COLLINS v STRATFORD - [2007] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLLINS v STRATFORD
[2007] SADC 80
Judgment of His Honour Judge Herriman
13 August 2007
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
Truck following car in township - collision as the car is executing a right-hand turn - credibility - liaibility wholly attaching to truck driver. Judgment for plaintiff for damages to be assessed.
Cocks v Sheppard (1979) 53 ALJR 591; Kambouridis v Heyn & Transadelaide [2000] SASC 361; Mugford v Ames (2000) 31 MVR 406, applied.

COLLINS v STRATFORD
[2007] SADC 80
Introduction

The plaintiff’s claim is for damages for personal injuries sustained by her in a motor vehicle accident on the Dukes Highway at Coomandook on 6 December 2002.
At the commencement of this trial in the Mount Gambier circuit, defence counsel sought an adjournment on the basis that the plaintiff’s solicitors had, on the evening before, provided updated psychiatric reports which so substantially changed the nature of the damages claim that the defendant would suffer substantial prejudice were he then forced to proceed.
Plaintiff’s counsel opposed any adjournment, but then provided me with an outline of his client’s case and how it had changed in the face of recent psychiatric opinion. It then became clear that the plaintiff’s case on damages was starkly different from that upon which it had approached trial.
Ordinarily, the interests of justice would have strongly favoured granting the defence application, but I was persuaded to allow the plaintiff to commence her case, and for these reasons:
(1)for several weeks prior to the hearing date, the plaintiff had been an inpatient at Glenside Hospital and had been undergoing electroconvulsive therapy –and, indeed, still was at the time of the hearing;
(2)her treating psychiatrist, Dr Chaudhary, had expressed the view that it was, in those circumstances, very important to her treatment that she be able to give evidence and progress her case – notwithstanding the ongoing treatment;
(3)it had been arranged in advance that the plaintiff’s two psychiatrists, Dr Chaudhary and Dr Gauvin, would be in Mount Gambier to give evidence in that week and that the defendant’s psychiatrist, Dr Begg, would be present as well to hear that evidence and give his own. There was thus a unique opportunity presented for these experts to hear one another, albeit that Dr Begg reasonably required further time to consider the new prognosis advanced by the plaintiff’s experts and to see the plaintiff again.
So I permitted the plaintiff to begin her case, but I left open the question of whether the defendant should then be forced to present and complete his case on quantum. In the event, Dr Begg did hear the plaintiff’s expert evidence, he completed a further examination of the plaintiff and he began his evidence. Having regard to what he said, however, I was persuaded that the defendant should not then be required to close his case on quantum. Accordingly, I stood the matter over for further consideration to 24 September 2007.
Even so, having heard the respective cases of the parties as to liability, I took addresses on that matter and will now make my findings as to that.
The circumstances of the accident
On the day of the accident, the plaintiff was driving a Nissan sedan between Keith and Adelaide. At about 11.30 a.m. she was in the process of making a right-hand turn into a toilet area on the northern side of the highway in Coomandook when a following prime mover and trailer, driven by the defendant, collided with the rear offside of her vehicle.
Both plaintiff and defendant say that, at the point of collision, the plaintiff’s motor vehicle was halfway across the centreline of the highway, which is at that point a single-lane highway proceeding in each direction, and was angled at about 45 degrees north of the direction of Adelaide-bound traffic. As well, the evidence demonstrates that the bull bar on the front of the defendant’s prime mover collided with the rear offside door of the sedan when it was in that position. The defendant explains this by saying that at the last moment he swerved to his right in an attempt to avoid the collision, but was unable to do so. It resulted in the plaintiff’s car being pushed some 15 metres or so off to the northern side of the highway, albeit that there is some dispute as to where precisely the vehicles came to rest. It may be inferred from all this that it was the nearside corner of the defendant’s bull bar which collided with the plaintiff’s car.
