Fleet SA South Australian Government Financing Authority v Thomas Luke Transport - [2014] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
FLEET SA - SOUTH AUSTRALIAN GOVERNMENT FINANCING AUTHORITY v THOMAS LUKE TRANSPORT
[2014] SASC 194
Judgment of The Honourable Justice Gray
16 December 2014
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - GENERALLY
Appeal against a decision of a Magistrate following a civil trial. The respondents’ semi-trailer was driving along Yorke Highway when the appellants’ water truck turned out onto the highway in front of it. The semi-trailer crossed on to the other side of the road in an attempt to overtake the water truck so as to avoid a collision but was unsuccessful. The driver of the semi-trailer gave evidence at trial that he was driving at the speed limit and had disengaged his cruise control once he saw the water truck pull out onto the highway. The driver of the water truck gave evidence at trial that he had seen the semi-trailer and formed the view that he had ample opportunity to turn out onto the highway in front of it.
Whether the Magistrate erred in finding that the driver of the semi-trailer was not negligent. Whether the Magistrate erred in failing to apportion liability to the driver of the semi-trailer.
Held (allowing the appeal):
1. Drivers have a duty to drive defensively and keep a proper lookout.
2. The Magistrate erred in finding that the driver of the semi-trailer was not negligent – he had failed to keep a proper lookout and, as a consequence, left himself insufficient time to apply his brakes to avoid a collision when the water truck pulled out in front of him.
3. Liability apportioned 60 per cent to the appellants and 40 per cent to the respondents.
Stoeckel v Harpas (1971) 1 SASR 172; Noble v Edwards (1971) 1 SASR 155; Walton v Rowbottom (Unreported, Supreme Court of South Australia, von Doussa J, 17 September 1986); Kenny v Ritter [2009] SASC 139; Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd (2013) 118 SASR 11, considered.

FLEET SA - SOUTH AUSTRALIAN GOVERNMENT FINANCING AUTHORITY v THOMAS LUKE TRANSPORT
[2014] SASC 194
Magistrates Appeal: Civil
GRAY J.

This is an appeal against a decision of a Magistrate following a trial in the civil jurisdiction of the Court.
On 19 October 2012, a semi-trailer owned by the first respondent, Thomas Luke Transport Pty Ltd, and driven by the second respondent, Darren John Ames, travelling south on the Yorke Highway at Port Clinton came into collision with a water truck owned by the first appellant, Fleet SA – South Australian Government Financing Authority. The water truck, driven by Mark Matthew Boakes, an employee of the second appellant, the South Australian Water Corporation, had turned left from a side road onto the Yorke Highway ahead of the semi-trailer, proceeded south for a distance of about 100 metres along the Highway and was in the process of turning to the right to leave the Highway onto a side road when the collision occurred.
Damage was sustained to both the semi-trailer and the water truck. Separate proceedings were issued, in which the parties claimed against the other. The actions were consolidated. The Magistrate, following the trial, concluded that Mr Ames was not guilty of negligence and that Mr Boakes was guilty of negligence. As a consequence, on 16 December 2014, the Magistrate entered judgement in favour of Thomas Luke Transport in the sum of $75,975.11, together with interest of $3,150.00. On 9 July 2014, the Magistrate made orders that SA Water pay Thomas Luke Transport the costs of and incidental to the action. The Magistrate dismissed all other claims in the consolidated proceedings. SA Water has appealed against all of the orders made by the Magistrate.
The Trial
Mr Ames and Mr Boakes gave evidence at trial and documents were tendered depicting the area at which the incident occurred and showing the damage to the vehicles. Images from Google Maps were also tendered. No accurate map or plan of the area was before the Court.
The Respondents’ Case
Mr Ames gave evidence that he was aged 49 years and an experienced truck driver, licensed to drive singles, B-doubles and road trains. On 19 October 2012, he was driving his employer’s Kenworth prime mover towing a single semi-trailer full of bio-solids on a trip from Adelaide to Yorke Peninsula. It was a clear, sunny day and the road surface was sealed, dry and in good condition. Traffic conditions were very light. The collision occurred at about mid-morning. Mr Ames was travelling in a general southerly direction. There were two carriageways, one for north-bound and the other for south-bound traffic. He described the semi-trailer as being in excellent condition. As he travelled south and approached what would become the scene of the collision, his semi-trailer was on cruise control, travelling at 100 kilometres per hour. This was his speed limit for the road in question and was the maximum speed at which the semi-trailer was capable of travelling. There was no speed limit reduction for vehicles travelling on the by-pass past Port Clinton.
