Betterman v Di Niro No. DCCIV-97-26 Judgment No. D3763

[1998] SADC 3963

KATHLEEN LUCY BETTERMAN v MARIO DI NIRO

Civil
Judge Lunn

At about 8.15am on 12 January 1994 the plaintiff was driving a Corolla sedan in a generally southerly direction in the centre lane of Main South Road at O’Halloran Hill.  At the same time the defendant was driving a 15 ton truck, which was pulling a trailer on which was a bobcat, also in a generally southerly direction in the centre lane of Main South Road at O’Halloran Hill, and ahead of the plaintiff.  There is no evidence of the length of either vehicle or the trailer, but clearly the defendant’s truck and trailer were together several times longer than the plaintiff’s car.  The carriageway of South Road for southbound traffic was divided into three lanes which were marked by hatched white lines on the roadway.  About 800 metres south of the junction of Chandler’s Hill Road, South Road takes a sweeping left bend for vehicles travelling south.  The plaintiff was travelling at about 80 kph which was the speed limit in the vicinity.  The defendant was travelling somewhat more slowly, and probably at about 60 kph.  When the plaintiff was about 100 metres from the rear of the defendant’s trailer and approaching the bend she moved into the inside lane (ie the lane to the east nearest the kerb) and proceeded to pass the defendant’s truck and trailer on their left hand side.  At about this time the defendant commenced a manoeuvre of moving his truck and trailer into the inside lane.  A kilometre or two further up the road he needed to be in the inside lane so that he could there turn left, but there was no particular need for him to change lanes at that point.  A collision ensued between the vehicles and the plaintiff’s car came to an abrupt halt on the roadside verge after hitting the kerb on three occasions.

I do not consider that the independent witness, Mr Mellors, had a good or accurate recollection of what occurred.  He was clearly wrong in saying that the defendant’s truck was proceeding at 80 kph.  It is likely that he did not pay any particular attention to the situation until he saw the plaintiff’s car hitting the kerb.

I found the plaintiff to be a more impressive and reliable witness than the defendant.  I accept her evidence, which was supported by Mr Mellors, that after the accident the defendant apologised to her for the accident.  I reject the defendant’s denial of this.  It is improbable that the defendant checked his truck and trailer for damage caused in the accident immediately after stopping as he alleged and before going back to see whether the plaintiff was injured.  There was no corroboration for his story that the only mark on his truck and trailer attributable to the accident was on the wheel of the trailer.  I do not accept his evidence about this.

I find that the defendant did not commence his movement into the inside lane until the front of the plaintiff’s car was about halfway along the tipper tray of his truck.  I reject the defendant’s contention that he activated his left hand indicator about 15 metres before he commenced his veer to the left.  There is no reason to find that the indicator light on the truck was operating before the plaintiff initially saw it at the time at which she first became aware that the truck was moving to its left.  The plaintiff then accelerated, but as she passed the front of the truck some part of it clipped the rear off side of her car.  This caused her car to move to its right and in braking and attempting to straighten it she hit the kerb three times in quick succession which blew out her front left tyre and brought her car to a halt on the verge only about 10 to 15 metres south from where she had been hit by the truck.  I reject the defendant’s contention that the plaintiff’s car had hit the kerb before it hit his truck or trailer.

I find the defendant to have been negligent in not having observed the plaintiff’s car passing him in the left hand lane before he moved his truck into that lane.  He did not keep a proper lookout in the circumstances.

I do not find the plaintiff to have been negligent in accelerating rather than braking when she first became aware that the defendant’s truck was moving into her lane.  It was a decision which she had to make in the agony of the moment, and she cannot be criticised for it.  If she had braked, there was still a considerable likelihood that she would have collided with the trailer.  Her effort to get past the front of the truck while there was still a sufficient gap between it and the kerb for her to get through almost succeeded.

The plaintiff candidly admitted that it did not occur to her to sound her horn to alert the defendant to her presence.  There was no reason why she should have done so until she became aware that the defendant was moving to his left.  In view of the very short distance which she travelled between first becoming aware of the truck moving to its left and the collision with it, it is unlikely that even if she had sounded her horn at the same time as she accelerated she could have thereby caused the defendant to pull out of his movement to the left, and so have avoided or lessened the collision.  Accordingly, I do not find this head of contributory negligence to be made out.

I accept the plaintiff’s evidence that there was too much traffic in the outside lane for her to have moved into that lane, and so to have passed the truck on its right.  Even if there had been room in the outside lane, it was not negligent of the plaintiff to seek to pass the defendant using the inside lane.  It was a lawful manoeuvre and there was no greater likelihood that the defendant would have moved to his left than he would have moved to his right.

I reject the defendant’s plea that the plaintiff failed to wear, or properly wear, her seatbelt.  I find that at the time she was wearing a lap/sash seatbelt.  The defendant’s counsel limited this plea of contributory negligence to a breach of Section 35a(1)(i) of the Wrongs Act.  While there was some suggestion that the plaintiff moved a surprisingly long way to her left as a result of the impacts with the kerb, the defendant has not proved that this resulted from her not wearing the seatbelt in conformity with s35a(1)(i).

Accordingly, I find that the plaintiff is not guilty of any contributory negligence.  Judgment will be entered for her for the agreed amount of damages.