So much is not contentious, but of rather more importance is the competing evidence as to events which immediately preceded that impact.
On the plaintiff’s account, she was travelling at approximately 60 kilometres per hour in the township and was intending to turn right to access the toilets, which she knew (from a sign she had passed as she was entering the town) were off to the northern side of the highway. She says she put her right‑hand turn indicator on at a point about 100 metres short of the point of impact, moved over towards the centre of the roadway and began to slow down in order to make her turn. The collision then occurred.
On the defendant’s account, the plaintiff had overtaken his vehicle 100 “yards” prior to the 80 kilometre speed restriction sign as one entered the town and had then cut in front of him. The two vehicles had then proceeded, separated by a distance of two to three metres but at a common speed of 75 to 80 kilometres per hour, up to a point just short of the point of impact. The plaintiff’s vehicle then suddenly moved to the left off the highway (save for its rear offside wheel, which remained on the bitumen). In response, he moved his truck outwards to travel around that part of her car and he then saw the front passenger in the Nissan point across to the northern side of the roadway. The Nissan, with no more warning than one flicker of its right indicator lights, then turned to the right across his path and the collision occurred.
I will return to those conflicts later.
At that time, the plaintiff was travelling in the car with her mother and daughter. They were journeying from Mount Gambier to Adelaide.
Despite the relative sizes of the vehicles, neither the mother nor the daughter suffered any significant injury, nor did the defendant.
For her part, the plaintiff’s head came into contact with her door window and it appears to be uncontentious that she did suffer some physical injuries. They included a head injury and soft tissue injuries to her neck and shoulder, with accompanying symptoms.
All parties were taken to Tailem Bend Hospital, but only briefly, and after completing their trip to Adelaide and remaining there for a few days, the three of them returned to Mount Gambier in a hired car and the plaintiff returned to her employment as a shop assistant.
Discussion as to liability
The Nissan sedan belonged to the plaintiff’s mother, Anne Vause, and she had driven it as far as Keith but had then swapped driving with the plaintiff and had placed herself in the front passenger’s seat. The plaintiff’s daughter, Kirsty Vause, was sitting behind her grandmother.
For the purposes of these reasons, I will assume that the highway extends in an east-west direction as it passes through the town.
It is plain on any account, and I find, that prior to reaching the small township of Coomandook, each of the occupants of the Nissan wished to visit the toilet there. On Kirsty’s account, she and her grandmother had already discussed the fact that they each wanted to go. Mrs Vause did not recall those discussions, but she certainly wanted to stop for that purpose and, on the plaintiff’s evidence, she had, prior to reaching the town, asked the others if they wanted to go (she could not recall if they answered) and was, herself, planning a visit anyway.
Prior to approaching the township, the plaintiff did not know where the toilets were but her mother did, as she had used them before. She knew that they were off to the northern side of the roadway as one travelled generally west towards Adelaide, hence that it would become necessary to make a right-hand turn off the highway. She says she told her daughter as much.
The plaintiff, for her part, did not speak of that conversation, but had a clear recollection of seeing a toilet sign as they entered the town indicating that there was a public toilet 400 metres ahead and to the right. It is, indeed, common ground that there was and is such a sign. I will call it the “first toilet sign” and it is shown in the photographs Exhibit P2.
I am satisfied on all the evidence that, whether simply because of that observation or because of what she heard said in the car, or perhaps because of a combination of both, the plaintiff’s intention when she saw that first toilet sign was to travel the required distance and then make a right-hand turn off the highway in order to access the toilet.
That is not to conclude, however, that she would necessarily have appreciated exactly how and when she should prepare to make that turn. She had, on her own account, and indeed on the defendant’s account, then slowed to a speed of 75-80 kilometres per hour in response to a town speed restriction sign of 80 kilometres per hour which she had encountered on entering the town. I am further satisfied from the evidence and reviewing the photos (Exhibit P2), that that sign preceded the first toilet sign.
