Bruce Edward CAASLAkE v the Nominal Defendant No. SCGRG 2875 of 1990 Judgment No. 3633 Number of Pages 9 Negligence

[1992] SASC 3633

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Negligence - Road accident case - liability only - contributory negligence - due search and enquiry. Motor Vehicles Act 1959s115. Pleasa v Griffiths
(1977) 15 SASR 434, applied.

HRNG ADELAIDE, 16-17 September 1992 #DATE 25:9:1992
Counsel for appellant:     Mr P A Cuthbertson
Solicitors for appellant:    Duncan Groom Hannon
Counsel for respondent:     Mr S J Hanus
Solicitors for respondent: Piper Alderman

ORDER
Judgment for plaintiff.

JUDGE1 ANDERSON J This matter proceeded solely on the issue of liability. 2. Quantum is agreed in the sum of $323,941.01. The issues which remain to be determined are:
    1. Liability.
    2. Contributory negligence.
    3. Whether the plaintiff has satisfied the due search and
enquiry requirement of Section 115 of the Motor Vehicles
    Act, 1959. 3. The subject motor vehicle collision occurred immediately south of the junction of Bluehills Road and Chandlers Hill Road at O'Halloran Hill at about 8.20 a.m. on 5 February, 1988. For present purposes it is convenient to assume that there Chandlers Hill Road runs north and south and is joined from the west by Bluehills Road. I take the location of the impact to be as described by point A in the plan attached to the Police Report, which was put into evidence. That plan shows the point of impact as about 10 metres south of the junction. This is a location which accords with the description given by the plaintiff and the defendant's witnesses Messrs. Bailey and Walker. The plaintiff's passenger, Mr Adams, was clearly mistaken when he had the point of impact marginally to the north of the junction. 4. To reach the point of impact from the Main South Road it is necessary to turn into Chandlers Hill Road via a long sweeping curve to the left for south bound traffic. The present roadway, as shown in the photographs forming the Exhibit P2, is different from the roadway as it existed on the day of the accident. On that day there was a narrow strip of bitumen approximately seven and a half metres wide allowing for a single lane of traffic to travel in each direction divided by a centre barrier lane. There were no kerbs to the left-hand side of the roadway for south bound traffic. Houses were established off the verge to the right as is shown in the photographs. After joining Chandlers Hill Road from the Main South Road there is a further slight bend to the left and then there is a straight section, as is shown in the photographs. Whilst the photographs depict that section in a more developed form than it was in February 1988, the general location has not changed. Mr Walker, who is familiar with the area, thought that the corner shown in photograph 2 as a bend to the left was more narrow in February 1988, but it was agreed for present purposes that the road then, as now, is, after that bend, a straight section until it disappears around a right-hand bend, as shown most closely in photograph 4. The plaintiff suggested that there were some other slight bends to the left between leaving the Main South Road and the final left-hand bend immediately north of Bluehills Road referred to above. There is some uncertainty in the evidence as to precisely what the road was like in 1988 in that regard, but in my view nothing turns on that in any event. 5. The collision in this case occurred, as is so often the case, unexpectedly, in a split second and, therefore, without the time to take calculated avoidance measures or to accurately gauge distances or speeds. Having regard to the nature of the cross-examination of the plaintiff and Mr Adams, the evidence of Mr Aust on behalf of the defendant and the submissions put by Mr Hanus, of counsel for the defendant, it is plain that the evidence in this case is to be considered in the light of the time-frame within which the events occurred. 6. The plaintiff said that he was driving his red Ford Falcon Utility, in which Mr Adams was a passenger, south on the Main South Road on the day in question. He travelled from his home in Broadview and had collected equipment for his work as a fencer at Colonel Light Gardens. He had a job to finish at a tennis court further south of the point of impact. It was raining as the plaintiff travelled on the Main South Road. The rain stopped before he turned into Chandlers Hill Road, which he said he did at a speed of about 55 kph. Prior to making this turn he saw a white Commer or Bedford van about 300 metres to his front. That van was also turning into Chandlers Hill Road. Thereafter, he lost sight of the van until he made the last left-hand bend immediately north of Bluehills Road and to which I have referred. As he came around that bend he had increased his speed to 65 or 70 kph and was travelling in fourth gear. It was subsequently put to him that he was in fact travelling as fast as 80 kph. He denied that on the basis that he was familiar with the area and knew that a short distance further on from the left-hand bend near Bluehills Road there was a quite sharp turn to the right which would require him to be not travelling at an excessive speed. In addition, he was carrying all his tools and work equipment which he was conscious of not damaging. In any event, as he came around that bend he saw the white Commer van stationary to the left of the roadway about 2 feet from the bitumen edge. Its left-hand indicator was active and its brake lights were operating. He said that he approached and moved his vehicle to the right-hand side of his laneway so as to avoid embarrassment if the driver of that vehicle opened his door. He said that it