Edwards v Brennan - [2004] SASC 207

Supreme Court of South Australia
(Magistrates Appeals: Civil)
EDWARDS v BRENNAN
Judgment of The Honourable Justice Perry (ex tempore)
14 July 2004
NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
The appellant appealed against the apportionment of liability as between him and the respondent in a claim in the Magistrates Court by the respondent for damages following a road accident - the respondent was riding a motor cycle behind the appellant, who was driving a car, on a suburban roadway in broad daylight - the appellant made a sudden turn to the left into the driveway of his house, from a position near the centre of the road, and in doing so cut across the reespondent's path - the respondent collided with the near side front of the appellant's car - held in the circumstances that the trial magistrate was not shown to have erred in apportioning liability as to 70 per cent against the appellant - discussion of the duty of care owed by the driver of a vehicle turning across the path of oncoming vehicles - appeal dismissed.
Stoeckel v Harpas (1971) 1 SASR 172; James v Williams (2003) 228 LSJS 232; Richards v Picco (Unreported) [2000] NSW CA 35, 10 March 2000, discussed.

EDWARDS v BRENNAN
[2004] SASC 207
Magistrates Appeal: Civil

PERRY J (ex tempore) This is an appeal from a judgment pronounced in a civil action in the Magistrates Court in which the respondent, Mr Brennan, was the plaintiff and the appellant, Mr Edwards, was the defendant.
In the proceedings, Mr Brennan claimed damages from Mr Edwards for injuries sustained in a motor vehicle accident which occurred at some time between 4 pm and 4.30 pm on Easter Monday, 21 April 2003.
The matter came on for trial on the issue of liability only.
In a reserved judgment, the trial magistrate apportioned liability as to the appellant, Mr Edwards, at 70 per cent and as to the respondent, Mr Brennan, at 30 per cent.
In his notice of appeal, the appellant claims that the trial magistrate’s apportionment was erroneous and that an apportionment more favourable to him should have been made out.
Mr Baker, who appeared for the appellant, did not contend that his client should have been exonerated from any degree of fault.
I turn to the facts.
It was a fine, clear day. The appellant, then a 19 years of age, was driving his car south on Prospect Road, which runs approximately north and south. His girlfriend, Christala Kalivas, was a passenger in the front seat.
Leader Avenue forms a junction with Prospect Road on its western side. As the appellant drove past the junction, he saw the respondent stationary on his motorbike in Leader Avenue, at the junction. A little after the appellant had passed the junction, the respondent emerged from it and made a right-hand turn into Prospect Road so as to proceed in a southerly direction, some distance behind the appellant’s car.
It was the appellant’s intention to make a left-hand turn into the driveway of the house where he was living, which is on the eastern side of Prospect Road. The appellant estimated that his house was some 300 or 400 metres south of the junction with Leader Avenue.
The driveway of the house rises up sharply from the level of the footpath. There was what the trial magistrate described as “a significant dip” at the kerb alignment opposite the driveway. Because of that dip, it was the appellant’s evidence that he always proceeded slowly and stopped, or virtually stopped, before making the left-hand turn which it was necessary for him to make in order to enter the driveway.
Furthermore, it was his practice not to align himself completely with the driveway, that is, at a 90 degree angle to the kerb, before attempting to enter it, but rather to incline the car at an angle of about 60 to 80 degrees. His evidence was that his habit was then to enter the driveway slowly at an angle which would avoid the undercarriage of his car scraping on the footpath as he passed over the dip. He would then engage first gear in order to climb up the steep driveway.
The appellant’s evidence was that he last saw the respondent when the respondent was of the order of 50 to 55 metres to his rear, and it does not appear from the evidence that he saw him again until just prior to the impact.
The respondent’s evidence was that after he had completed his turn into Prospect Road, he proceeded at a speed of 45 to 50 kilometres per hour. He saw the appellant’s car ahead of him, and kept it under observation. He noted that it was proceeding slowly as it approached what is now known to have been the appellant’s house. The respondent thought that it was travelling at 10 to 15 kilometres per hour. He could not see any indicator lights or brake lights. He eased off on the accelerator and applied his own brakes so as to slow down somewhat; the precise extent is not clear from the evidence. However, he continued to gain on the car.
