Bourn v Sylvester File No. SCGRG 92/1216 Judgment No. 3662 Number of Pages 4 Negligence

[1992] SASC 3662

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT King C.J.(1), Cox(2) and Matheson(3) JJ.

CWDS
Negligence - contributory negligence - road accident - wide load drawn by prime mover colliding with cyclist travelling in same direction - whether cyclist guilty of contributory negligence - cyclist travelling at extreme edge of bitumen - whether cyclist ought to have responded to shouted warnings from the driver of a preceding escort vehicle and a police motor cyclist and the prime mover's warning device, by leaving bitumen surface and going on to soft dirt verge - whether cyclist required to look behind and to appreciate necessity of leaving bitumen surface - trial judge's rejection of allegation of contributory negligence, upheld on appeal - defendant's appeal dismissed.

HRNG ADELAIDE, 13 October 1992 #DATE 13:10:1992
Counsel for appellant:         Mr K.R. McCarthy QC
   with Mr B.J. Carr
Solicitors:   Ross and McCarthy
Counsel for respondent:         Mr G.D. Coppola
Solicitors:   Kelly and Co.

ORDER
Appeal dismissed. Appellant to pay the respondent's costs of the appeal to be taxed.

JUDGE1 KING C.J. The respondent sued the appellant in the District Court of Adelaide for damages for injuries sustained in a road accident which occurred on 18 May 1988 at about 8.45 am. 2. The respondent, who was a 33 year old man, was riding his bicycle in a northerly direction along Main North Road. It was a ten speed bicycle with racing handlebars and the respondent was riding it to work at a speed of about 20 km/h. He was riding the bicycle near the left-hand edge of the bitumen. 3. The appellant was driving a prime mover which was drawing a load consisting of a transportable house in the same direction along Main North Road. As he passed the respondent's bicycle some part of the load came into contact with the bicycle or the respondent and knocked him to the ground, in consequence of which he suffered injuries. 4. Main North Road consists of two carriageways, one carriageway for vehicles travelling north and another carriageway for vehicles travelling south. The carriageway for vehicles travelling north consists of two traffic lanes divided by a broken line. The bounds of the carriageway are defined by a median strip on the east and by an unbroken white line on the west. The bitumen extends beyond the unbroken white line for about 30 cm. To the west of the bitumen is a dirt verge which, on the morning of the accident, was soft by reason of overnight rain. The appellant's vehicle was preceded by an escorting motor utility which travelled about 400 m ahead of it. About 200 m behind that and, therefore, about 200 m ahead of the prime mover, was a police motor cycle which was also travelling as part of the escort. Behind the load was another police motor cycle and behind that another escorting vehicle. The carriageway for north-bound traffic was about 7 m in width. The load, that is to say, the transportable house, occupied virtually the whole of that carriageway. 5. The appellant saw the respondent some distance before impact. He was travelling then at about 70 or 80 km/h. He slowed down after seeing the respondent and the learned trial judge found that he was travelling at about 60 km/h at the time of impact. 6. As the foremost vehicle in the party, that is to say, the vehicle which was travelling 400 m ahead of the prime mover, passed the respondent, an occupant of that vehicle leaned out of the passenger side window, waived his right hand, pointed towards the left-hand side of the road and shouted a warning to the effect of, as the judge found, "Long wide load following, get off the road". 7. As the police officer on the motor cycle passed the respondent he pulled alongside him and also called out to him. The words which he used cannot be ascertained with certainty because the police officer is not sure of the actual words that he used, but the words which he used, according to his evidence, were something to the effect of "Move over, wide load coming". The learned judge in his reasons for judgment interpreted the effect of the words used as "Wide load following, keep to the edge (or left)". As the prime mover approached its warning device was sounded by the appellant. 8. The respondent gave evidence but he was unable to assist as to the events preceding the accident. He had no memory of those events in consequence of the injuries which he sustained. It was impossible on the evidence for the learned judge to make a finding as to whether the respondent heard the warning shouted by the occupant of the leading vehicle, and indeed it was not possible to say whether he heard what the police officer actually said. That he was aware that some sort of warning had been given is apparent from the movement to which the appellant deposed, namely a movement further to the left. According to the appellant, the respondent was riding on the unbroken line and moved further to the left at about this time. 9. The learned trial judge found that the appellant was negligent. He exonerated the respondent from contributory negligence. The contention of the appellant on this appeal is that the learned trial judge was wrong in so exonerating the respondent and that there should be a finding of contributory negligence. 10. Mr McCarthy QC who appeared for the appellant before us has argued that the respondent ought to have appreciated from the warnings that were given him that there was a problem from the rear. He contended that as a result of those warnings the respondent was under an obligation for his own safety to get right off the road, that is to say, onto the dirt verge or, alternatively, he was under an obligation to look behind to satisfy himself as to what the problem was from the rear, and having so satisfied himself to move off the bitumen surface on to the dirt verge. 11. Mr McCarthy argued that if the respondent had looked behind he would have observed the load occupying the whole of the road and that prudence would then have required him to have left the road. There is no evidence, and therefore there can be no finding, as to whether the respondent, in fact, looked behind him. All that is known is that at some point as the prime mover approached, he moved somewhat further to the left, that is to say, right to the edge of the bitumen. He did not leave the bitumen, so far as the evidence goes, before impact. 