Burnside v Kritikos - [2007] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BURNSIDE v KRITIKOS
[2007] SADC 71
Judgment of His Honour Judge Boylan
26 June 2007
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Plaintiff suffered injuries in road accident - rear end collision. The plaintiff drove out from the kerb and across the carriageway to do a U-turn. The defendant's vehicle collided with the rear of the plaintiff's vehicle when the plaintiff was stationery and about to turn. Liability apportioned 85% against the defendant.
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311, applied.

BURNSIDE v KRITIKOS
[2007] SADC 71

This case is about a car accident. Mr Kritikos drove his taxi into the back of Mr Burnside’s utility. Both men were injured. Mr Burnside now claims damages from Mr Kritikos but I am not concerned with the amount of any possible damages. I must decide only whether Mr Kritikos was negligent and whether or not Mr Burnside, by failing to take care for his own safety, contributed to his injuries. Because my answer to both questions is “yes” I am left with a third question, namely, to what extent did Mr Burnside contribute to his injuries? I shall return to that third question after reviewing the evidence of the three main witnesses and setting out my finds of fact. But first, to set the scene, I mention some undisputed matters.
The accident happened at about 11.45 on the morning of Tuesday, the 5^th of November 2002 on Torrens Road at Woodville not far from its intersection with Woodville Road. The day was fine and dry. The bitumen road surface was in good condition. Both vehicles were mechanically sound.
Torrens Road is a main arterial road running south-east to north-west. It is easier to refer to it as running generally east-west, from the city to the sea. On both sides of its intersection with Woodville Road, Torrens Road comprises one carriageway each for east and west-bound traffic. Those carriageways are divided by a wide median strip. Each of the carriageways consists of two lanes divided by a broken white line. On the southern side of Torrens Road, the left -hand lane is wider than the right-hand lane allowing room for cars to park at the kerb. About 75 metres west of the intersection, there is a shop on the southern side of Torrens Road. Opposite the shop, the median strip dividing the carriageways begins to narrow so that, a little west of the shop, it has become a thin concrete ridge. The narrowing of the median strip allows for the creation of a right-hand turn lane for vehicles turning right from Torrens Road into Sheridan Street which runs north off Torrens Road.
Mr Burnside’s evidence
Mr Burnside was almost 48 at the time of the accident. He worked as a plasterer. On the day of the accident he was early for a job in the Woodville area and decided to buy some lunch. After driving north along Woodville Road, he turned left at its intersection with Torrens Road and drove west down Torrens Road until he came to the shop. He intended to buy his food and then go back in the direction from which he had come; that is, back towards the city. That was the way back to the job. He parked his one-tonne tray-top utility immediately outside the shop, went in, bought food and a drink and then went back to his vehicle. He walked behind it to get to the driver’s door. He got in and then checked the traffic in his rear-view and driver’s side mirrors. He saw two vehicles approaching the intersection of Torrens and Woodville Roads but still well beyond it, on the eastern side of it. One of those vehicles was Mr Kritikos’s taxi and the other was a white car travelling next to the taxi. Having checked his mirrors, Mr Burnside turned on his right hand indicator.
Mr Burnside pulled out a very short way from the kerb. He then stopped and looked over his right shoulder to check the traffic coming behind him. There were only the taxi and the white car, both still on the far side of the intersection. He began to drive slowly out from the kerb at an angle of about 45°. He was heading for the gap in the median strip which allowed traffic to turn right into Sheridan Street. He had only gone a very short distance when he saw a boy running across the road a metre or two in front of him. He stopped and the boy safely crossed. Mr Burnside then went to drive on, still at an angle, but as soon as he did so he noticed a pedestrian, Mr Nettleton, standing at the concrete ridge of the median strip. Mr Nettleton was pushing a stroller with a young child in it. According to Mr Burnside, Mr Nettleton went to cross and Mr Burnside stopped again, to let him do so. Mr Nettleton was then about one metre from Mr Burnside. He was on the concrete ridge with the stroller in front of him in the right-hand turn lane. Mr Nettleton took one or two steps. Mr Burnside’s memory then falters. He said that he felt a bang and that his next memory was of “floating” in his car down Sheridan Street were his car hit a stobie pole.
I pause to mention that there is no dispute that Mr Kritikos’s taxi ran into the rear of Mr Burnside’s utility which, in turn, was forced into the path of traffic coming up Torrens Road in the east-bound carriageway. One of the cars travelling in that carriageway collided with Mr Burnside’s vehicle forcing it into Sheridan Street.
Shortly after the accident, Mr Burnside walked from Sheridan Street back to the scene on Torrens Road. By then a police officer had arrived and was speaking with Mr Kritikos. Mr Burnside went up to them and asked if the boy and the man with the stroller were all right. Mr Kritikos said “There was no-one here at all”.
