Appeal court reverses crash responsibility

The father of an unborn boy who was severely injured when the car in which his pregnant mother was a passenger crashed has been found 60% responsible for the collision.

NSW Supreme Court Justice Stephen Campbell had previously cleared Ali Zraika of liability and blamed the other vehicle’s driver, Rebecca Jane Walsh, and Bankstown City Council (BCC) and NSW Roads & Maritime Services (RMS) for the November 16, 2002, crash.

On March 22, 2016, NSW Appeal Court Justice Mark Leeming, with whom Justices Fabian Gleeson and Carolyn Simpson agreed, overturned most of Justice Campbell’s findings. Justice Leeming said blame should be shared between the two drivers and cleared BCC and RMS of responsibility.

The Appeal Court heard Sharif Zraika was injured in utero when his parents’ car collided with a ute driven by Mrs Walsh. Mr Zraika and Mrs Walsh had both ignored “turn left only” signals.

Mr Zraika was travelling north along Woodville Rd at Villawood and intended to continue straight through a T-intersection with Tangerine St. He entered the intersection from the kerbside lane, overtaking northbound traffic banked up in the middle two lanes. Mrs Walsh was driving westward, having entered the intersection from the driveway of a factory complex roughly opposite Tangerine St.

Justice Campbell said but for BCC’s failure to impose conditions restricting traffic movements from the driveway, including requiring construction of an island to direct traffic to turn left into the southbound lanes on Woodville Rd, the accident would not have occurred

Despite the driveway feeding directly into the signalised T-intersection, the driveway was not controlled by traffic lights. Mrs Walsh drove across the intersection while the north-south traffic lights were red. However, as she did, the lights turned green and Mr Zraika entered the intersection. Because of the northbound vehicles stopped at the lights, neither Mr Zraika nor Mrs Walsh saw each other’s vehicles until less than a second before the collision.

Both drivers disregarded signage at the intersection. There was a “turn left only” sign to Mrs Walsh’s left as she exited the driveway, indicating all traffic exiting the factory complex must turn left onto Woodville Rd. The northbound kerbside lane of Woodville Rd from which Mr Zraika entered the intersection had a series of left turn arrows painted on it requiring drivers to turn left into Tangerine St.

Mrs Walsh gave evidence she did not see the turn left only sign as she exited the driveway. But Justice Campbell said: “Mrs Walsh’s act in driving across the intersection was always fraught with risk. As an experienced driver she must have known she had limited time to complete such a manoeuvre. If it was to be undertaken, it could not be undertaken hesitantly by inching across the intersection.

“Even if it was understandable that she missed the sign, as so many others apparently did, given her hesitancy about crossing the intersection, a reasonable driver would have taken the easier, safer option of turning left.”

Sharif Zraika brought a claim against Mrs Walsh, the owner of Mrs Walsh’s car, Mr Joseph Walsh, RMS, BCC and Mr Zraika. Mr and Mrs Walsh admitted breaching the duty of care owed by a motorist to other road users, but disputed whether Sharif’s disabilities were acquired in the collision, arguing they were congenital.

The other defendants denied all liability and cross-claimed among themselves. Because of the number of parties, Sharif’s age and the possible complexity of medical issues, orders were made for separate determination of a series of questions resolving most but not all questions of liability.
Initially, Justice Campbell had found Mrs Walsh 50% responsible. He said BCC and RMS were each 25% responsible because of poor planning and inadequate signage.

Justice Campbell cleared Mr Zraika because he believed Mr Zraika’s actions, while against the road rules, did not contribute to the collision. He said the turn left only signal Mr Zraika ignored was more for traffic efficiency than road safety.

After delivery of the first judgement, the parties resolved remaining issues and agreed Sharif was entitled to $6 million plus costs. A regime was agreed for payments to be made to him and the appeal process would proceed without his involvement.

On appeal, Justice Leeming disagreed with Justice Campbell’s finding and said the evidence showed Mr Zraika was more responsible than Mrs Walsh. “Had Mr Zraika not [ignored the signal] there would have been no collision and no damage. The compulsory left turn was essential for safety as well as efficiency.”

He said although Mr Zraika had a green light, he had entered the intersection unlawfully and it was reasonably foreseeable there could be an obstruction in the intersection. Mrs Walsh had entered the intersection lawfully. Mr Zraika’s “favourable traffic control signal had only limited relevance in those circumstances”.

“A reasonable person in Mr Zraika’s position would not have changed lanes and proceeded from the kerbside lane through the intersection at 65 km/h. A reasonable person would have stayed in one of the centre lanes and waited for the traffic flow to resume,” Justice Leeming said.

“Even if the delay turned out to be extensive, a reasonable person would only enter the intersection from the kerbside left turn only lane at a slow speed and with considerable caution, against the possibility there was an obstruction already in the intersection.”

Justice Leeming said there was no evidence before the Appeal Court or Justice Campbell proving BCC or RMS had breached their duties of care. BCC had complied with planning requirements when managing development around the intersection and RMS had acted swiftly to rectify concerns when they were raised.

He rejected Justice Campbell’s finding RMS was made aware directional signs were inadequate months before the crash but did not act. The evidence instead showed RMS became aware of issues because of the crash and could not have acted earlier.

Justice Leeming apportioned liability against Mr Zraika (60%) and Ms Walsh (40%) and ordered BCC and RMS be reimbursed for any damages they had already paid and appeal costs.

He said the court had been told it was agreed Sharif would not be disadvantaged by any Appeal Court orders. Because payments had been made to Sharif, Mr Zraika and the Walshs would need to reimburse RMS and BCC and Mr Zraika would need to make a payment to Mr and Mrs Walsh.
“It should be possible for the parties to agree to a mechanism by which that can take place. In principle, those parties which have already paid more than they are obliged to pay would seem to be entitled to interest,” Justice Leeming said.

(Bankstown City Council v Zraika; Roads & Maritime Services v Zraika [2016], NSWCA 51, 22/03/2016; Zraika v Walsh [2015] NSWSC 485, 30/04/2015)