As Mr Ames was driving along the by-pass, he noticed a water truck coming from Cumberland Road, out of the township of Port Clinton. He claimed that the water truck came to a stop. At this time, Mr Ames asserted that his semi-trailer was about 100 metres from the water truck. He then observed the water truck pull out onto the Yorke Highway and immediately tapped his brake pedal to disable the cruise control. Mr Ames recognised that he would need to take some form of evasive action as the water truck was pulling into his path. He noted that the road dipped away to his left and he was about to embark on a slight right hand bend. He determined that if he moved left the semi-trailer may roll. He observed that there were no vehicles approaching from the opposite direction so he determined that his safest option was to move to the right. Mr Ames moved his semi-trailer to the right and, having decelerated a little, accelerated again in an attempt to drive around the water truck. In so doing, he crossed over double white lines onto the incorrect side of the road. A collision occurred between the front of the water truck and the front near side of the semi-trailer. Ms Ames estimated his speed at impact to be 80 kilometres per hour.
The Appellants’ Case
At the time of the collision, Mr Boakes was 28 years of age and employed by SA Water as a construction maintenance worker stationed in the Yorke Peninsula. He was driving his employer’s water truck. He had been working in Port Clinton and was to drive to a property on Birkin Road. Mr Boakes left Port Clinton on Cumberland Road, intending to turn left onto the Yorke Highway, to travel south, and then turn right onto Birkin Road. Mr Boakes was familiar with this particular route and had travelled it on many occasions. On this occasion, as he approached the Yorke Highway, he was travelling at a speed of 15 to 20 kilometres per hour and was still moving when he reached the junction. He said he looked left, looked right, looked left and then looked right. He said his observations were made when he was about 5 metres back from the junction. He did not stop at the junction. As a result of these observations, he was aware that there was no traffic to his left and he then said in evidence in chief:
... To my right, there was a truck and a car, left was clear again and then right obviously there was still a truck and a car heading my way and then I’ve popped out on to the highway.
He estimated the truck to have been about 400 to 500 metres distant. There was no obstruction to his view. He considered that he had sufficient time to enter safely onto the Yorke Highway. He described his vehicle as “rolling up to the intersection, in second gear and moving onto the Highway without stopping”. He estimated his lowest speed through this manoeuvre at 5 kilometres per hour. He claimed to have reached the speed of about 60 kilometres per hour by the time of the collision. He estimated that he travelled about 100 metres on the Yorke Highway from the Cumberland Road junction when the collision occurred. He estimated the distance between the Cumberland junction and the Birkin junction to be about 150 metres. He said he had no awareness of the truck coming up behind him when he traversed the 100 metres on the Yorke Highway. Immediately before impact, he heard the squeal of tyres and looked straight out of the window to his right and saw the semi-trailer’s bulbar and the semi-trailer itself coming “straight at me”. He claimed to have activated his left indicator when moving from Cumberland Road onto the Yorke Highway. He said he checked his driver’s side mirror when about 50 to 60 metres from Birkin Road and saw no traffic. He described the impact as being a glancing blow, with the bulbar connecting at a point near his head, “ripping into” the driver’s side door while the semi-trailer kept on going. He said that, at the moment of impact, his vehicle was about a metre away from the oncoming traffic lane on the Yorke Highway at about a 45 degree angle.
In cross-examination, Mr Boakes denied that when he first saw the truck it was much closer than 450 metres and in particular denied that it was a distance of 150 to 200 metres away. He agreed that his average speed on the Yorke Highway was around 30 to 40 kilometres per hour and that speed would cover 10 metres per second. He agreed that, on his estimates, he would have covered about 140 metres and hence have been on the road for about 14 seconds. It was suggested to Mr Boakes that his evidence that the truck was 450 metres away when he first saw it was incorrect.
