Carter v Waugh No. DCCIV-99-30

CARTER v WAUGH
[2000] SADC 59

Judge Lowrie
Civil

In this action, the plaintiff seeks damages against the defendant because of her alleged negligent driving near Aldinga in January 1998. On that day the plaintiff was driving his large Honda motorcycle and came into collision with the defendant's car which was turning from the eastern side of the carriageway of Main South Road into a driveway on the western side of the road. The driveway is the entrance to a tearoom/ restaurant called the “Honey Grove”. The plaintiff has alleged he was overtaking the defendant’s vehicle when she turned with little or no warning across his path.
The plaintiff outlined that he is now 47 and has been driving motorbikes since the age of 16. At the time of the accident, he had what I would regard as the top of the range Honda touring motorcycle called a “Goldwing” motorcycle, some 1500 cc's. He was obviously a very experienced motorbike rider belonging to a number of responsible touring motorcycle clubs.
On this day, he said he was with a group of Telstra motorbike riders on a social outing. He was the rear motorbike, travelling there, in effect, to ensure that there would be no breakdowns of others on the trip. The plaintiff outlined he was not in any particular hurry and was driving south along Main South Road. The large group of riders had preceded him on their excursion to various parts south. He observed that there were two cars in front of him when he was some two or three kilometres from the Victory Hotel. There is a slight rise in Main South Road in that area and he was eventually travelling behind two cars.
The plaintiff said he was travelling initially at, I think, 80 to 90 kph. He came up behind the rear car, and observing the road was clear to the front and rear, proceeded to overtake. He said he may have reached a speed of about 105 kph in overtaking. He overtook the first car. However, as he was almost in the vicinity of the rear of the leading car, he suddenly observed, at that point of time, a faint off-side indicator light. He said it seemed to him to be very faint. At or about that time, that car turned across his path. He braked immediately on seeing the light, but could not avoid colliding with the rear passenger's door. The vehicle was then in its turn and no doubt his momentum was to the right. The plaintiff was thrown from his bike and suffered very substantial injuries.
As I say, the matter was before me to determine the liability. Often, in these cases, one has only the evidence of the relevant drivers. However, in this case, the driver and passenger of the trailing vehicle gave evidence.
I will deal with Miss Waugh, the defendant. She was driving a Ford motor vehicle. She outlined how, at that time, she was 18 or 19 and had her probationary licence for some nine months. She had proceeded east along Aldinga Road, stopped to allow vehicles to proceed, ensured the road was clear before turning right and proceeding along Main South Road. She said she may have reached a speed of 100 kph and was conscious in that time of being overtaken by a number of motorbikes. She was also conscious of a car behind her.
Miss Waugh was proposing to work that morning at the Honey Grove where she regularly worked over some years. She said, as was her practice, she would indicate her intention to turn right. Apparently there was a driveway to a property further back to the north. She said she so indicated her intention to turn at or about this driveway. She said she was aware of the nature of the driveway into Honey Grove, and as she approached it, she, in fact, slowed down and stopped. She had indicated, applied her brakes and stopped.
Miss Waugh said she had at no time seen the motorbike behind her. She had seen the car. She then commenced her turn in and towards the area of the driveway when she was suddenly struck by the motorcycle.
She was cross-examined about her evidence, particularly this allegation of stopping, and the course of the following car and her failure to see at any time the motorbike. She assumed that the car must have stopped behind her. She eventually said if she did not stop, she would have been crawling. I had the impression during the young lady’s evidence that there was a measure of reconstruction of the details of the accident.
In cases like this, one would naturally have to look very carefully at the evidence of both drivers. As I said, I did have reservations about Miss Waugh's evidence, particularly about the stopping allegation. This “stopping” was not suggested to the plaintiff or to the two other witnesses. I do place much reliance on the evidence of the two people in the car following Miss Waugh. It is not often there are independent witnesses. Their evidence is most important if not crucial. That evidence totally supports the plaintiff’s evidence.
Dealing with Mr Hodgson. He outlined how he was in the passenger seat. They had followed Miss Waugh to the Aldinga/Main South Road intersection where she waited, although he believed she had an opportunity to turn. That driving had all the hallmarks of perhaps a tentative driver.
However, he then outlined proceeding south, speeding up and they travelled behind Miss Waugh. They were travelling four or five car lengths behind her. Mr Hodgson had observed the group of motorbikes. He believed the speed of his car was about 100 kph. He knew that there was a motorbike behind, both because of its noise and his observation of the same. He confirmed his impression that they were suddenly coming up to the Ford. Clearly, at that time, they were both observing the Ford and nothing was apparent, except its sudden deceleration. Certainly, at that time, there was no indication of brake or indicator lights.
He said, as they then got within a very short distance, he thought they may well drive into the rear of the vehicle. He then saw this very faint indicator light. In fact, before that time, Ms Jackson, who was also most concerned about the course of the vehicle and indeed the manner of conduct of the driver of the Ford, said rather pithily to her partner “What the fuck is she doing?”. They did not know what course this driver was anticipating. The course of this vehicle would be either to pull off to the near side or to turn to the right. The course of the driver was uncertain. There was nothing to indicate a turn, just a sudden sharp deceleration. As Mr Hodgson said, he didn't know what was happening.
An important piece of his evidence was when he said:
“Q. As she went right, were you looking at what -
A...... As soon as I knew she was turning right, I looked over my right shoulder because I was aware the motorbike was behind us, and I knew that he was going to smack into her because we didn’t know what she was going to do, and I knew the motorbike wouldn’t have known what was going to happen.”
Ms Jackson confirmed that evidence, confirmed following the car and suddenly noting its sharp deceleration. She said she observed no brakes lights, no indicator lights and, suddenly, she observed this faint brake light of the car, the defendant's car, in effect, driving into the western lane.
Ms Jackson observed, or was conscious, of the bike coming up, and really there was little that he could do, and the incident occurred.
I find it impossible to criticise the nature of the driving of the plaintiff. He was not speeding. He was keeping a proper lookout. Certainly there was the sharp deceleration of the defendant's car, but that was without warning to him.
I find, and it has to be a finding, that there certainly were no brake lights visible on the Ford, and, the only light that appeared was the faint indicator light, indeed, at the point of turn. My finding would be that the light appeared at or about the time the defendant caused her car to be driven across the road into the course of the overtaking motorbike, a bike which she had never seen and never observed. There was a total failure of lookout by the defendant. One may have thought having been passed by a large number of motorbikes, she may well have been placed on alert. However, the defendant’s inexperience may have been to the fore. The indicator light was applied late, or, for some reason, was defective and not readily apparent until an observer was in close proximity.
However, the following car did take some evasive or defensive driving action, but the plaintiff was in no position to see the manner of the defendant’s driving. He was passing at a speed which was reasonable in all the circumstances, and, the sharp turn without warning across his path, was, to me, the sole causative factor of this collision. The defendant’s lookout was also totally defective.
I would not find the plaintiff’s driving in any way contributed to this accident.
Consequently, I make an award that the plaintiff recover his damages in full as against the defendant.