occurred to him that the van might be driven by a subcontractor who had business in a house on the right-hand side of the road. He said that when he was approximately three to five car lengths to the rear of the white van it suddenly moved forwards and onto the roadway at an angle of about 45 degrees to his direction of travel. The plaintiff was faced with a situation of emergency. He said he braked and pulled the wheel to the right. His car travelled to the right and upon crossing the centre line came immediately into collision with a yellow Mitsubishi van travelling in the normal fashion for north bound traffic towards the Main South Road. The front right-hand area of his utility collided with a similar area of the yellow van. The plaintiff did not see where the white van was at the point of impact, but thought that had he not moved to the right he would have collided with the driver's area of that van which at that time would have been blocking the plaintiff's way ahead. 7. Mr Carslake said that after the accident he lifted himself from his vehicle through the open window and as he stood on the roadway he saw the white van disappear out of view around the right bend at the end of the straight stretch of road shown in the photographs. There were no accurate estimates of how far away that bend was - perhaps between 100 and 200 metres. Subsequently, the van's movement after the impact was corroborated by the defendant's witness Mr Bailey. There is no doubt in my mind that the white van existed and left the scene in that manner. As much was conceded by Mr Hanus in his address. 8. Because of an injury to his right knee the plaintiff was not able to move from the roadway where he fell after leaving his vehicle. He was comforted there by Mr Walker, who had come to the scene from the E. and W.S. Department depot which is off the road to the east. 9. Mr Walker corroborated the plaintiff's anguish at the collision having been caused by the movement of that van. Thereafter the plaintiff and Mr Adams were taken to the Flinders Medical Centre. The plaintiff subsequently spent some months recuperating. He is now the recipient of an invalid pension. 10. Mr Adams also gave evidence. With what I take to be in the circumstances of this case minor discrepancies he generally corroborated the plaintiff's version of events. As I have mentioned, he was wrong about the precise location of the accident. He had the plaintiff's speed at closer to 80 kph as the utility came upon the stationary white van which Mr Adams had in a position similar to that described by the plaintiff. There was some slight difference in Mr Adams' estimate of distance from the white van when it moved, but he supported the plaintiff's evidence as to the manoeuvre undertaken, the necessity in his opinion for such a manoeuvre and the inevitability of an impact with the white van had such a manoeuvre not occurred. He thought the white van to be immediately to his left at the moment of impact. 11. Both these witnesses were subjected to detailed cross-examination and subsequently criticised by Mr Hanus in his address for being somewhat imprecise and inconsistent as between each other as to speed and distance. I would be absolutely amazed and most concerned were it the case that so long after an accident which occurred in a moment of time the evidence which two people gave of their observations would be, as to imprecise things, exactly the same. As to the significant matters they were in agreement. They moved off the Main South Road. They came around the final bend, saw the stationary white van, saw its then manoeuvre and described the plaintiff's manoeuvre leading to an immediate impact with the vehicle travelling in the opposite direction. As the plaintiff said, when being cross-examined about measurements and in this instance, being asked to estimate how far, "at the outside", he was from the stationary vehicle when it moved; "Outside measurement, I don't know for certain, I am having to guess. It all happened rather quickly, I wasn't able to take precise measurements." (transcript p.27) That the plaintiff's estimates are different from that of Mr Adams is in these circumstances hardly surprising. That the defendant should seek to set those estimates in concrete and from them, by expert engineering evidence, purport to conclude, because of the arithmetic impossibility of such estimated distances and speeds being correct, that therefore the plaintiff's evidence is fatally flawed is surprising. There is some uncertainty as to the speed at which the plaintiff was travelling. There is some uncertainty as to the distance his vehicle was from the van when the van moved from its stationary position towards and onto the roadway and it is not possible to ever know those measurements precisely. It is known, however, that the plaintiff was travelling at a speed which in normal circumstances would have taken him safely past the stationary vehicle. He was certainly travelling somewhere between 65 and 80 kph. The road limit was then 80 kph. That he managed to move his vehicle to the right and avoid impact with the van coming across the highway to his front in my view is evidence of the fact that he was sufficiently far back to make that manoeuvre. That is what is important, not whether or not he was correct or incorrect with estimates made in a fraction of a moment four and a half years ago and analyzed over the course of an hour and one half of cross-examination. 