Daly v Olsen No. Scgrg-00-554

[2000] SASC 291

DALY v OLSEN
[2000] SASC 291

Magistrate’s Appeal

1................ MARTIN J......... (Ex tempore)     This is an appeal by a defendant in proceedings before a Magistrate in which the plaintiff sought damages for personal injuries arising out of a motor vehicle accident.  The Magistrate found that the defendant was negligent, but also found that the plaintiff was guilty of contributory negligence.  He ordered that the plaintiff recover 85 per cent of his agreed damages.  The defendant appeals against the apportionment of responsibility.

1. The accident occurred on 31 December, 1997.  The defendant was driving a van in an easterly direction along Norfolk Road, Marion.  The plaintiff was riding a motor cycle in the same direction, but behind the defendant’s van.  As the plaintiff attempted to overtake the defendant’s van, the defendant commenced executing a right turn and the vehicles came into collision.

2. Norfolk Road was a road designed to carry a single lane of traffic travelling in either direction.  It was divided in the centre by a solid white line.  No evidence was given as to the width of the road, but it appears to have been common ground that if a car was parked on one side of the road, a vehicle passing such a car would be very close to or upon the white dividing line.

3. The Magistrate found that as the van approached the area of impact, it was travelling at a very slow speed, which was probably less than 10 km/h.  His Honour also described the speed as “walking pace”.  The van was positioned in about the centre of the carriageway for eastbound traffic.  His Honour accepted the evidence of the plaintiff that he was initially travelling at about 60 km/h, but upon observing the van he slowed to about 40 km/h.  At that lower speed he was, nevertheless, rapidly closing upon the van.  If the road ahead was clear, it was reasonable and safe to overtake the van if the van continued along its path.

4. The Magistrate accepted the evidence of the plaintiff that he indicated his intention to overtake the van and crossed the white centre line to execute the overtaking manoeuvre.  His Honour found that as the plaintiff commenced overtaking he was travelling at about 50 km/h.  At the moment the motorcycle was about level with the back of the van, the defendant commenced the right turn and the van moved across the path of the plaintiff causing the impact.  His Honour accepted the evidence of the plaintiff that no indicator light was operating at the time he commenced to overtake the defendant’s van and that no brake light was operating at that time.  He found that the defendant commenced the right turn without warning at a time when the plaintiff had committed himself to the overtaking manoeuvre.  His Honour also found that the defendant commenced to make the turn without checking to ensure that the road behind him was clear.

5. The findings of the Magistrate to which I have referred were not challenged.  It was open to his Honour to reach those conclusions.  Similarly, the finding that the defendant was negligent is not challenged.  Counsel for the defendant argued, however, that the bulk of the responsibility for the accident rested with the plaintiff.

6. In finding that the plaintiff was guilty of contributory negligence, the Magistrate recognised that the overtaking manoeuvre took the plaintiff to his incorrect side of the road and that overtaking in those circumstances was “an inherently dangerous manoeuvre”.  He found that as the van was travelling at an unusually slow speed, the plaintiff should have kept the van under very close observation.  His Honour was also of the view that as the van was travelling very slowly when it commenced to turn, the plaintiff had sufficient time to sound his warning device and, at such a slow speed, the defendant could well have stopped.

7. The Magistrate referred to Knowles v Dubla, (unreported SASC, S6047 delivered 10 February, 1997) in which the circumstances of the collision were similar to those before the Magistrate.  The Full Court declined to interfere with an assessment in which it was ordered that the turning driver recover 65 per cent of her damages.  In other words, if the following driver had sought damages, the award would have been reduced by 65 per cent.  The turning driver had given ample indication of her intention to turn right and had reduced her speed to walking pace in order to execute the right turn.  The turning driver was aware that the other vehicle was approaching from behind and her negligence was in not looking again before she turned.  Doyle CJ observed that the following driver should have been more alert for what occurred or might occur and that the duty of the following driver to keep vehicles travelling in the same direction under observation was a duty that resulted in a greater allocation of responsibility to the following driver than the duty upon the turning driver to check vehicles behind before executing the right turn.  The Magistrate correctly distinguished Knowles v Dubla because the defendant before him did not give any indication of his intention to turn right.

8. The slow speed of the defendant’s van should have been a clear warning to the plaintiff that the van might stop or execute a manoeuvre to the left or right.  Generally speaking, there is a heavy duty upon a following vehicle to anticipate that a vehicle in front may stop or change direction without warning  (cf Mugford v Ames [2000] SASC 241). Equally, there was a duty resting upon the defendant to take reasonable care to avoid foreseeable injury to a driver of a following vehicle, including inattentive drivers. It was the duty of the defendant to give adequate warning of his intention to turn right and to check that he could do so without putting a following driver at risk of injury.

9. The task of reducing the damages payable to the plaintiff pursuant to s 27A of the Wrongs Act 1936 requires the Court to compare culpability and the relative importance of the acts of the parties in causing the damage (see Hooker v Grinham, South Australian Full Court, unreported Judgment No. S6424, delivered 5 November 1997).  An appeal court should not interfere with the assessment of a trial court unless the decision is plainly wrong.

10. The major cause of the dangerous situation which led to the collision was the failure of the defendant to indicate in advance that he was about to execute a right turn (cf Broadhead v Maybury (1988) 7 MVR 555). However, the possibility of a turn was evident from the very slow speed and, as I have mentioned, there is a heavy duty resting on the drivers of following vehicles to drive defensively. In the face of the apparent risk that the van would diverge to its right, the plaintiff undertook the passing manoeuvre at about 50 km/h and without sounding any warning of his approach.

11. In all the circumstances, in my opinion the Magistrate has erred in failing to give sufficient weight to the duty resting upon the following driver and the culpability of the plaintiff.  An apportionment of 15 per cent against the plaintiff is manifestly inadequate.  In my opinion the plaintiff should bear 45 per cent of the responsibility for the accident.

12. The appeal is allowed and the order of the Magistrate is set aside.  In substitution for that order, I order that the plaintiff recover agreed damages but reduced by 45 per cent.