ms Anderson and Ms Connelly appeared honest in their recollections.3

[22] Ms Connelly told police that she activated her right indicator; she did not state that she activated her left indicator as she straightened her vehicle to enter the Mackay-Bucasia Road. The police officer was inexperienced and asked questions from a “pro forma” sheet without specifically enquiring whether Ms Connelly changed indicators. The judge therefore placed “little weight” on Ms Connelly’s failure to tell police that she had indicated to turn left off the roundabout.4

[23] The judge continued:

“I find it difficult to determine the question of whether the left indicator was activated. I have concluded that it is more probable than not that it was not operating primarily upon the basis that whilst [Ms Anderson] did not observe Ms Connolly’s [sic] vehicle straightening as early as she might have had she been keeping a better lookout, I think she would have had at least have observed the left indicator operating at some stage before the collision. I conclude therefore that Ms Connolly [sic] is honest but mistaken in that regard.5

 I think the primary cause of this traffic accident relates to the fact that Ms Connolly’s [sic] right indicator remained operating for a longer period than was necessary giving [Ms Anderson] the false impression that she could enter the intersection safely. I find [Ms Connelly’s] lookout defective in failing to observe [Ms Anderson] at all until immediately prior to the collision and not indicating an intention to turn into Mackay Bucasia Road. Ms Connelly had the right of way because she was first to enter the roundabout, but she then arguably had the duty to give way to [Ms Anderson’s] vehicle because it had entered the outer lane beforehand. (See s. 28.1 of the Traffic Regulations).6

[Ms Anderson’s] lookout was defective in failing to observe [Ms Connelly’s] vehicle straighten. If she had done so there may have been a speculative chance she might have been able to avoid the collision by turning left in the outer lane on the Mackay Bucasia Road. I conclude however that the probabilities are that having regard to the lookout of each of the parties neither was realistically in a position to avoid the collision due to the lateness of the observation of one another.7

There was an explanation for [Ms Anderson] entering the intersection based on the continuity of the operation of the right indicator.

I conclude that there ought to be an apportionment of liability. I apportion 75% of the responsibility to [Ms Connelly] and 25% to [Ms Anderson].”8

1. Anderson v Connelly & Suncorp Metway Insurance Limited, unreported, Pack DCJ, DC No 59 of 2010, 3 June 2010, [7].

2. Above, [7], [9].

3. Above, [11].

4. Above, [14].

5. Above, [15].  

6. Above, [16].

7. Above, [18].

8. Above, [19]-[20]  

Conclusion

The obligations of the parties under the Transport Operations (Road Use Management – Road Rules) Regulation (Reprint No 4A)

[34] The High Court made clear in Sibley v Kais that a breach of traffic regulations does not necessarily correlate with a breach of the duty to take reasonable care. The fact that Ms Anderson has been fined and lost points from her licence for failing to give way at the roundabout is certainly not determinative of the liability question. But it is nevertheless helpful to begin this discussion of the resolution of the grounds of appeal with an understanding of the parties’ obligations under the Regulation.

[35] Part 9 of the Regulation directly concerned roundabouts. It is not in contention that the traffic circle where this collision occurred was a “roundabout” under the Regulation.17 Ms Anderson and Ms Connelly entered the roundabout from roads with two lines of traffic travelling in the same direction as the driver.18 Ms Connelly was intending to leave the roundabout more than halfway around it19 and so was required to enter the roundabout from the right marked lane or right line of traffic,20 as she did. Ms Anderson was intending to leave the roundabout halfway around it21 and so was entitled to enter the roundabout from either the right or left lane of traffic.22 In entering the roundabout from the left lane of the access road (subject to the discussion in the subsequent paragraph), Ms Anderson was not breaching the Regulation. Ms Anderson and Ms Connelly entered the roundabout in accordance with the arrow road markings in the lanes in which they were travelling.23 As neither Ms Anderson nor Ms Connelly was leaving the roundabout at the first exit, they were not required to give a left change of direction signal when entering the roundabout.24 As Ms Anderson was intending to exit the roundabout halfway around it, she was not required to give a right change of direction signal when entering the roundabout.25 But Ms Connelly, who was exiting the roundabout more than halfway around, was required to give a right change of direction signal when entering the roundabout,26 as she did. She was required to continue to give that signal (indicating right) in the roundabout unless “changing marked lanes, or entering another line of traffic”.27