12. I found both the plaintiff and Mr Adams to be straight-forward and convincing witnesses. Their demeanour was excellent and I am firmly of the view that they were doing their utmost to relate to the Court the circumstances of the impact as best they could remember. It is apparent that the plaintiff has answered interrogatories in a manner in part different from some of the answers he gave in evidence. At least one of those interrogatories was unintelligible and the answers to the remaining interrogatories do not advance the criticism of the plaintiff's case at all in my opinion. Neither do they add to other criticisms of the plaintiff's case so as to increase the general efficacy of such criticism. 13. Clearly, the plaintiff in his report of the accident to the SGIC has described a scenario which, read literally, is different from that which was given in evidence. However, the evidence which he gave is consistent with the statement he made to the police in July 1988. It is of some note that the police saw fit, for reasons best known to themselves, not to speak to Mr Adams whom, one might assume, would have given them a similar version to that which he gave in evidence. Notwithstanding the literal interpretation of the words contained in Section 10 of Exhibit D1, being the report to the SGIC made by the plaintiff on 1 May, 1988 sought for by Mr Hanus, I am not prepared to conclude, having observed the plaintiff give his evidence, that what he intended when he wrote that report was different from the evidence which he has given today and the report which he made to the police some two months later. 14. I have come to the conclusion that the plaintiff's version of the facts is to be preferred having given due regard to the alternative version of the circumstances surrounding the collision put by the defendant through the witness Mr Bailey. Mr Bailey said that he was travelling to work at that time immediately behind the yellow Mitsubishi. He was familiar with the area. He said that he saw the white van on the roadway and that it was travelling towards him at about 20 kph as he came around the southern corner shown in the distance in photograph 4. He saw the red utility come off Main South Road onto Chandlers Hill Road at a speed he described as being at least 80 kph. He said he saw that vehicle come up behind the slow moving van, slow down and then simply move to the right as if it were going to pass it and immediately come into collision with the yellow van. 15. Whilst Mr Bailey was a clear and concise witness in evidence-in-chief, in cross-examination he was clearly shown to be somewhat confused and I concluded that he had based his evidence upon a combination of assumption and reconstruction. When compared with the quality of the evidence of the plaintiff and Mr Adams his evidence fails to impress in the important matters. Inherent in an acceptance of his evidence is that the plaintiff, notwithstanding the narrowness of the road, the hour of the day, the danger of such a manoeuvre and after he has slowed his vehicle, has, without looking, simply moved across the centre line of the roadway into the path of any oncoming traffic. It certainly is contrary to the usual and expected behaviour of drivers that such a life threatening manoeuvre should be undertaken for no good reason. 16. Accordingly, I find that there was parked on the side of the roadway on that day, at that time, an otherwise unidentifiable white Commer or Bedford van and that it was located as described in the evidence-in-chief of both the plaintiff and Mr Adams and that it then executed the manoeuvre described by them in their evidence requiring the plaintiff to move his vehicle to the right which led to the ultimate impact. It follows, therefore, that the responsibility for the impact rests with the driver of the unidentified white van. 17. Lest it be thought that I have not sufficiently considered the evidence of Mr Aust, let me say again that the assumptions upon which his evidence was based have no firm basis in the evidence. Most of the evidence which he gave is well-known and well-established in terms of reaction time and stopping time. If the assumptions upon which it was based were correct there clearly would have been an impact, accepting as I do that the white van was entering on to the roadway. I am not able to move from accepting the evidence given by the plaintiff and Mr Adams to the conclusion urged for by the defendant that, therefore, based upon their estimates, as there was not an impact, the white vehicle must have been undertaking some other manoeuvre and more particularly of the type described by Mr Bailey. In the circumstances of this accident, in my opinion, such logic is plainly fallacious. 18. I turn, therefore, to the question of contributory negligence. Mr Hanus has suggested that having regard to the nature of the road and that it was wet, the plaintiff's speed in any event was excessive and, having seen a vehicle off to the side of the road, and in particular acknowledging that someone might be about to get out of it, it was necessary for him to reduce his speed and the failure to do so has in part contributed to this impact. Again, I find myself able to agree with that submission. That the vehicle was off to the side of the road and that the plaintiff thought that he would move his vehicle so that if the door did open he did not come in contact with it does not establish contributory negligence. Irrespective of whether the plaintiff was travelling at closer to 65 kph or closer to 80 kph, and I do not accept Mr Bailey's estimate that it was even faster than that, nothing shows that the plaintiff was travelling at a dangerous speed in the circumstances. The road was wet, it was not raining. There was a suggestion on the defendant's case that there was water an inch deep running across the road but no evidence was led to establish that and the general inference from the evidence is only that the road was wet. The Police Report which contains an examination of the plaintiff's vehicle describes that vehicle as having "good tyres". As Mr Aust acknowledged, that is relevant to both braking and manoeuvrability. 