The Magistrate
The Magistrate, having regard to Mr Boakes’ evidence and the Google maps, considered the distance between the two junctions to be about 150 to 160 metres. Having regard to the nature of the junction of Birkin Road and the Yorke Highway and the evidence of Mr Ames and Mr Boakes, the Magistrate made a finding that the collision occurred approximately 15 metres north of the Birkin Road junction. The Magistrate rejected the submission that Mr Boakes’ travelled at a speed of approximately 35 kilometres per hour and concluded that he had travelled at a speed of approximately 55 kilometres per hour.
The Magistrate accepted the evidence of Mr Ames that his semi-trailer was speed limited to 100 kilometres per hour. The Magistrate also accepted his evidence that when the water truck turned onto the Highway in front of him he tapped on his breaks to deactivate the cruise control. The Magistrate assessed the distance that the semi-trailer travelled at 100 kilometres per hour as 27.7 metres per second. At an average speed of 55 kilometres per hour, Mr Boakes’ vehicle would travel 15.27 metres per second. The Magistrate then calculated that Mr Boakes would have been on the Yorke Highway for little more than 9 seconds before impact and that during that time the semi-trailer would have travelled a little more than 250 metres. These calculations allowed the conclusion that the semi-trailer was approximately 110 metres from the water truck when the water truck first turned onto the highway.
In respect to Mr Boakes’ evidence, the Magistrate observed:
I pause to say something about Mr Boakes’ evidence concerning his observations of the truck. Mr Boakes knew that he was turning on to a main highway with a speed limit of 110.[1] If he saw the truck and correctly recognised its distance from him, he would have appreciated that it was likely that the truck would reach Birkin Road at about the time he was likely to reach that point and commence his turn.
Mr Boakes’ evidence was that after entering York Highway and travelling on it for a distance he checked his rear vision mirror. If his evidence about his observations of the truck were accurate, he would have checked his mirror to see where the truck was, not to see if there was something behind him. But Mr Boakes told the Court that he saw nothing. By necessary inference he looked in his mirror not realising that the truck might be there at all.
I cannot accept Mr Boakes’ evidence concerning his observations of the truck because the evidence is internally inconsistent. He did not appreciate, as he entered Cumberland Road, that the truck was approaching his position, if indeed he saw it at all. Had he seen it he would have seen where it was, realized that it was bearing down on him as he entered York Highway and he would have checked his mirror to see where it was. He did not, on his evidence, check his mirror to see where it was but to see if the road behind him was clear.
[1] It is to be noted that Mr Boakes and Mr Ames both accepted at trial that the speed limit was 100 kilometres per hour.
The Magistrate then made the following observation in regard to Mr Ames’ evidence:
In contrast to this, the evidence of Mr Ames suggests to me that Mr Ames was present in mind on the road. I accept that he saw the truck turn in front of him. Further, I accept that the truck was relatively close in front of him and that he recognized a need to take some sort of evasive action. This fits reasonably comfortably with my estimate of speed and distance in relation to Mr Boakes’ travel on York Highway.
...
I also accept Mr Ames’ evidence that as he came up behind the truck there was one flash only before the truck started to move into him. He applied his brakes. That is apparent from the marks on the road and from the evidence of Mr Boakes. Why, upon hearing the brakes, Mr Boakes did not veer to the left, I do not know. Clearly he continued to attempt to turn right because his truck moved across on to the right-hand of York Highway before coming to a halt on the verge.
...
I have found that the decision of Mr Aims [sic] to overtake the truck was in the circumstances reasonable. He could not have anticipated when he made that decision that the truck was going to turn right. Even had he foreseen that event as a possibility, given the other options available to him, he could not do much else in the circumstances.
I accept his evidence that applying his brakes was not a viable option. I have rejected the evidence of Mr Boakes that Mr Ames was 400 m down the road. It does not fit in with any of the calculations I have made, with Mr Ames’ evidence or with Mr Boakes’ failure to look in his mirror to see the truck.
When Mr Ames first realised that Mr Boakes was intending to turn right, he was on the wrong side of the road. He had admittedly crossed a double white line but he did so to avoid a situation of danger created by Mr Boakes. At that point there was nothing he could do to avoid the collision except brake. He had nowhere to turn. Sounding his horn was of no use as the brakes and their noise immediately alerted Mr Boakes to his presence, a presence Mr Boakes failed to react to.