[36] Both drivers were required to give way when entering the roundabout to any vehicle in the roundabout.28 The term “give way” is defined as meaning:

“(a) if the driver … is stopped – remain stationary until it is safe to proceed; or

(b) in any other case – slow down and, if necessary, stop to avoid a collision.”29

[37] Both drivers were required to also “give a left change of direction signal before the driver changes marked lanes to the left, or enters…another line of traffic to the left, in the roundabout”.30 It is not clear whether this provision applied to Ms Connelly when leaving the roundabout. But, in any case, the Regulation provided that, if practicable, a driver driving in a roundabout must give a left change of direction signal when leaving the roundabout.31 There was no evidence that it was not practicable for Ms Connelly to give a signal indicating left as she began to leave the roundabout for the Mackay-Bucasia Road.

[38] The regulation to which the primary judge referred in his reasons at [16] was relevantly as follows:

28 Starting a left turn from a multi-lane road

(1) A driver turning left at an intersection from a multi-lane road must approach and enter the intersection from within the left lane unless—

[exceptions not relevant in the present case].”

 17. See the Regulation, s 109 for the definition of “roundabout”.

18. See the Regulation, s 111(1).

19. Above, s 110 for the meaning of “halfway around a roundabout”.  

20. Above, s 111(3).

21. Above, s 110.

22. Above, s 111(4).

23. Above, s 111(5).

24. Above, s 112.

25. Above, s 113.

26. Above, s 113(1) and (2).

27. Above, s 113(3)(a).

28. Above, s 114(1).

29. Above, sch 6.

30 Above, s 117(1).

31 Above, s 118(1).  

The judge’s findings of fact      

[39]

Some of the facts which the appellant asks this Court to overturn are primary findings of fact. It follows that this Court will not overturn them unless they are glaringly improbable; or unless the judge, in making them, failed to use, or clearly misused, his advantage in observing the witnesses give their evidence: Brunskill; Devries.

[43]

More critical to this appeal is the judge’s acceptance of Ms Anderson’s evidence that Ms Connelly had her right indicator activated at all times prior to the accident and did not activate her left indicator at all prior to beginning to exit the roundabout immediately before the collision. Ms Anderson did not give this account to the investigating police officer. Indeed, when asked by police what she thought caused the accident, she responded that she did not know. If Ms Anderson had not thought Ms Connelly was veering left to leave the roundabout because Ms Connelly had her right indicator activated, it is curious that she did not tell police that this was a cause of the accident. But, as I have explained, the judge was entitled to consider that Ms Anderson’s account to police was unreliable because she was in shock at the time she gave it. Ms Anderson’s account at trial was consistent with the letter she wrote correcting the traffic accident report, albeit with the assistance of her solicitor almost a year later. In that letter, Ms Anderson stated that Ms Connelly was travelling around the roundabout and did not activate her left indicator to show she was exiting the roundabout prior to the collision.

[44]

It is true the judge stated he placed “little weight” on the fact that Ms Connelly did not tell police after the accident that she activated her left indicator before exiting. But this omission in Ms Connelly’s account to police was, in my view, not without significance. Ms Connelly was apparently a more mature person than the 22 year old Ms Anderson. Though no doubt shaken up by the collision, Ms Connelly was not significantly injured in it, unlike Ms Anderson. Ms Connelly, in her interview with police, appeared confident and assertive. She unequivocally stated her belief that Ms Anderson caused the accident by pulling out in front without looking. Ms Connelly’s failure to tell police that she activated her left indicator before leaving the roundabout causes me to doubt her evidence at trial that she did so.

[45]

The judge frankly conceded that he found the question, whether Ms Connelly had activated her left indicator before leaving the roundabout, difficult to determine.35 There were no independent witnesses on this question. The judge reasoned that, had Ms Connelly’s left indicator been activated, Ms Anderson was likely to have seen it prior to the collision. The fact that she did not suggested to the judge that the left indicator was not activated. With respect, I find that reasoning circular and unpersuasive. But Ms Anderson’s firm evidence that the left indicator was not activated, combined with Ms Connelly’s omission to tell police that she activated her left indicator before leaving the roundabout, persuades me that it is more probable than not that the left indicator was not activated. It follows that I agree with the judge’s findings of fact on this question.

