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.

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.
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.
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.
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.
The findings of the Magistrate to which I have referred were not challenged. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] SASC 291
Decision Date: 22 August 2000

CaseChat Overview and Summary

The case of Daly v Olsen involves a dispute over damages for personal injuries sustained in a motor vehicle accident. The plaintiff, who was riding a motorcycle, sought damages from the defendant, the driver of a van, after the two vehicles collided. The Magistrate found both parties negligent, apportioning 85% of the responsibility to the defendant and 15% to the plaintiff. The defendant appealed against the apportionment of responsibility.

The key legal issues in this appeal were whether the Magistrate correctly assessed the degree of contributory negligence on the part of the plaintiff and whether the apportionment of responsibility was appropriate. The court had to consider the duties of both parties and how these duties were breached in the circumstances leading to the accident. The court also had to consider the respective culpability of the parties and the relative importance of their actions in causing the damage.

The court found that while the defendant was negligent in failing to indicate a right turn and check for oncoming traffic, the plaintiff was also negligent in undertaking a dangerous overtaking manoeuvre without warning and at a high speed. The court held that the Magistrate had failed to give sufficient weight to the duty of the plaintiff to drive defensively and anticipate the risk of the van turning. The court concluded that the plaintiff should bear a greater share of the responsibility for the accident, ordering that the plaintiff recover 55% of the agreed damages.

The court allowed the appeal and set aside the Magistrate's order. In its place, the court ordered that the plaintiff recover agreed damages reduced by 45%. This outcome reflects the court's view that the plaintiff's contributory negligence was a significant factor in causing the accident.

Orders