The respondent was travelling in a straight line maintaining approximately a car’s width out from the eastern kerb of Prospect Road. According to the respondent, the appellant’s car was in or towards the centre of Prospect Road adjacent to the middle of the road (which appears to have been unmarked by a line), although not straddling it.
As the respondent approached the appellant’s car, according to the respondent, the appellant executed a sharp turn, whereupon the respondent immediately applied his brakes, keeping the bike in a straight line. The wheels of the bike locked for a moment and it skidded. This is not surprising as the respondent was applying both the footbrake and the handbrake. He kept the bike as close to the left-hand kerb as possible, but was unable to avoid a collision, which occurred between the front of the bike and about the left hand passenger door of the appellant’s car.
The respondent came off his bike, hit the windscreen of the car and then rolled off the bonnet, ending up in the gutter just to the north of the car.
He was seen there soon afterwards when a ambulance officer attended.
The car came to rest with the front of the car close to the eastern kerb at an angle to the kerb of between 60 to 80 degrees.
The appellant’s case was that as he was travelling along Prospect Road, he was not so close to the centre of the road as the respondent asserted. He said that his car was about a car’s width out from his left-hand kerb. He maintained that there was space for the respondent to pass him on his right-hand side if he had chosen to do so.
The appellant said later that he did not signal his intention to turn left by using the left-hand turn indicator, until he had cleared a street, Angwin Avenue, which was a little north of his home. He estimated that Angwin Avenue was about four large house frontages from his house and that it adjoins Prospect Road on the eastern side. From a map which was exhibited before the trial magistrate it appears that Angwin Avenue was of the order of 53 metres from the appellant’s house.
The appellant’s evidence was that he did not apply his left-hand turn indicator until clearing Angwin Avenue, so that any traffic behind him would not be misled into thinking that his intention was to turn into Angwin Avenue.
The witness Kalivas said that as the car was approaching the driveway she noticed the respondent still approaching on his bike. She started nudging the appellant, saying something along the lines of “This guy’s not going to stop” or “He’s not stopping”.
On her account of the matter the impact occurred almost immediately after she nudged the appellant.
It is important to note that the magistrate preferred the evidence of the respondent in the critical aspects of it where it conflicted with the evidence of the appellant.
As I have said, the trial magistrate held that the appellant did not see the bike or the respondent again after the sighting which occurred when it was 50 to 55 metres to his rear, until just prior to his turn. He found that the turn was executed sharply. His expression was that it was executed “somewhat hastily”, and that it caught the respondent “unawares”.
In making that finding he clearly rejected evidence to the contrary, such as the evidence of Ms Kalivas, to which I was taken by Mr Baker during the course of argument, in which she described the turn as a “slow turn into the driveway”.
The trial magistrate found that the respondent was driving his bike in what he described as “an unexceptionable manner”, and that he was progressing, as he said in evidence, at about one car’s width from the kerb until he moved close to the kerb, when the situation of danger suddenly materialised. He described the speed of the respondent as “not inordinate”.
The trial magistrate accepted the respondent’s evidence that the appellant was travelling so that the offside of the car was in the position which I have explained, that is, close to the centre of the road, before executing a sharp turn.
I have some difficulty in one respect with the magistrate’s reasons for judgment, in that he found that it was not the intention of the respondent to pass the appellant on his left-hand or nearside. If matters had remained as they were described by the respondent before the turn occurred, it is difficult to see how he could have done other than pass the appellant’s car on its left-hand side, as otherwise he would have been obliged, contrary to the evidence of the appellant, to have gone across onto his wrong side of the road. However, it seems to me that that finding is not material to the essential findings of fact upon which the findings of negligence and the apportionment turn.
As for the question whether or not the appellant operated the left-hand indicator light, the trial magistrate held:
“I frankly cannot make a finding on this but my suspicion is aroused that the plaintiff was led or lured into the position he was in by virtue of the fact that there may have been an engagement or an operation of the turning light at a time that was very late in the piece and not as early as the defendant said, if at all.”