On all the evidence, it is then plain that there was and is a second toilet sign (“second toilet sign”) situated in the township proper, off to the left-hand side of the roadway but clearly visible to road users approaching from the east. It was and is placed directly opposite an open space abutting the northern side of the highway, at the back of which are the toilets. It points to show that the toilets are opposite its position.
Both the plaintiff and her daughter say they saw that sign before the car reached it.
For the plaintiff’s part, she says she saw it well in advance of the time when she had to make the right-hand turn, so that, when she was about 100 metres east of it, she switched on her right-hand turn indicator, moved her car further over towards the centre of the roadway and slowed to make that turn. Her daughter recalls that her mother slowed the car and, she specifically remembered, put the indicator on at a distance from the second toilet sign she was unable to estimate, but at a time which, she said, was more than five seconds before her mother actually began the turn. She recalled that clearly, she said, because she frequently suffered from travel sickness and preferred not to look out of the car very much.
There is a measure of consistency in those separate accounts of when the indicator was switched on, given the relative speeds and distances involved and the fact that the plaintiff’s car was slowing.
Mrs Vause did not recollect her daughter moving her car out to the centre of the road, nor did she notice whether or not any indicator was activated: she simply recalled her daughter slowing before they reached the second toilet sign and then turning to the right.
It was then put to each of those plaintiff witnesses and stated in evidence by the defendant that, at a point some distance short of the second toilet sign, the plaintiff had first diverged to the left, so that only the rear offside wheel remained on the bitumen (though it was not put to Kirsty that the car had mostly left the bitumen), before turning right. It was never put precisely whether the Nissan then stopped or whether it was moving and momentarily in that position as the defendant’s semitrailer approached it; indeed, even in the defendant’s evidence, he did not say whether the plaintiff’s vehicle then became stationary. However that manoeuvre was characterised, each of the plaintiff witnesses rejected the suggestion that the Nissan moved to the left at all and said that the only divergence was to the right for the purposes of the right-hand turn.
It was then put to all three of them by the defendant that just prior to entering the town, the plaintiff’s vehicle had overtaken the defendant’s truck, but none of them recalled that occurring.
Whether or not such manoeuvres occurred is thus of some significance in my consideration of the credibility of all of the liability witnesses.
As to the point of impact, the plaintiff and the defendant gave similar accounts. The plaintiff’s daughter, however, thought their car was then most of the way across the centreline and Mrs Vause thought they were all the way across it, although she acknowledged that she was not then taking much notice of the car’s position and was watching some workmen near the roadway.
I am satisfied and conclude on all the evidence that the accident happened when the vehicles were positioned as the plaintiff and the defendant described.
For the defendant’s part, he said that after seeing the plaintiff’s sudden divergence to the left and then to the right, he apprehended the risk of a collision so he braked heavily and swerved his vehicle to the right. Unsurprisingly, none of the plaintiff witnesses purport to describe what the truck did up to the point of collision, as none of them was aware of its presence until the very last moment.
There was then some consistency in the evidence as to what followed the impact. The plaintiff’s car was, in effect, shunted some distance by the semitrailer, across the eastbound carriageway and off the highway to the north. Their respective resting positions are shown in the photograph Exhibit D4.
It is a small matter, but comparison of D4 with the aerial photographs P1 and D11 clearly demonstrates, from the position of the gutter and other vehicles shown on the highway, that the resting position of the Nissan was not at the front of the local hall or church, as the defendant described it, but rather between the eastbound carriageway and a feeder road; that is to say, in the position described by the plaintiff and, in particular, by her daughter. That finding is also consistent with the defendant’s claim that the rear end of his trailer was on or adjacent to the eastbound carriageway.
The exact location of those resting positions is of no particular assistance in establishing quite how the accident occurred, but as the defendant strongly adhered to his evidence as to the Nissan’s resting position, it is of some relevance in the assessment of credibility.