[46]

In my view, none of the judge’s primary findings of fact impugned by the appellant should be overturned. It follows from those factual findings that a cause of the collision resulting in Ms Anderson’s injuries was Ms Connelly leaving her right indicator activated whilst exiting the roundabout to the left at the Mackay-Bucasia Road from the inside lane. Further, as the primary judge recognised, in not observing that, when she left the roundabout in this way, she was cutting across Ms Anderson’s path of travel, Ms Connelly was not keeping a proper lookout.36

[47]

Roundabouts are notoriously problematic for road users. They require drivers using them to take particular caution to look out for other road users entering, exiting or changing lanes on the roundabout. Drivers may panic or become confused in leaving or changing lanes on roundabouts. Drivers may undertake these manoeuvres with little or no use of indicators. This may be because indicators sometimes do not operate satisfactorily when the vehicle is travelling through the traffic circle in the opposite direction to that intended to be indicated. Both Ms Anderson and Ms Connelly should have been taking particular care when travelling on this roundabout to look out for others on the roundabout, relevantly each other.

[48]

The judge found that Ms Anderson had travelled only about 15 metres on the roundabout before the collision.37 That finding is not challenged. Having just entered the roundabout, Ms Anderson was required to give way to vehicles in the roundabout, including Ms Connelly’s vehicle. Even accepting Ms Anderson’s evidence that Ms Connelly’s vehicle was in the inside lane, she should have foreseen the real possibility that Ms Connelly’s car, although indicating right, could take the next exit on the Mackay-Bucasia Road. The lane markings on the roundabout38

indicated that it was possible for Ms Connelly to take this exit by crossing, rather than directly changing into the outside lane of the roundabout, although only if safe to do so. I accept the judge’s finding that Ms Anderson was misled into thinking that Ms Connelly was not taking the Mackay-Bucasia Road exit because Ms Connelly’s car had its right indicator activated. But even so, in entering the roundabout, Ms Anderson was obliged to give way to other vehicles on the roundabout and was required to take particular care in respect of Ms Connelly’s car. She should have been alert to and travelling slowly enough to prepare for the contingency that Ms Connelly’s car may leave the roundabout at the Mackay-Bucasia Road exit from the inside lane of the roundabout.

[49] In those circumstances, I consider the primary judge erred in those circumstances in apportioning such a high percentage of liability for the collision to Ms Connelly. Ms Anderson’s percentage of liability for the accident was considerably more than the 25 per cent apportioned to her. Whilst appellate courts are reluctant to interfere with such apportionments which involve discretionary considerations in the context of an appropriate range,39 it is unjust and inequitable to apportion 75 per cent of the responsibility for this accident to Ms Connelly. The primary judge clearly overlooked salient features in respect of Ms Anderson’s duty of care to a roundabout user in Ms Connelly’s position. The interests of justice require that this Court allow the appeal, set aside the judge’s apportionment, and re-apportion liability.

[50] Ms Anderson entered the roundabout when Ms Connelly’s vehicle was travelling on the roundabout in the inside lane. The collision occurred very soon afterwards. Although Ms Connelly’s vehicle was indicating that it was proceeding to the right, Ms Anderson should have taken particular care in entering the outside lane of this roundabout, whilst there was a car in the inside lane, to watch for the possibility that the car in the inside lane might leave the roundabout at the next exit, despite indicating the contrary. Indicators can be inaccurate on roundabouts. On the other hand, Ms Connelly, in taking the Mackay-Bucasia Road exit from the inside lane of the roundabout with her right indicator activated, made it difficult for Ms Anderson to anticipate her path of travel. As Ms Connelly was crossing over the outside lane to leave the roundabout, she should have taken particular care to ensure that no car had entered the roundabout at the entrance she had just passed. Had she been keeping a proper lookout, she would have been aware of Ms Anderson’s vehicle. And, of course, she should have activated her left indicator. In these circumstances, I consider that both Ms Anderson and Ms Connelly were equally responsible for the collision which resulted in Ms Anderson’s injuries. I would apportion liability to each of them at 50 per cent and vary the judgment sum in favour of Ms Anderson accordingly.

 35. Above, [15].

36. Anderson v Connelly & Suncorp Metway Insurance Limited, unreported, Pack DCJ, DC No 59 of 2010, 3 June 2010, [16].

37. Above, [7].

38. See Appendix 1 to these reasons.  

Brisbane Barrister – David Cormack

 

Related Posts

Recent Comments

    Categories