At all events, he was prepared to accept the submission of counsel for the respondent that if the appellant did operate his left-hand turn indicator, he did so too late for it to register on the respondent. This led the trial magistrate to the conclusion which finds expression in the following passage from his reasons:
“This meant that the defendant failed in his duty to ensure that the execution of the turn into his driveway was as safe as it could possibly be and, more importantly, he had not signalled his intention to do so in a timely fashion.”
The critical findings as to liability appear in the following passages from his judgment:
“33In reviewing the authorities that were referred to me I am of the view that the defendant did have a lookout that was clearly defective when he began his turn into the path of the plaintiff’s bike.
34There was no suggestion the bike was overtaking the vehicle on the wrong side. I cannot make any such finding. But obviously the corollary is the plaintiff was the person who had the superior lookout by virtue of his rearward position. I was referred by counsel for the defendant in submissions to such cases as Stoeckel v Harpas.[1] There is no doubt that the plaintiff acknowledged in his evidence that he had the defendant's car under observation as it was travelling ahead of him and that he could have brought his bike to a stop if he chose to. He did not stop or sufficiently slow his bike because he was waiting to see what would happen; he thereby did accept the risk of colliding with the slow moving car driven by the defendant.
35It was in my view the defendant's manoeuvre that represented the greater or more riskful breach of road duty on this occasion. It was he who was moving off a straight line, or assumed straight line, of the direction of travel. I reiterate what I said earlier and that is that the plaintiff did not, in his riding of the bike, exhibit anything that was exceptional apart from his failure to slow at the time when he should have known or indeed knew that an impending danger was likely. There will be an apportionment of liability accordingly.
36I find for the reasons disclosed by the preceding discussion that the defendant does wear the greater responsibility for this accident.”
[1] (1971) 1 SASR 172 per Wells J.
The magistrate then proceeded to make the apportionment of liability now under challenge.
In his argument in support of the appeal, Mr Baker, counsel for the appellant, complained that the trial magistrate failed to address the respondent’s evidence that a third vehicle, being a vehicle travelling north on Prospect Road, had turned across his path into Angwin Avenue just before the accident.
Mr Baker took me to the passage in the cross-examination of the respondent in which he admitted that his attention was “somewhat” distracted by the turning car, and that naturally enough he was concerned not to collide with the rear of it.
It is true that the magistrate did not in his reasons refer to the passage of the third vehicle and the respondent’s evidence about it. However, in the circumstances I do not consider that to be indicative of error.
The turning vehicle would not have amounted to more than a momentary distraction. On the whole of the evidence it does not seem that it caused the respondent to alter his course or speed which, as I have indicated was a speed from which he was easing off as he approached the appellant’s car. Furthermore, necessarily, the approaching car must have turned into Angwin Avenue before the respondent reached Angwin Avenue. So that the respondent’s view of the appellant’s vehicle over what might be described as the critical phase during the passage of time up to the occurrence of the accident, was unimpeded by it.
Mr Baker further suggested that the respondent’s evidence that he could have brought the bike to a stop if he had chosen to do so before the accident, indicated that the respondent accepted the risk of colliding with the car driven by the appellant.
True it is that the latter part of that proposition finds an echo in the passage which I have referred to in the reasons for judgment of the trial magistrate. But in my view, the second part of the proposition does not flow from the first.
It is true that in the preliminaries to most road accidents, drivers could have, within an appropriate distance, brought their vehicle to a halt before the accident. If everyone did that, there would never be any road accidents.
In cases such as this the real question is whether the respondent was under a duty to do so before reaching the appellant’s car. I hardly think that that would be a reasonable requirement.
The obligation on the respondent is to take reasonable care. It was not incumbent on him to answer to a counsel of perfection. The mere fact that a vehicle was moving slowly ahead of him, close to the centre of the road, is not a circumstance which should oblige an approaching vehicle to stop altogether. Instead, the respondent eased back on his accelerator and braked, which I would have thought was a reasonable measure to take, as he continued to place the vehicle under observation.
Mr Baker further suggested that the duty cast upon what he described as the “following” driver was a heavy duty.
I am not quite sure what is meant by that.
The duty to take care while driving any vehicle on a road in any circumstances is in all cases a heavy duty.