There is then another matter which arises out of the plaintiff’s case, but which has some significance. On Kirsty’s account, some moments before the collision her attention was for some reason attracted to the presence of the truck and she called out to her mother, “Mum, truck” or words to that effect. The plaintiff and her mother corroborated that and the evidence was not challenged. It has potential significance in considering the suddenness with which the Nissan completed its 45-degree turn, as it implies that some brief time elapsed between the moment when the plaintiff began her turn and the time of impact; indeed, so much must also be concluded from the defendant’s claim that he had time before impact to brake and to swerve to his right. Those matters assume some relevance in the context of the defendant’s claim that at all times he was positioned two to three metres behind the Nissan.
There was then some conflicting evidence as to conversations which allegedly took place between the parties after the vehicles came to rest. On the defendant’s account, he went up to the Nissan whilst the three occupants were in it and asked them if they were hurt. The plaintiff and her mother together replied “Didn’t you see us?”, to which he replied “Yeah, didn’t you realise you’d just passed a truck coming into Coomandook?”. The defendant said as much at T/S 517, but subsequently said that he also remarked “then you cut straight across in front of me” (T/S 518).
The defendant did not purport to say that any of the occupants made any response to that assertion and, indeed, the evidence of all three plaintiff witnesses was that no such conversation then took place.
Curiously, the defendant’s counsel had put to the plaintiff’s daughter in cross-examination that the defendant had spoken to her and her grandmother at the scene and had said “Didn’t you see me, you just overtook me?” (T/S 113). The daughter had no recollection of any such conversation and it did appear to me to be a slightly unusual remark to make to two people who were obviously passengers.
Separately, the plaintiff said that when she was outside the car, the defendant said to her that before the collision she had gone to the left and then veered over to the right. The plaintiff said she had then chosen not to respond to that remark, albeit that she then rejected that that was how the accident occurred.
The defendant’s account of just what was said after the accident, when and to whom, was somewhat confusing but, at all events, I am satisfied, even though he did not say it in evidence, that at some point he did say to the plaintiff that she had turned left and then right and that the plaintiff had not responded to that suggestion.
Separately then, there was Kirsty’s evidence that the defendant said to her, after the accident, that he had taken off some of his load a few towns before and that the outcome of the accident was fortunate because, if his load had been heavier, he could have run over the car and killed them.
For her part, the plaintiff recalled the defendant saying to her that she was lucky that his truck was unloaded because if it had been loaded she would have been killed. She had thought that was a very confronting statement for him to make.
Those accounts conflicted with the defendant’s evidence. He said his truck was in fact fully loaded at the time of the accident and, impliedly, that he thus could have had no occasion to make any such remark at the scene.
On the evidence, I was not able to resolve those conflicting statements, which go to credit. I do note, however, that on the defendant’s account, he had checked his load some three towns earlier. I also note from the photographs that he was drawing a single, and not a double, trailer.
I have thus far focussed on the evidence of the plaintiff witnesses as to how the accident occurred, but I turn then to the evidence of the defendant.
He was very well familiar with the road, having travelled it on many occasions. He had received some information on that day that police were in the vicinity, so he was being particularly vigilant about his speed.
As he approached the 80 kilometre speed sign at the entrance to Coomandook, he slowed down and, in fact, was travelling at 80 kilometres per hour some “300 yards” before he reached it.
It was at that point then that he says that the plaintiff’s car passed him, travelling at a speed he estimated at 95 kilometres per hour.
He then went on to say that the two vehicles drove into the township together at a speed of between 75 and 80 kilometres per hour and so continued up to the point where the plaintiff went off the roadway to the left. Over that entire distance, he said, he was positioned some two to three metres behind the plaintiff’s vehicle.
Those claims appear to me to be matters of considerable significance.
