Dianne White v Dean Neville Atkinson No. SCGRG 2816 of 1991 Judgment No. 3610 Number of Pages 4 Negligence Road Accident Cases

[1992] SASC 3610

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), OLSSON(2) AND MULLIGHAN(3) JJ

CWDS
Negligence - road accident cases - Apportionment of responsibility - driver of motor car making left-hand turn from outside lane in front of bus in response to invitation from bus driver to do so - cycle travelling on inside of bus in inside lane - view of both drivers obstructed by bus - collision as they emerged from cover of bus - 50-50 apportionment upheld on appeal.

HRNG ADELAIDE, 9 September 1992 #DATE 9:9:1992
Counsel for appellant:     Mr G G Holland
Solicitors for appellant:    Stanley and Partners
Counsel for respondent:     Mr I H Polson
Solicitors for respondent: Ross and Mccarthy

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant brought an action in the District Court of Adelaide for damages sustained in a collision which occurred on Unley Road at Unley between a bicycle ridden by her and a motor car driven by the respondent. The learned trial judge found that the respondent was guilty of negligence. He also found that the appellant had been negligent in a way which contributed to the accident. He apportioned responsibility 50/50 and gave judgment accordingly. He assessed the damages in the sum of $37,827.21 and gave judgment for one half of that amount, namely $18,913.60. 2. The collision took place at about 8.40 a.m. on 19 July 1989 in heavy peak hour traffic. Unley Road runs north and south and has two traffic lanes for traffic travelling in a northerly direction. The appellant, whilst riding her bicycle into the city, therefore travelling in a northerly direction, was travelling on the inside of a bus which was occupying the inside or western traffic lane. The lane on the outside of the bus was occupied by the respondent's motor car. The traffic ahead of these vehicles had banked up from the intersection of Unley Road with Greenhill Road which lay some distance to the north. The accident occurred at a junction or intersection - and the evidence does not establish clearly which - which was formed by Young Street and Unley Road. Young Street runs from Unley Road to the west. It was described throughout the evidence as an intersection, but no plan was produced and the appellant, in her evidence, said that she was unaware of whether it was a complete intersection. 3. The respondent had decided that, if it were possible, he would turn left into Young Street in order to escape the bank up of traffic ahead. He gave a signal of an intention to turn left and was waiting for an opportunity to get into the inside lane. That opportunity did not present itself until immediately before this accident. The driver of the bus, realising what the respondent wished to do, stopped or almost stopped to make a gap, thereby inviting the respondent to make his left-hand turn. The respondent turned to the left in front of the bus and proceeded across the front of the bus at a speed which was found to be about 5 km/h. He did not see the appellant's bicycle until just before impact. 4. The appellant proceeded along the road in a northerly direction on the inside of the bus. When the bus stopped, or virtually stopped, to allow the respondent to pass in front of it, the appellant continued to ride her bicycle forwards. She did not see the motor car until immediately before impact. She made an effort to avoid it but was unsuccessful, and she collided with the rear wheel of the motor car. 5. The speed of the bicycle as it emerged from the cover of the bus is not certain. She was proceeding at what she described as a running speed. I think it is clear that she was not riding the bicycle at a very fast speed but nevertheless, it was a speed which precluded her from stopping when she saw the car emerge from the front of the bus. 6. In these circumstances I think that the learned judge was clearly right to find that both parties had been negligent. That is conceded by counsel for the appellant. Mr Holland however, who appeared for the appellant, contended strongly before us that the greater degree of responsibility rested with the respondent. He stressed that the respondent was driving a motor car, and therefore should be considered to have a greater degree of responsibility than the cyclist by reason of the fact that the car, if negligently managed, might cause more damage than the bicycle if negligently managed. He also stressed the fact that the manoeuvre being executed by the respondent was unusual in that he was executing a left-hand turn, not from the inside lane as required by law, but from the outside lane. 7. The criticisms which Mr Holland has made of the driving of the respondent are undoubtedly valid. But it is necessary to weigh up the respective degrees of culpability and responsibility of the appellant and the respondent. The respondent, it is true, was making a left-hand turn from a