The Magistrate concluded that Mr Boakes had been guilty of negligence and in that respect concluded:
Again, I find that Mr Boakes was significantly negligent and not at all aware of the presence of the truck on the road as he should have been. Although Mr Boakes’ failure to veer left and avoid a collision with the truck when he heard it skidding was a decision made in the agony of the moment, it was a reflex decision that many drivers would have, in my opinion, made. Again, it suggests to me that Mr Boakes was not in his mind, present on the road for reasons that I am unable to determine.
...
I find the collision was caused by the negligence of Mr Boakes in failing to keep a proper look out when he turned onto York Highway and thereafter, and in failing to take proper evasive action when at the last moment he became aware of the truck’s presence as he heard its brakes being applied.
The Magistrate exonerated Mr Ames of negligence and in that respect concluded:
I therefore find that when Mr Boakes turned on to York Highway, Mr Ames was only approximately 100 metres further down the road and travelling with a fully laden semitrailer at a speed of 100 km/h. I am not prepared to accept in those circumstances that Mr Ames should have attempted to brake. He made the decision not to. He decided to attempt to overtake the slow moving water truck.
That decision at the time it was made was not a poor one. The truck was moving slowly and from his elevated position in the cabin of his truck Mr Ames had a reasonable view of both Birkin Road as it approaches York Highway and York Highway ahead of him. I do not forget that as P1 shows, there was a gentle left-hand curve some distance past the junction of Birkin Road and York Highway.
...
I do not think Mr Ames was negligent. He drove at the speed limit, he looked ahead, he saw Mr Boakes, he reacted to Mr Boakes’ careless manoeuvre in turning in front of him and he did what he could to avoid colliding with Mr Boakes when Mr Boakes turned straight into him while attempting to enter Birkin Road.
[Emphasis added.]
As a consequence of these findings, the Magistrate entered judgment in favour of Thomas Luke Transport in the claimed sum plus interest.
The Appeal
Defensive Driving
Before turning to the issues on appeal, it is convenient to extract the remarks of Wells J in Stoeckel v Harpas:[2]
... In fulfilling the role of a tribunal of fact, a judge is required to reflect in his findings the current standards of reasonable conduct that, to the best of his understanding, are set and usually maintained by the community. It is in this way that administration of much of our law is made, and made properly, to conform to the community’s reasonable expectations. Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today’s vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation.
In Walton v Rowbottom, von Doussa J observed that community expectations for careful driving had heightened since 1971:[3]
… The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving — to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. … Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable “rights” to drive up to the limits prescribed regardless of prevailing circumstances. …
The remarks of Wells and von Doussa JJ were adopted by the Full Court in Kenny v Ritter[4] and Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd.[5] Those remarks remain relevant today.
[2]    Stoeckel v Harpas (1971) 1 SASR 172 (reported as a note to Noble v Edwards (1971) 1 SASR 155).
[3]    Walton v Rowbottom (Unreported, Supreme Court of South Australia, von Doussa J, 17 September 1986).
[4]    Kenny v Ritter [2009] SASC 139.
[5]    Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd (2013) 118 SASR 11.

Drivers of heavy transports, including semi-trailers, are in control of vehicles that can cause extreme damage in the event of a collision. Drivers of these vehicles, particularly when fully laden, should be aware of the difficulty of stopping in a short distance or engaging in rapid changes of direction. The need for defensive driving of such vehicles is paramount. The maintaining of a vigilant lookout is critical.
Submissions
Counsel for the appellants submitted that the Magistrate erred in respect of several findings of fact. It was said that the Magistrate’s conclusion that the semi-trailer was only 100 metres from the Cumberland Road junction when the water truck moved onto the Yorke Highway could not be sustained. It was further submitted that the semi-trailer was approximately 300 metres from the Cumberland Road junction when the water truck entered the highway, not 100 metres as found by the Magistrate. It was contended that the Magistrate, having accepted that the water truck did not stop at the junction, was in error in failing to find that Mr Ames’ lookout was defective. It is to be recalled that Mr Ames claimed to have seen the water truck stop at the junction. It was further contended that the water truck travelled along the Yorke Highway for at least 17 seconds at an average speed of 35 to 40 kilometres per hour, rather than 9 seconds at an average speed of 55 kilometres per hour as found by the Magistrate. Counsel argued that Mr Ames was required to be vigilant of vehicles on the road ahead of him. It was said that he should have applied his brakes when he saw the water truck roll through the intersection. It should have been evident to Mr Ames that the driver of the water truck may not have seen the semi-trailer or may have misjudged the distance between the vehicles. In these circumstances, at the very least, Mr Ames should have substantially reduced the speed of his vehicle so that he would be in a position to deal with any emergency that might arise. Mr Ames knew the section of the road well and, in particular, the junction of the Highway and Birkin Road. Finally, it was contended that Mr Ames engaged in dangerous driving by crossing over the double white lines onto the incorrect side of the carriage way in an effort to overtake the water truck. Driving with due care required Mr Ames to reduce his speed. The appellants sought an apportionment of liability of 90 per cent to the respondents and 10 per cent to the appellants.