It is common ground that the accident occurred at some point just short of the second toilet sign. That sign is, on all the evidence, 400 metres away from the first toilet sign. There was no evidence before me as to the distance then between the first toilet sign and the 80 kilometre zone sign, but from the photographs P2, it is evident that those signs were reasonably widely separated.

There is then the defendant’s claim that the plaintiff’s vehicle passed his approximately 300 yards prior to the 80 kilometre speed sign. When those distances are put together, it would appear, on the defendant’s evidence, that after the Nissan overtook him, he positioned himself some two to three metres behind it and that they together maintained a speed of between 75 and 80 kilometres per hour up to the point of collision and over a distance that must, by any account, have been well in excess of 500 metres. Separately, he said that the time lapse between when the overtaking was completed and the moment of the collision was two to three seconds (T/S 527).
Whilst he remained in that position behind the plaintiff’s car and at that speed, he said, her vehicle suddenly turned off the roadway to the left. As I have said, it is not apparent from his evidence that he was claiming she stopped, but he said he apprehended, at some point, that her rear offside wheel remained on the bitumen and he decided to drive around it.
At first in his evidence, the defendant said that prior to diverging to the left, the plaintiff’s vehicle gave no signal, but subsequently he said her indicator blinked three or four times before she drove off to the left.
At all events, he said he was able to steer his vehicle to the right in order to travel past it.
It was at this time that the defendant says he saw the front passenger in the Nissan pointing to the right-hand side of the roadway. On his account, he had a good view of the inside of the car because his driving position was elevated above the road surface by about six feet.
Whilst there was no evidence as to relative heights and lines of vision, common sense dictates that at that claimed height, the defendant would need to be some distance to the rear of a sedan car which was moving off the highway to its left, if he were to be in a position to see such a pointing manoeuvre by a front passenger.
That passenger was, of course, the plaintiff’s mother and in her evidence she said she had no recollection of pointing at all, but she did say to the plaintiff ahead of the turn, words to the effect of “‘That’s where we turn’, or ‘We turn right’, … ‘There they are’ … When I saw the sign, I said ‘That’s where they are’” (T/S 319).
Mrs Vause’s concession that she uttered those words is, of course, capable of corroborating the defendant’s claim that she also pointed over to the right‑hand side of the roadway, although it is consistent, as well, with the possibility that as they were approaching the second sign, which plainly indicated the location of the toilets, she spoke those words believing that her daughter, too, had seen it, hence that there was no need for her to point.
Kirsty said she had no memory of seeing her grandmother point. The proposition that the grandmother pointed was not put to the plaintiff herself.
I will also discuss these aspects of the matter in the context of the other evidence.
On the defendant’s account, the plaintiff’s car, being mostly off the road to her left, suddenly moved out across the road and in front of his path. He attempted to steer to the right to avoid a collision, but it was inevitable.
Just before the plaintiff commenced that manoeuvre to the right, he said, her right-hand indicator was activated. He gave seemingly conflicting accounts as to just how that happened. He first said that it blinked once (T/S 520), but later said that she was indicating to go to the right for five seconds (T/S 530).
I found those two pieces of evidence difficult to reconcile.
In conjunction with that evidence, the defendant marked on the photograph Exhibit D11 and on photograph Exhibit P2.4 the position of the plaintiff’s car off the roadway to the left and from which the right-hand turn commenced. On either marking, it was a position well short of the point at which an immediate right‑hand turn into the toilet car-park area might have been made and, on any appreciation of the scene, the plaintiff would have had to travel some considerable distance along the roadway before such a turn became possible. At T/S 540 the defendant first agreed that the position was roughly 100 metres short of the toilet block. He then immediately changed that, but did not provide any real estimation of the point from which the turn began.