12. The respondent was lawfully riding his bicycle along the road. He was travelling as near as practicable to his left-hand side of the road. It seems to me that the warnings which were given the respondent, if he heard them, would have indicated to him no more than that he ought to ride on the edge of the bitumen. If one assumes that he heard what the police officer said, it would have indicated to him, as a reasonable person, that there was a wide load approaching from the rear and that it was necessary for him to keep, as far as possible, to the left of the road so as to provide the maximum clearance for the following load. 13. I cannot see anything in the warnings that were given the respondent, even assuming that he heard them, which would have indicated to him, as a reasonable person, that it was necessary to get right off the bitumen surface onto the verge. 14. If the respondent did not hear the words of the warnings, I think that the same observation can be made. He would have appreciated or ought to have appreciated from the fact that a police officer had called out to him that it was necessary to keep as close as possible to the left-hand side of the bitumen. I do not think that a reasonable person in the position of this cyclist would be expected to infer, either from the fact that a police officer shouted a warning or from the words of the warning, if he heard them, that it was necessary for him to leave the road altogether. I do not think either that the sounding of the warning device made a difference. 15. To leave the bitumen would be a drastic course of action. It would mean leaving the safety of the bitumen for a soft dirt verge and it would mean that the cyclist would be deprived of the use of the carriageway of the road. I think that a reasonable person in the position of the cyclist would expect, if he thought about it, that, if that was to be expected of him, the police officer would stop in his path and would clearly warn him that it was necessary to dismount from his bicycle and to get off the road to make way for a load which could not otherwise pass in safety. 16. That was not the nature of the warning which he was given, either from the actions of the police officer or from his words, and I don't think that a reasonable person in the position of the respondent could be expected to deduce from what occurred that that was a necessary precaution. 17. Mr McCarthy also argued that at least the cyclist should have looked behind and seen for himself the width of the load that was following. The cyclist was riding his bicycle near the edge of the bitumen with a soft and perhaps treacherous dirt verge to his left. There are hazards in looking behind whilst a bicycle is travelling forward and I think that a glance to the rear is not an action which a cyclist, in the position of the respondent, would lightly undertake. 18. I think that the respondent was reasonably entitled to rely upon what was said by the police officer, if he heard it, and to assume that all that was necessary was that he should travel as near as practicable to the left-hand edge of the bitumen. Even if he did not hear the words which the police officer used, I think that he was entitled to assume from the fact that the police officer did no more than simply shout to him as he drove past, that there was no occasion to get right off the road, nor any occasion to satisfy himself by looking behind as to whether it might be necessary to get right off the road. 19. The fact that the police officer did no more than he did would have indicated, I think, to the respondent, as a reasonable person, that a sufficient precaution for his own safety was to keep close to the left-hand edge of the bitumen. 20. The evidence does not disclose whether the respondent, in fact, looked behind, but I am by no means convinced that if he did look behind he ought to have appreciated that it was necessary for his own safety to leave the road. 21. If he looked behind he would have seen a wide load approaching, but he would have had no indication that there was not sufficient space on the off-side of that load, that is to say between the off- side of the load and the median strip, to enable the prime mover to move to the right and to pass him with safety. It would be a most unusual thing, and not to be expected, that the driver of a prime mover, carrying a load of this kind, would, if there was insufficient clearance, continue at the risk of colliding with a cyclist, and it seems to me that if the respondent, therefore, had looked to the rear he would still, as a reasonable person, have inferred that he was taking a sufficient precaution by occupying a position on the road which was right at the edge of the useable portion of the carriageway. 22. It seems to me, therefore, that all the arguments advanced in support of the contention that the respondent was negligent and that his negligence contributed to his own injuries fail. I think that the learned judge reached the correct conclusion and for the reasons which I have given and, indeed, for the reasons that the learned judge gave, I am of opinion that the allegation of contributory negligence was not made out. In my opinion, therefore, the appeal should be dismissed.

JUDGE2 COX J. I agree with the reasons that have been given by the Chief Justice. The plaintiff respondent received two verbal warnings of the approach of the wide load - the first from the leading vehicle, whose passenger called out to him, "Long wide load following, get off the road", the second from a police motorcyclist, whose warning was to the effect, "Wide load following, keep to the edge" or "keep to the left". 2. Whatever the position might have been had the first warning stood alone, the second, by the police officer, could reasonably have been interpreted by the plaintiff as an instruction to move to his left-hand edge of the bitumen - if, indeed, he was not there already - and, more important, as an implied assurance that if he did that he would be safe. In the circumstances he was under no obligation, in my opinion, to look behind him, much less to move right off the bitumen. I would dismiss the appeal.

JUDGE3 MATHESON J. Notwithstanding his usual, well prepared and sincere submissions, I am not persuaded by Mr McCarthy that this court should interfere. I agree with the reasons of the learned trial judge and with the reasons of my brethren. I agree that the appeal should be dismissed.