De Ieso v Cetojevic No. Scciv-01-1780

DE IESO v CETOJEVIC
[2002] SASC 34
Magistrates Appeal: Civil

PERRY J. (ex tempore) This is an appeal from the judgment of a magistrate following the trial of a claim for damages arising out of a road accident which occurred on Regency Road on 6 October 2000. Damages were agreed between the parties and the only question for the learned trial magistrate to determine was the respective degrees of fault of the parties. In the result, he held the defendant wholly to blame.
The accident happened in broad daylight on a fine day. The plaintiff, who is the respondent to the appeal, was the driver of a Commodore sedan motor car west on Regency Road. He was travelling in the most southerly lane, that is, the lane nearest the kerb. There are two lanes for traffic travelling in that direction, together with a third lane near the centre of the road which was intended for vehicles turning right from Regency Road into a road adjoining on the north side, namely Hassell Street.
For eastbound traffic there are two lanes in Regency Road.
The defendant, who is the appellant in this Court, was travelling south in Hassell Street intending to travel across Regency Road and then to enter another junction on the south side of Regency Road, namely, a junction formed by a street called Goodall Avenue. Both junctions, that is, of Hassell Street and Goodall Avenue, were right angled junctions to Regency Road but in their alignment between each other they were slightly displaced. Goodall Avenue lies a little further to the west. There was no overlap between the alignment of either of the two streets.
It follows that the appellant was intending to proceed diagonally across Regency Road between the two junctions. To take that course was negligent, as he owed a duty first to enter Regency Road from Hassell Street by turning right into Regency Road and then left into Goodall Avenue. He was following a course, however, which was not uncommon, there being a strong temptation, given the close alignment of the two adjoining streets, for drivers to pass from one to the other in a diagonal course.
Furthermore, he owed a duty to give way to traffic proceeding in either direction on Regency Road.
It was common ground that the appellant was confronted by a give way sign when he reached the conjunction of Hassell Street and Regency Road. His evidence that he stopped at the junction was not challenged. He then drove off, reaching a speed of the order of 15 to 20 kilometres per hour as he made his way across Regency Road. When he had almost entered or was just beginning to enter Goodall Avenue, the left-hand or passenger side rear corner of his vehicle was struck by the front of the car driven by the respondent.
It is clear from the evidence that the respondent saw the appellant at a late stage, although he had time to apply his brakes and swerve slightly to the left before the impact occurred.
Both drivers gave evidence. In addition, evidence was given by a witness, Andrew Lloyd.
Mr Lloyd was driving a car behind the respondent’s car in the same direction, that is, west on Regency Road. He estimated that he was four to eight car lengths behind the respondent’s car. He thought that his car and the respondent’s were both travelling at about the same speed, that is, 60 to 65 kilometres per hour.
Mr Lloyd caught sight of the approach of the appellant across Regency Road shortly before the collision. His evidence was:
“I did not see the Subaru (the appellant’s car) until it had entered Regency Road. We both braked about the same time. I was aware in an instant that there was going to be a collision ... the Commodore hit the Subaru in the left-hand rear of the car. The Commodore had started to brake but did not have an opportunity to lose speed from what I could see.”
The learned trial magistrate believed Mr Lloyd to be an accurate and observant witness.
The learned trial magistrate held, after considering the evidence, that the plaintiff had no reasonable chance to avoid the collision. In those circumstances, he held the appellant solely to blame and dismissed the appellant’s claim that the respondent was guilty of contributory negligence.
It is against that finding that the appeal is brought.
Mr Botten who appeared for the appellant contended strongly that given the width of Regency Road and the fact that the appellant must have crossed five lanes before reaching the point at which the collision occurred, the learned trial magistrate should have found that the respondent was guilty of negligence in failing to see the appellant earlier. He emphasised that it would not have taken much more in the way of evasive action for the collision to have been avoided altogether, given that the impact was borne between the front of the respondent’s car and the rear nearside corner of the appellant’s car.
Mr Botten pointed to the evidence of the respondent to the effect that when he first saw the respondent the latter was right in front of him. Until then, he had been concentrating his attention, that is to say, his lookout, straight down the road. He referred to the following passage in the respondent’s evidence:
“Q.Why did not you see him earlier.
A.Because I was concentrating, going in a straight line.
Q.Looking straight ahead.
A.Yes.”
Mr Botten further contended that if the witness, Andrew Lloyd, was able to see the appellant at what must necessarily have been a slightly earlier stage than that at which the respondent caught sight of him, there is no reason why the respondent, likewise, should not have seen him earlier than he did.
Mr Harradine, for the respondent, contended that even if the respondent had seen the appellant earlier, he would have been entitled to have assumed that the appellant was turning into Regency Road to go in the same direction. He further contended that too much reliance should not be placed upon a lay witness’s assertion that he did not see another car until it was right in front of him, and that one should interpret evidence of that kind to mean that he did not realise that there was any danger posed until the other vehicle had materialised as impinging on his course.
However, with respect to Mr Harradine, in my view the witness’s evidence ought to be taken more or less at face value. If the respondent had seen the appellant any earlier, there is no reason to suppose that he could not have recalled having seen him earlier and no reason to suppose he could not have described the appellant’s course, if he had done so.
Given that the accident occurred in broad daylight and given the absence of evidence as to any other traffic on the road, I am driven to the conclusion that if the respondent had been keeping a proper lookout, he should have seen the approach of the appellant at an earlier stage. If he had done so, and without wanting to make precise estimates of distance and speed, it seems likely that he would have taken evasive action earlier.
True it is, as Mr Harradine submits, he may well have thought that the appellant was intending eventually to proceed west in Regency Road, but he could not have been sure of that. A reasonably prudent driver in the position of the respondent would have recognised immediately the possibility that the approaching vehicle might present a threat to him, and that it might in fact be intending to enter Goodall Avenue or at least to proceed across Regency Road.
In those circumstances, a reasonably prudent driver in the position of the respondent, ought to have moderated his or her speed and maintained surveillance of the approaching vehicle until he or she could be certain that it did not pose a threat of a collision.
It follows, not without some hesitation on my part, that in my view the learned trial magistrate erred in failing to find that the respondent was guilty of a degree of contributory negligence.
On the other hand, it seems to me that the appellant was following a course and pursuing a manner of driving, which must mean inevitably that the major proportion of blame must be attributed to him.
He was following a course which as I have explained, was illegal, in cutting diagonally between the two junctions and he was clearly in breach of his duty of care in failing to give right of way to the respondent’s car. He not only had the respondent approaching, but also the car driven by Andrew Lloyd.
The appellant conceded that the vision from his left eye was somewhat impaired. He said in evidence that he had seen the two approaching vehicles, but it is clear that he must have misjudged either the distance which separated them, that is those cars and his car, or their speed. It is equally plain from his evidence that he did not maintain a lookout in the direction of the two approaching vehicles in order to ensure that he could cross their path safely.
In all the circumstances, I would attribute 85 per cent responsibility to the appellant and 15 per cent responsibility to the respondent.
I would quash the order under appeal and substitute an order that there be a finding of contributory negligence on the part of the respondent of 15 per cent, and that the damage suffered respectively by the appellant and the respondent be apportioned accordingly.
[AFTER LEAVING THE BENCH BRIEFLY WHILE COUNSEL MADE CALCULATIONS APPLYING THE PERCENTAGE TO THE AGREED DAMAGE]
Having heard counsel as to questions of arithmetic, the judgment under appeal is quashed and there will be substituted for it an order that the plaintiff have judgment against the defendant in the sum of $6,146.87 and that the defendant have judgment on his counterclaim for $955.77.
There will be one order as to costs in the Magistrates Court, that being that the plaintiff recover his costs against the defendant in that court of and incidental to the proceedings on the scale appropriate to a judgment for the difference ie $5,191.10.
As for the appeal, I order that the appellant recover the costs of and incidental to the appeal against the respondent which I fix in the lump sum of $750 plus the fee paid on lodging the notice of appeal.

[2002] SASC 34

31 January 2002