At all events, however it came to be, the defendant was confronted with the need to take steps to avoid a collision. On his own account, he was able to heavily apply his brakes from his speed of 75 kilometres per hour and to steer his vehicle to the right or towards the centre of the road, albeit that he was unable to avoid the collision. Again, it is a matter of common sense that the application of his brakes and manoeuvring of his vehicle to the right could not have been possible were he positioned a mere two to three metres behind the plaintiff’s vehicle when she turned to the right, nor, indeed, is it conceivable that the plaintiff would have attempted such a turn at the suggested speed of 75 to 80 kilometres per hour.
There are some incidental matters which arose out of the defendant’s evidence which I do not find it necessary to make any findings about. There was a dispute as to whether the plaintiff borrowed the defendant’s mobile phone to make some calls after the accident. The defendant said she did and neither the plaintiff nor her daughter could remember that happening, although the plaintiff acknowledged she had used a telephone. It may well be that the defendant’s account of that is correct. Even so, it does not particularly assist me on the question of credit.
The defendant also asserted that the plaintiff told him that she was driving her boyfriend’s car. The plaintiff was not asked that and, in all the circumstances, it seems a most unlikely thing for her to have said. Again, it does not assist me particularly on credit or liability.
Finally, the defendant was challenged with reports he made to the police after the accident and as to what might have been said to him by police officers, but I disregard that challenge altogether as he did not accept what was put and no evidence was called on it.
Observations as to credit
I have set out in some detail the various accounts of the circumstances leading up to the accident given by Anne Vause, Kirsty Vause, the plaintiff and the defendant and I have done that because it is plain that the account provided by the plaintiff witnesses cannot be reconciled with the defendant’s description of the accident.
I should say that I found the account given by each of the plaintiff’s witnesses on the question of liability, to be clear and concise. Each was firm on the matters which she remembered and was prepared to acknowledge when her recollection of some matters was incomplete.
Whilst it became apparent that there had been some early discussion between them about the accident, I found it hardly surprising in all the circumstances and I was not persuaded there was any collusion or that such discussions led to any or to reconstruction in their various accounts. Indeed, each remembered different things. But on the events which immediately led up to the moment of the collision, there was a strong level of consistency. Each denied that the plaintiff’s car diverged to the left at all, and the plaintiff and her daughter recalled the plaintiff preparing to make a right-hand turn for some distance before it commenced and activating her right‑turn indicator.
None of them had any recollection of their vehicle passing the defendant’s truck at any time immediately prior to the accident. That is not to say that it might not have occurred at some time, but I would have expected, given the occurrence of the accident, that had such overtaking occurred just prior to then, at least one of them would have recalled it. I can think of no reason for any of them to falsely deny such an event. Conversely, I wondered why the defendant made that allegation and, notwithstanding its distance away from the point of impact, appeared to regard the claimed event as an important or relevant matter. On reflection, I concluded it was simply part of his extraordinary account of the behaviour of the vehicles after then, leading up to an accident which occurred, he said, within two or three seconds of that manoeuvre.
I turn then to the defendant. He presented as a person with an unshakeable faith in his version of the events which preceded the accident, yet certain of his evidence was internally conflicting and in certain respects patently absurd. I had no confidence in his reliability.
The sequence of events which he described obviously conflicted with the evidence of the plaintiff witnesses but, more significantly, it offended common sense. I will expand upon that in a moment, but I was left to wonder at his firm adherence to such an unlikely sequence of events. In the end, I did not conclude that he was seeking to deliberately mislead the court, but rather that his entire account was the product of subconsciously reconstructing the events preceding the accident in such a way as to exonerate himself.
The first and most extraordinary aspect of his evidence was his claim that the plaintiff overtook his truck short of the 80 kilometre speed limit sign and that he then stayed positioned behind her car by a distance of two to three metres up to the moment of the collision. At one point, he suggested that this meant he followed her vehicle for some two to three seconds before the accident, but plainly, even on his account, he had then travelled over 500 metres. That is nonsensical. Further, he said that over that distance both vehicles travelled, so separated, at a speed between 75 and 80 kilometres per hour.