Mr Burnside maintained that his car was at an angle from the time he pulled out from the kerb, but that he straightened up a little when he saw Mr Nettleton; then turned on a slight angle, and then straightened again. He said that, at the collision, most of his vehicle was in the right lane. The front right hand corner was in the right-hand turn lane; none of his vehicle was in the left-hand lane.
Mr Kritikos’s evidence
Mr Kritikos’s account is very different.
He said that he had begun driving at about 6 o’clock on the morning of the accident and that he had had some breaks from driving, including a break for morning tea. He had picked up passengers at the Arndale Shopping Centre and was driving them along Torrens Road to Pennington when the accident happened.
He did not have to stop at the traffic lights at the intersection of Torrens and Woodville Roads. When he was at or near that intersection, he first noticed Mr Burnside’s utility. It was then a few metres beyond the shop, about three car lengths, and was taking off slowly in the left lane. The right hand indicator was not on. Mr Kritikos said that “from instinct” he took his foot off the accelerator. He was then driving at about 55 kilometres an hour. As he was approaching the utility, it turned at an angle of about 45°, cutting suddenly in front of him. He had no time to see it turning. He had thought that it was going to continue to travel west in the left lane of Torrens Road. As soon as he saw the utility in his path, Mr Kritikos braked but it was too late. He agreed that he may have swerved slightly to the right in an attempt to avoid the collision. The front left- hand side of his car collided with the rear right-hand corner of the utility.
Mr Kritikos said that he was not distracted, by his passengers or by anything else. He said that the accident occurred because, suddenly and without any indication, Mr Burnside cut across the lane in which Mr Kritikos was driving. He said that at no time did he see either Mr Nettleton with the stroller or the boy who crossed the road. He did not notice if there was a car travelling roughly alongside his taxi as he approached the scene of the accident.
The Independent Witness’s Account
Mr Nettleton was the only other witness called who was present at the scene. He was about 26 at the time of the accident and lived a couple of streets away from the scene of it. He sometimes babysat the sons of a friend of his. They were Brett, about 11 at the time, and Joseph, about 18 months, who was in the stroller. They were on their way to the same shop at which Mr Burnside had just bought his lunch. Mr Nettleton and Brett crossed the east-bound carriageway of Torrens Road at about the eastern end of the right hand turn lane. Mr Nettleton stopped at the median strip to check for west-bound traffic. The stroller was actually on the strip with Mr Nettleton standing behind it on the east-bound carriageway of Torrens Road. Brett was next to him. Mr Nettleton looked and saw two cars on the west-bound carriageway but they were both on the other side of the intersection. Those cars were Mr Kritikos’s taxi and the white car. Mr Nettleton thought that he had plenty of time to finish crossing Torrens Road. As he went to do so, Brett ran across, safely getting to the other side, but Mr Nettleton saw the utility pulling out from the kerb and heading towards him at an angle. He stepped back and waited for Mr Burnside’s utility to go past him. Mr Nettleton was then right on the ridge and the pusher was in the right-hand turn lane. The utility passed him. When it did so it was about a metre from him and partly in the right-hand lane and partly in the turning lane. Mr Nettleton then looked to his left, towards the city, to check for oncoming traffic. He saw the taxi and the white car. They were then passing a bus stop a little east of the shop. The taxi was slightly in front of the white car. The taxi passed Mr Nettleton who heard it collide with Mr Burnside’s vehicle. He did not see that collision but he did turn and see the second collision when Mr Burnside’s utility was struck by a vehicle travelling east on Torrens Road. Mr Nettleton then walked on to the shop where he and Brett made their purchases and, it seems, went home. They were not about when Mr Kritikos was speaking with the policeman and had left the area when Mr Burnside went into the shop looking for them after he had spoken with the policeman.
What evidence should I accept?
There were aspects of the evidence of both Mr Burnside and Mr Kritikos which make me wary of relying upon it unless there is support elsewhere. Mr Burnside readily admitted that he has no memory of events which occurred in the minutes after the accident. On some points, his evidence is unsatisfactory about events immediately before the accident. He contradicted himself about whether he intended to do a U-turn or to turn right into Sheridan Street. Initially, he said that he intended to do a U-turn. In cross-examination, he said that he was going to turn right into Sheridan Street and find his way back towards his job by going through the back streets. His evidence about straightening his vehicle twice before the collision does not make sense. There was no need for him to straighten twice. I think that he has reconstructed some events.