Counsel for the respondents accepted that the Magistrate erred in concluding that the distance between the vehicles was only 100 metres when the water truck turned onto the Yorke Highway. Counsel acknowledged it would, had that been correct, have only taken 4 to 5 seconds for the semi-trailer to have reached the water truck. Counsel was correct to acknowledge this error. Counsel for the respondents acknowledged the fact that Mr Boakes did not stop at the junction. This accorded with the Magistrate’s finding and the unchallenged evidence from Mr Boakes. Otherwise, counsel for the respondents submitted that the Magistrate’s findings were open on the evidence. Counsel argued that the collision was the unavoidable consequence of Mr Boakes’ actions, namely, his failure to give way to the oncoming semi-trailer and his failure to continue straight on the Yorke Highway instead of turning into the path of the semi-trailer once it started to overtake. Counsel accepted that there was a delay of a few seconds between Mr Ames disengaging the cruise control and actively applying the brakes. Counsel contended, however, that Mr Ames bore no responsibility for the collision.
Discussion
As earlier indicated, the Magistrate found that Mr Boakes’ vehicle rolled through the junction of Cumberland Road and Yorke Highway. Mr Boakes did not stop. The evidence suggests that he rolled through at a speed of about 5 kilometres per hour. At that time Mr Boakes claimed that he looked to his right and saw the semi-trailer about 450 metres away. The Magistrate concluded that this was a serious mis-assessment. Thereafter, Mr Boakes travelled along Yorke Highway, accelerating to a speed of about 70 kilometres per hour, and was in the process of starting a turn from Yorke Highway to his right on to Birkin Road. Mr Boakes was unaware of the approach of the semi-trailer and the imminence of a collision. Mr Boakes’ lookout was defective. As he approached Birkin Road a glance to the rear would have disclosed the semi-trailer bearing down on his vehicle.
The evidence that Mr Boakes rolled through the intersection was not challenged. It was open to the Magistrate to conclude that Mr Boakes’ estimate of the semi-trailer being 450 metres away was unreliable. Simple arithmetic and common sense confirms this to be the case. The semi-trailer was travelling at about 100 kilometres per hour and would cover a little less than 28 metres per second. It would have taken the semi-trailer approximately 16 seconds to reach the Cumberland Road junction. The distance between Cumberland and Birkin roads was about 160 metres. It would take the semi-trailer a further 6 seconds to travel this distance. On any view, if Mr Boakes’ estimates were correct there would have been no collision.
The Magistrate made a number of theoretical calculations concerning the speed of Mr Boakes’ vehicle as it travelled between Cumberland and Birkin roads. Such calculations may assist as a general guide. However, those calculations do not allow precise findings to be made.
In my view, the Magistrate was correct to conclude that Mr Boakes’ manner of driving involved a want of care. His lookout was defective at material times. This was a serious departure from the standard of care expected by a road user. Mr Boakes did not drive defensively. A prudent driver would not have entered Yorke Highway with a semi-trailer approaching at 100 kilometres per hour. A prudent driver finding himself on the Yorke Highway with a fast approaching semi-trailer coming from behind would have made relevant observations and, if there was any risk of a collision, moved off the highway to the left.
The Magistrate generally accepted the evidence of Mr Ames. He did so, however, without any apparent analysis of the reliability of Mr Ames, notwithstanding that, for example, he had found against Mr Ames on the important question of whether the water truck stopped at the Cumberland Road junction. The evidence of Mr Ames on a number of topics was unacceptable. The Magistrate, for the reasons that follow, erred in his assessment of Mr Ames’ conduct. In my view, that was in part due to his failure to critically analyse his reliability.