If I were to accept that evidence, I would have no hesitation in finding that his manner of driving was grossly neglectful and that he failed to keep at a safe distance behind the plaintiff’s car. Further, it would leave no room nor time for the plaintiff’s car to have gone off the side of the roadway to the left and then re‑entered the roadway prior to the collision; it makes the defendant’s claimed sighting of Mrs Vause pointing over to the toilets extremely unlikely; it makes it very difficult to accept the likelihood that at that speed, the plaintiff might have performed the alleged manoeuvres whilst still maintaining control of her vehicle and apparently indicating in both directions, however briefly; it makes it unlikely that in the time permitted, the defendant would have been able to take evasive action to first steer around the plaintiff’s protruding offside rear wheel and then later brake and attempt to pass her whilst she is performing a right‑hand turn; finally, it seems inconceivable that the plaintiff could have turned to the left, almost off the roadway, and then turned to the right and reached a point halfway across the centreline before the actual collision occurred.
In the face of those claims, there is no need to call upon any fine calculations as to relative speeds, distances, reaction times or braking. I am satisfied that events simply cannot have happened in that way.
His evidence as to the operation of the plaintiff’s indicators also left much to be desired. At first, he said that there was no sign of the plaintiff’s intention to turn to the left, but later said that her left-hand indicator blinked three or four times. Then he said the right-hand indicator blinked once, subsequently that it blinked for five seconds. Separately, he purported to identify the position the Nissan reached off the roadway to the left and from which the plaintiff commenced her right-hand turn. By any measure, it was a point well short of the toilet area and, indeed, the defendant at first said it was 100 metres away, but he then corrected that without estimating what distance it was.
Although I have already touched on it above, his claim as to the relative speeds of the vehicles immediately preceding the collision is an extraordinary one. Effectively, he appears to have the plaintiff first diverging to the left and then making a right-hand turn at 75 to 80 kilometres per hour, which again offends common sense.
However the defendant’s evidence is viewed, it does him no credit. If the accident occurred in the manner he described, then plainly he was driving much too close to the rear of the plaintiff’s vehicle and I would have no trouble in concluding that that was the sole cause of the collision. That account of things is, however, so implausible that I simply do not accept it and I am thus left to wonder what credence I can give to anything the defendant said about the accident.
Finally, I turn to the conflicts over just what was said and by whom after the accident. I am satisfied that, whenever it occurred, he did suggest to the plaintiff that she had first veered left and then right. That comment does, I accept, reveal a measure of consistency in his account, but equally, the plaintiff’s decision not to respond to it because she rejected it, is consistent with her account.
Otherwise, none of the several conflicting accounts of what was said to whom at the scene really goes to the circumstances of the collision and, save for one observation, I am not persuaded they substantially discredit any of the witnesses.
That observation relates to the defendant’s account of what was said when he went up to the Nissan after the collision. I have already recounted that, but I should say that I am not satisfied that the defendant made any such statement to the mother and daughter. They reject it and it implies a version of events which I have dismissed out of hand, namely, that the passing of the truck by the plaintiff’s car (if it occurred at any time) was in some manner connected with and immediately preceded the plaintiff’s attempt to complete a right-hand turn. I cannot see how the defendant, even on his own version of events, could ever have regarded the overtaking as a relevant matter in the context of the collision and I am satisfied he never uttered those words. I can only attribute his insistence as to that conversation to some process of misguided reconstruction.
All in all, I had no confidence at all in the defendant’s account of the events which led to the collision. It was highly implausible, if not impossible, and were it accepted at face value, it condemned his position on liability, anyway.
It does not follow from this that I am able to make any precise findings as to his manner of driving before the accident as, of course, none of the plaintiff’s witnesses could comment on it. What I can conclude, however, is that the evidence of the defendant as to the circumstances which preceded the collision was so inherently unreliable that I had no confidence in most of what he said and I unhesitatingly preferred the evidence of the plaintiff and her witnesses as to the behaviour of the plaintiff’s car in the events leading up to the collision.