It is true that in an ordinary situation where vehicles are travelling at about the same speed, one behind the other, the following vehicle should normally keep a reasonable distance behind the vehicle ahead and be alert to anticipate any situation arising in which the vehicle ahead may be obliged to stop, including any situation in which the vehicle ahead might stop suddenly.
It is that sort of situation which was dealt with by Wells J in the well known passage cited from his judgment in the case of Stoeckel v Harpas cited above.
But this was not the ordinary case of vehicles proceeding along the road one behind the other. This was a case where the appellant had moved towards the centre of the road and maintained a position close to the centre of the road, and was proceeding slowly with the intention of making a left-hand turn, unbeknown to the respondent. In such a situation, it was incumbent upon the respondent to exercise an appropriate degree of care, until he could be sure what manoeuvre the appellant’s car was likely to make. But he did keep it under observation, and eased off his speed. I hardly think that more than that was required of him.
In support of his argument Mr Baker referred to several authorities which at first blush might be thought to exhibit features as to a manner of driving similar to the case at hand.
He referred to the decision of Gray J in James v Williams.[2] In that case Gray J emphasised the duty of care upon both the following driver and a driver who intends to make a U-turn ahead of the following driver.
[2] (2003) 228 LSJS 232.
I see nothing in his judgment in that case which deflects me from the view that I reach in this case. Every road accident gives rise to situations which are different from others and it is very rare that findings as to liability or apportionment in one case can be of much assistance in determining the outcome of another.
Another case referred to by Mr Baker was the decision of the NSW Court of Appeal in Richards v Picco.[3] In that case the New South Wales Court of Appeal dealt with an appeal from a judgment concerning a road accident which occurred when a vehicle executed a right-hand turn across the path of an oncoming vehicle.
[3] (Unreported) [2000] NSW CA 35, 10 March 2000.
The Court of Appeal quashed a finding of negligence on the part of the driver of the turning vehicle.
But that case was very different from this case. In that case, the approaching vehicle, or following vehicle, which was a motorbike, was travelling at what was found to be an excessive speed of 100 kilometres per hour or more. It was held that even if the driver of the turning vehicle had kept a better lookout than she did, she would not necessarily have been alerted to the fact that to turn in front of it was dangerous. Also, in that case there was a clear finding that the driver of the turning vehicle had made and operated her turn indicator in good time.
Returning to the circumstances of this case, it seems to me an important consideration that it was in fact the appellant’s vehicle which was the turning vehicle, as was emphasised by the trial magistrate. If a comparison is to be made between a duty of care owed by each party, it is consistent with authority to regard the driver of the turning vehicle, that is, the driver of a vehicle intending to turn across the path of other vehicles which are otherwise maintaining a straight course, as under a duty to exercise a higher degree of care.
Clearly, the appellant was under a duty to ensure that before he commenced his turn, the roadway behind him was sufficiently clear of traffic for him to be able to execute the turn with safety. That duty was one which became sharper in focus by reason of his knowledge that there was a motorbike approaching from his rear. He should have looked again to see just where the motorbike was before beginning what the magistrate found was a sharp turn across its path.
In my view, the appellant was guilty of negligence:
*in failing to maintain a sufficiently consistent lookout behind him, to ensure that the respondent’s motorbike was sufficiently far behind him to enable him to execute his turn safely;
*in failing to give a sufficiently early indication of his intention to make the turn, if he gave any indication of it at all, so as to give a clear warning to the approaching motorbike rider;
*in executing the turn in a sharp manner, which gave little or no opportunity to allow approaching vehicles to cope with the danger which this posed;
*in executing the turn from a position close to the centre of the roadway.

I am unable to accept the contention of the appellant that the magistrate erred in failing to apportion a higher degree of responsibility to the respondent, as opposed to the appellant. Opinions may differ as to the appropriate apportionment in cases such as this, but in my view, the appellant’s degree of responsibility was substantially higher than that of the respondent. The appellant has not discharged the onus of satisfying the court that the apportionment of liability in fact made by the trial magistrate was erroneous.
The appeal is dismissed.
[AFTER HEARING COUNSEL ON THE QUESTION OF COSTS]
PERRY J I order that the appellant pay the respondent’s costs of and incidental to the appeal to be taxed.