Mr Ames gave evidence that when 100 metres north of the Cumberland Road junction he observed the water truck coming to the junction and then pulling up. He claimed that when he first saw the water truck he tapped the brake to disengage the cruise control. He claimed that at this point he had no concern as the water truck had pulled up to give way. On the appeal, as noted above, counsel for the respondents accepted that Mr Ames’ assertion that he was 100 metres north of the junction was wrong. Simple arithmetic and common sense suggests that he was a greater distance to the north. Travelling at 28 metres per second he would have reached the junction in less than 4 seconds. His counsel also conceded on the appeal that his evidence that he saw the water truck stop at the Cumberland Road junction was incorrect. Mr Boakes’ assertion that he rolled through the junction was not challenged in cross-examination and, as noted above, was accepted by the trial Judge. The finding was not challenged on the appeal. These two matters materially impact on the reliability of Mr Ames. To my mind, it is clear that his evidence in material respects was a reconstruction and not evidence of what in fact occurred.
Having regard to the foregoing, I consider that Mr Ames had a defective lookout. He was aware of the possibility of vehicles entering the junction of the Yorke Highway and Cumberland Road. Mr Ames failed to observe the water truck roll through the junction. Had Mr Ames been keeping a proper lookout, he would have observed that manoeuvre and, had he reduced his speed immediately, would have had time to bring his semi-trailer to a stop. Mr Ames’ defective lookout precluded him from taking steps to avoid the collision. It is probable that by the time Mr Ames saw the water truck it was already on Yorke Highway in front of him.
Mr Ames was in control of a large, heavy vehicle travelling under cruise control at 100 kilometres per hour. The driver of such a vehicle has a particular obligation to drive defensively. Semi-trailers, because of their size and weight, are vehicles that present a particular danger on the road. A want of care on the part of the driver of such a vehicle can lead to massive damage. Any semi-trailer driver would or should be aware of these matters. The stopping distance of such a vehicle will be greater than that of an ordinary motor vehicle. Mr Ames in evidence said that he was unaware of the stopping distance of his semi-trailer. The duty of Mr Ames to drive defensively was a heightened duty having regard of the nature of the semi-trailer.
Mr Ames, as a prudent driver, was required to keep a proper lookout, to drive defensively and, upon becoming aware of the situation of possible danger, to apply the brakes so as to reduce the speed of his vehicle. He did not do so. The manner in which he drove meant that his only option to avoid a collision was to cross over double white lines onto the incorrect side of the road, itself a potentially dangerous manoeuvre.
The Magistrate, in his ex tempore reasons, failed to address the above matters. In my view, both Mr Ames and Mr Boakes were negligent and jointly responsible for the collision.
Mr Boakes’ lookout was defective. He either did not see the semi-trailer at all or failed to correctly assess whether he had enough time to turn onto and from the Yorke Highway on the two occasions.
Mr Ames should have maintained a better lookout. He should have observed the water truck rolling through the Cumberland Road junction. Had he done so, he would have been able to appreciate that the water truck was not stopping at the intersection and reacted accordingly. In any event, Mr Ames should have applied his brakes at the first opportunity, at the time when he disengaged the cruise control. Mr Ames was familiar with the area. He was aware of the roads which entered onto and turned off the Yorke Highway. He should have considered the possibility that the driver of the water truck may have sought to turn off the Yorke Highway onto Birkin Road. By his own admission, Mr Ames was unaware of the stopping distance of his fully laden semi-trailer. In these circumstances, he should have taken the opportunity that was available to reduce his speed.
Conclusion
I would set aside the orders made by the Magistrate.
Having regard to my reasons, as set out above, I consider that both drivers departed substantially from their obligations to drive with due care. I consider that breaches of duty of care on the part of both drivers were material causes of the collision and the damage sustained by both vehicles. On balance, I consider Mr Boakes’ want of care to be greater than that of Mr Ames. I would apportion liability 60 per cent to the appellants and 40 per cent to the respondents.
I would hear to parties as to the orders to give effect to these reasons and in respect of all consequential matters.