A number of matters make me particularly wary of Mr Kritikos’s evidence. First, he insisted that, when he first saw the utility, it was some metres west of the shop, about three car lengths. I cannot accept that evidence. There was no reason for Mr Burnside’s vehicle to have been in that position. As there were no other cars near the shop, Mr Burnside would have parked immediately out the front of it, as both he and Mr Nettleton say. Nor was there any need for him to travel west in the left lane after pulling out from the kerb. The obvious course for him was to drive at an angle straight from the kerb towards the gap in the median strip. Again, both Mr Burnside and Mr Nettleton say that that is what happened. Secondly, Mr Kritikos saw neither Brett nor Mr Nettleton with the stroller. Brett ran across the road in front of Mr Kritikos and Mr Nettleton was standing in the middle of the road as Mr Kritikos approached. Thirdly, Mr Kritikos says that the utility turned suddenly from the left lane, across the road . If Mr Kritikos were correct, the driver of the white vehicle would have had to brake, and brake hard, to avoid a collision. There is no suggestion that the driver of the white car was embarrassed in any way.
I accept Mr Nettleton’s evidence and, where it differs from that of Mr Burnside and Mr Kritikos, I prefer it. Mr Nettleton was an independent witness, he had refreshed his memory by visiting the scene shortly before the trial and he was unaffected by what he saw and heard. He had a drug problem in 2002, but there was no suggestion that he was affected by drugs at the time of the accident or that his memory was impaired by his former drug use.
On one disputed issue, Mr Nettleton could not help. He could not say whether or not Mr Burnside’s indicator was on. I accept Mr Burnside’s evidence that it was his practice to indicate when pulling out to turn. I reject Mr Kritikos’s evidence on this point. Given my findings, Mr Kritikos would not have seen whether the indicator was on or not.
Findings of Fact
I find the following: Mr Burnside parked immediately outside the shop. When he pulled out from the kerb, he headed, at an angle, for the gap in the median strip. He checked his mirrors once before pulling out and he looked back over his right shoulder once. He did not check the traffic behind him again. The taxi was then east of the intersection. Mr Burnside’s indicator was on. He stopped only once, for Brett to cross. He did not stop again for Mr Nettleton. As he drove towards the gap, he intended to do a U-turn and drive back up Torrens Road. Owing to the size of his vehicle, he intended to give himself a wide berth to do that U-turn and, for that reason, he kept his vehicle almost wholly in the right hand lane. At the collision, none of his vehicle was in the left lane. As Mr Kritikos approached, his taxi was slightly ahead of the white car, travelling at no more than 60 kilometres an hour and wholly within the right hand lane. As both cars passed him, Mr Nettleton was at or on the concrete ridge and the stroller was wholly in the right turn lane. Neither Mr Nettleton nor Joseph, in the stroller, was ever in any danger. Mr Burnside’s utility was stationary, or near stationary, and almost wholly in the right-hand lane preparatory to making a wide U-turn from that lane into the city-bound carriageway of Torrens Road. He had to wait to turn behind oncoming traffic.
Almost immediately before the collision, Mr Kritikos swerved to the right to avoid the utility. He tried to brake, but there was no time to brake effectively. The front left corner of his car collided with the rear right corner of the utility. Its collision with the taxi forced Mr Burnside’s utility into the east-bound carriageway of Torrens Road where it collided with an oncoming vehicle.
Was Mr Kritikos negligent?
It follows from my findings that Mr Kritikos was negligent. It is about 120 metres from the intersection to the point of impact, which I find was in the right- hand lane adjacent to the western end of the turning lane. It would have taken Mr Kritikos about seven seconds to cover that distance at 60 kilometres an hour. During that time, Mr Burnside’s large utility, with its indicator on, was driving across the carriageway of Torrens Road. But Mr Kritikos did not see it, on his own admission, until immediately before the collision. There can only be one reason for his not having seen it: for at least seven seconds he was not concentrating on the road ahead of him. He had a duty to keep a proper lookout and that duty included a duty to drive defensively, that is, to keep a lookout for potential dangers on the road ahead. His failure to keep such a lookout was a departure from the standard of care of the reasonable driver.
Was Mr Burnside contributorily negligent?
Mr Burnside was contributorily negligent because he failed to take proper care for his own safety when he stopped, or nearly stopped, his vehicle almost wholly in the right hand lane. By doing so, he created a hazard. Following drivers would not expect a vehicle to be in that position preparatory to turning as there is a designated turning lane. A prudent driver would have positioned his vehicle wholly within the turning lane.
Apportionment
I must apportion liability more precisely. That involves my comparing the culpability of both Mr Burnside and Mr Kritikos, that is, assessing their degree of departure from the standard of care of the reasonable driver, and the relative importance of the acts of each of them in causing Mr Burnside’s injuries. I must compare the whole conduct of each of the parties in relation to the circumstances of the accident. (See Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311). I have done that.
As I have said, Mr Burnside contributed to the collision by creating a hazard. That was a departure from the relevant standard of care. But Mr Kritikos failed to see that hazardous situation unfolding in front of him as he drove for 120 metres from the intersection to the point of impact. That was a gross departure from the standard of care of the reasonable driver. In my view Mr Kritikos was 85% responsible for the collision and Mr Burnside 15%.
There will be judgment for Mr Burnside for 85% of his damages to be assessed.
I shall hear the parties about costs.