The defendant sought to attack the plaintiff’s evidence on the basis of her accident report (Exhibit D10), which was tendered without protest. In particular, he pointed to her diagram in that report, implying, as it did, that there were two westbound lanes and that her car had barely crossed the centreline from the outer lane at the moment of impact.
I was not much persuaded by that attack, and for these reasons:
(1)Plainly, the plaintiff erred in drawing two lanes, but that was not an issue at trial: on both accounts it was a single lane. Her error in this respect is merely one of memory and hardly damages her credit.
(2)At trial, both she and the defendant had her car halfway across the centreline at impact and when challenged over the drawing, the plaintiff conceded it was inaccurate, saying it was never intended to be precise.
(3)Most significantly, in her written description of the accident in that report, the plaintiff provided an account that was on all fours with her evidence and did not say or imply that she diverged to the left at any time.
Further, defence counsel argued that the position of the plaintiff’s car over the centreline at the point of impact, implied that she had begun her turn from the left or southern side of her carriageway, or from off the carriageway. I do not accept that submission. The extent to which the Nissan would have been able to achieve that agreed position and angle at the moment of impact (from the roadway position she described) would, it seems to me, necessarily have depended upon how far south of the centreline she was and upon her speed and the angle of her turn.
I am not persuaded that any useful conclusion as to her position on the roadway, prior to that turn, can be drawn from the angle and location of her car at the moment of impact.
I am satisfied and find that the plaintiff drove into Coomandook, reduced speed to 80 kilometres per hour at the entrance sign, indicated her intention to turn right at a point approximately 100 metres short of the second toilet sign, moved her vehicle closer to the centre of the road from that point and gradually slowed up to the point where she commenced a right-hand turn opposite the toilet area; that the collision occurred when she was halfway through that turn and straddling the centreline. At that moment, the defendant’s truck was either attempting to overtake the Nissan or otherwise attempting to take evasive action to avoid a collision.
I am satisfied that at no time after entering the township, did the plaintiff’s vehicle diverge to the left and, in particular, at no time did it drive off the bitumen to the left, nor suggest by indicators that it might do so.
Liability
It follows from my above discussion that I am satisfied as to the plaintiff’s account of how the accident occurred and I reject the defendant’s account of it.
In those circumstances, I am satisfied that the plaintiff conducted herself in a proper and careful way in preparing and signalling her intention to turn right at a distance of 100 metres from the toilets, in then moving her car towards the centre of the road and in slowing it as she approached the point of turn.
Whilst she was not aware at any relevant time of the presence of the defendant’s vehicle behind her, I am not disposed to find that she was neglectful in that as I am not persuaded, on the evidence:
(1)that he was, until the last moment, so close to her that she ought to have seen him and taken any additional steps to secure her safety or avoid an accident;
(2)that even had she seen him, she would likely have been able to take any effective action to avoid him, anyway.
The onus faced by the defendant in these particular circumstances, as the driver of a heavy vehicle and one following the plaintiff’s car, is a heavy one (see Cocks v Sheppard[1], Kambouridis v Heyn & Transadelaide[2], Mugford v Ames[3]) and I am not persuaded he discharged it properly or at all.
[1] (1979) 53 ALJR 591
[2] [2000] SASC 361
[3] (2000) 31 MVR 406
I am satisfied that the collision was wholly attributable to the defendant’s negligence in either failing to keep a safe distance behind the plaintiff’s car at relevant times, or in not keeping a proper lookout and taking proper or any account of her signalled intention to turn right, or in attempting to overtake her vehicle at a time when it had properly signalled its intention to turn right.
The defendant is entirely responsible for the occurrence of the accident and I am not persuaded that the plaintiff has in any manner caused or contributed to it by any negligence on her part.
I therefore find the defendant liable for the plaintiff’s damages to be assessed.