MR SWAN: I would apply for costs of proceedings to date on a solicitor and client basis based on an offer for consent filed by the plaintiff on 21 September last year which, in fact, was an offer to consent for 70%.

MR WARD: I'm mindful that an offer was made. I am not saying it wasn't, but I can't confirm that at this point. It's a matter that I can check for your Honour, but it's not evident on my brief. If it is, there's no dispute obviously.

HIS HONOUR: I will take it that was done. What I will say is if that was done, then the plaintiff is to receive his costs on a solicitor and client basis for this action, but I will give the parties liberty to speak to the minutes in 7 days.

MR WARD: Just one point on that -

HIS HONOUR: You get your costs, you get them -

MR SWAN: I think you get them from commencement.

HIS HONOUR: I think that would in that case.

MR WARD: The difficulty with that, and it might be a matter for address to your Honour later, is that the action is run on liability and quantum. If your Honour's order applies to the liability part of the file, that's what the offer applies to, and that's no problem, but if the plaintiff gets the costs of the quantum side of the case, which is yet to be determined, on a solicitor/client basis, that wouldn't make sense to me. The costs on the liability side, that's sensible.

HIS HONOUR: If you chaps can't sort that out, I'll go he.

MR WARD: The minute your Honour awards costs of the action everything is done on quantum and liability which would be beyond the scope of what was offered.

HIS HONOUR: Wasn’t the suggestion that we were going to test liability? I suppose quantum is around somewhere.

MR WARD: The medical evidence has been obtained by both parties; the usual work has been done on that I would assume.

HIS HONOUR: This action is got up solely on the basis of liability. I would have thought, quite frankly, the costs on the quantum for damages is a bit immaterial.

MR SWAN: That's right. The only other option I can see would be if your Honour simply reserved the question of costs with that indication. I suppose for the final judgment we can come back to your Honour -

HIS HONOUR: I will indicate that I would be prepared, in view of the offer, to make an order that the plaintiff receives its costs on a solicitor and client basis. I would assume in some way that this only relates to the question of liability and, indeed, if some difficulty arises between the solicitors in determining that, I will certainly arbitrate.

MR WARD: If your Honour makes that order, that's what -

HIS HONOUR: I make that order.

MR WARD: I'm happy with that.

HIS HONOUR: Leave to appeal to run from when the parties receive a copy of my extempore remarks.

[2000] SADC 59

8 May 2000