19. It is trite to say that the plaintiff is entitled to assume, in hand with his obligation to drive defensively, that other users of the road will also behave according to the established rules of the road and generally not do impetuous and foolish things. Were that not the case then any motorist who passed a stationary vehicle on a wet road without slowing may find himself at some sort of risk. Clearly, that cannot be right. The orderly flow of traffic would all but cease. In my opinion, there is nothing that the plaintiff has done in the circumstances of this matter which has in any way contributed to either the collision or the subsequent loss and damage. What occurred, occurred in the fraction of a second. The decision made by the plaintiff was a decision made very much in the agony of the moment. It is not then appropriate, with the benefit of hindsight, to dissect that decision with a view to gaining a point here and a point there. I hold the accident to have been caused solely by the movements of the white van. 20. I turn then to the question of Section 115 of the Motor Vehicles Act, 1959 it being accepted that, notwithstanding what has gone before, should the plaintiff fail to discharge this statutory obligation then he is not able to succeed in any event. 21. It is agreed between the parties that the plaintiff first consulted a solicitor on 17 May, 1988. Thereafter, an advertisement was placed in "The Advertiser" on 6 July, 1988 seeking witnesses and none came forward. Formal advice was conveyed to the nominal defendant by letter from the plaintiff's solicitors on 24 May, 1988. Prior to 17 May, 1988 I accept that the plaintiff knew neither of the nominal defendant nor of his obligation pursuant to Section 115. 22. Mr Hanus submitted that the onus was upon the plaintiff to do what was reasonable in the circumstances by way of due search and enquiry and that meant that leads should be followed up promptly if it was likely that a result may be produced. 23. It is not in dispute that what is reasonable in the circumstances is a question of fact in this cause. I have regard to the propositions set out by King J (as he then was) in Pleasa v. Griffiths (1977) 15 SASR 434 at 442. 24. The plaintiff was taken to hospital and was discharged on the same day for reasons beyond his control. He lived with his neighbours for some weeks before he returned to his house where he continued to be cared for by the person referred to in the evidence as Ingrid. He reported the accident to the SGIC on 1 May, 1988. He saw his solicitor some sixteen days later. Whilst the plaintiff was not specifically asked, it might be assumed that he was aware of his obligation to report the accident to his compulsory insurers and that he did so at the earliest opportunity. This is consistent with his evidence that it took him some weeks before he was sufficiently mobile to be able to undertake activities away from his home. Equally consistent is the date upon which he saw his solicitor. He only then became aware of the obligation cast upon him by Section 115. Thereafter the advertisement was placed in the paper and Mr Bailey was interviewed as was Mr Adams. 25. Mr Hanus' principal and only real criticism of the activity of the plaintiff or his agents in relation to this obligation was his failure to have investigated the possibility that the driver of the white van may indeed have been a subcontractor who, on the day in question, was to do work at a residence on the opposite side of Chandlers Hill Road from where that vehicle was seen by the plaintiff and Mr Adams to be stationary immediately before the collision. This is something Mr Hanus submitted the plaintiff should have followed up because it may have produced a result and the failure to do so is fatal to the plaintiff's claim in that it amounts to not having discharged his obligation to make due search and enquiry pursuant to the section. 26. I accept the submission of Mr Cuthbertson, of counsel for the plaintiff, that the plaintiff was delayed for some time because of the nature of his injuries. Some mention was made by him of the question of prejudice to the defendant but as only the plaintiff has an onus upon him prejudice is not relevant. I agree with Mr Cuthbertson that having regard to the absence of some information forthcoming from either Mr Adams or Mr Bailey nothing other than an advertisement in the daily paper could realistically be done. In that regard any other search would have been ritualistic and futile from the outset and thus not necessary. 27. Mr Cuthbertson submitted that the failure of the plaintiff to visit the houses in the vicinity of the collision does not amount to failure by him to discharge his obligation. It is plain from the evidence that the thought that the vehicle may have belonged to a subcontractor went through the mind of the plaintiff a moment or two prior to the emergency circumstance arising. It was in effect mere speculation. It was not, Mr Cuthbertson submitted, what could be called a concrete clue. Whether the plaintiff was right in that assumption or whether the driver of the white van was, for example, doing nothing more than checking a delivery address will never be known. But certainly he moved off to continue on his southward journey. 28. In the circumstances of this case I am satisfied that the plaintiff has discharged the onus cast upon him by Section 115. 29. Accordingly, the plaintiff is entitled to judgment in the sum agreed. 30. I shall hear counsel as to any necessary consequential orders.