lane other than the inside lane. It must be remembered however, in fairly assessing his degree of responsibility, that he had been tacitly invited to do so, by the driver of the bus which was occupying the inside lane. He was responding to that invitation in a traffic situation in which drivers, and I think this is common experience, not uncommonly are forced to adopt unusual manoeuvres in order to cope with the exigencies of very heavy traffic. The respondent no doubt thought that, having been invited by the vehicle on the inside lane to make the turn, it was safe for him to do so. His fault was that he overlooked the possibility that a cyclist might travel along the inside of the bus and might not stop before emerging from the cover of the bus. His look out was obviously not seriously at fault, if at fault at all, because he saw the cyclist before the cyclist had emerged from the front of the bus, although not in time to avoid the accident. His fault, I think, was that because he did not anticipate the possibility of a cyclist emerging from the front of the bus, he failed to edge out in a way which would give such a cyclist clear warning of the manoeuvre which he was in the course of executing. 8. The appellant was riding in a position on the road which is commonly occupied by bicycles, namely on the inside of a vehicle in the inside traffic lane. That is a course which is commonly followed, and provided proper care is exercised by the cyclist, normally involves no danger. However, if a cyclist riding in that position intends to overtake the vehicle on the outside then the situation clearly calls for vigilance to ensure there will be no obstruction to the cyclist's passage. When the cyclist is approaching an intersection or junction the need for that vigilance is the greater. 9. In this case the appellant was approaching the junction or intersection with Young Street. Good driving practice on the part of vehicles travelling along a road in these circumstances is to stop before encroaching upon the junction or intersection. Where there is a bank up of traffic drivers who are exercising reasonable consideration for other road users will stop before encroaching on the junction or intersection in order to keep the junction or intersection free for other road users. I think that the appellant in this case should have anticipated that the bus might well stop before entering the junction with Young Street. I think that she should also have anticipated the possibility that a vehicle would pass in front of the bus. If it was an intersection, and the appellant on her own evidence did not know whether it was, there was a possibility that a vehicle might be crossing the intersection. Whether it was a junction or an intersection, there was the possibility that a south bound vehicle might make a right-hand turn in front of the bus. I think moreover that the possibility of what actually happened was not to be ignored, namely that the bus driver might invite, by his actions, a vehicle on the outside of him to make a left-hand turn in front of the bus. All these possibilities were present as the appellant approached the intersection and all of them, I think, should have been anticipated. 10. In those circumstances there was a clear obligation upon the appellant, in taking reasonable care for her own safety, to emerge from the cover of the bus at a very slow speed which would enable her to control her cycle and bring it to a stop if necessary to avoid a collision with any vehicle that might be passing in front of the bus. 11. The apportionment of liability is always a difficult exercise for a trial judge and different judges might take different views of apportionment in the present situation. It is not to the point however that the judges constituting this present court might, if they had been a trial judge, have taken a somewhat different view. Apportionment is essentially an exercise for the trial judge. The appellant court will interfere only if it is demonstrated that there has been a clear error in the apportionment and that the apportionment which is made therefore does not represent a proper judgment on the facts of the case as proved. 12. The view of both parties was totally obstructed by the bus until just before the collision. Each should have anticipated the possibility of danger as he or she emerged from the cover of the bus. The essential fault of each was the failure to do so. 13. I think that in the circumstances of the present case, both parties being guilty of the departure from the standard of care which the law expects of them, and in the particular facts and circumstances of this case it was reasonably open to the judge to reach the conclusion that the responsibility should be equally shared. I would not, as a judge sitting on an appellant court, be willing to interfere with this apportionment. In those circumstances I consider that the appeal should be dismissed.

JUDGE2 OLSSON J I agree.

JUDGE3 MULLIGHAN J I agree.