Giles v Sutton - [2014] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GILES & ANOR v SUTTON
[2014] SASC 3
Judgment of The Honourable Justice Anderson
17 January 2014
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - INTERSECTION AND JUNCTION ACCIDENTS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal from a magistrate who apportioned blame for a motor vehicle accident against the appellant in this appeal. The accident occurred on 28 July 2011 at a major intersection between two trucks being driven by the first appellant and the respondent. The magistrate found that the appellant's actions caused the collision and awarded damages to the respondent. The appellant appeals on the basis the magistrate erred in her findings and her assessment of the evidence.
Held: Appeal allowed. The magistrate erred in her assessment of the evidence. The respondent was negligent and caused or contributed to the accident. The appellant's driving was not the sole cause of the accident. The respondent should bear 50% of the responsibility. The appellant to have 50% of his damages on the counterclaim and the respondent 50% of his damages on the claim.

GILES & ANOR v SUTTON
[2014] SASC 3
Magistrates Appeal: Civil
ANDERSON J.
Introduction

This is an appeal from a magistrate in which she found the first appellant solely to blame for a motor vehicle accident which occurred on 28 July 2011. The accident was between a prime mover towing a semi trailer driven by the respondent (Mr Sutton) and a truck being driven by the first appellant (Mr Giles). Both vehicles were extensively damages in the accident and unfortunately Mr Giles suffered serious head injuries.
The proceedings in the Magistrates Court involved only the question of responsibility for the property damage caused to the two vehicles. Counsel informed me that the damage to the appellant’s truck amounted to $49,613.18, and damage to the respondent’s truck amounted to $40,155.00. Both amounts are inclusive of interest.
The accident occurred at the intersection of Tapleys Hill Road and Sir Donald Bradman Drive, West Beach, near the Adelaide Airport. Both the semi trailer and the truck were travelling in a northerly direction along Tapleys Hill Road approaching the intersection of Tapleys Hill Road and Sir Donald Bradman Drive.
At that point there are four lanes for vehicles travelling north. The two western lanes are for vehicles proceeding north across the intersection and the two eastern lanes are for vehicles turning right to travel east towards the city.
The vehicle driven by Mr Giles was struck from the rear by the vehicle driven by Mr Sutton. Both were travelling, at the time of the collision, in the eastern-most of the two lanes for vehicles proceeding through the intersection.
As a result of severe closed head injuries he sustained, Mr Giles was not able to give any evidence regarding the circumstances of the accident. The evidence relating to the accident comes from the driver of the prime mover Mr Sutton and from bystanders and other drivers.
Mr Sutton alleges that the accident was caused by the negligence of Mr Giles in that he without any warning moved his truck into the lane in which Mr Sutton was travelling. As a result of the movement by Mr Giles alleged by Mr Sutton, Mr Sutton applied his brakes but was unsuccessful in stopping in time. He collided with the rear of Mr Giles’ truck. This shunted the truck across the intersection where it collided with a vehicle on the opposite side of the intersection and then a pole and then a tree. At the time of the impact Mr Giles truck was stationary or almost stationary at the stop lights for vehicles travelling in a northerly direction.
The magistrate inspected the scene of the accident and I was invited to do likewise as this is an appeal by way of rehearing. I attended the scene with counsel to better understand the layout of the intersection and its surroundings.
Background evidence
Mr Sutton gave evidence that he was travelling at a speed of approximately 55 kilometres per hour from the time he had entered the 60 kilometre zone which is about 300 metres south of the intersection. He estimated that Mr Giles’ truck was approximately 60 to 80 feet from the stop line of the intersection when it crossed lanes in front of his prime mover. As that happened he applied the brakes and it appears from the evidence that the wheels of the trailer locked up. There are skid marks shown on the roadway behind his vehicle in a photograph taken soon after the accident. No evidence was called as to the length of the skid marks, braking distances or reaction times to enable an estimate of speed to be made. The police investigation regarding the accident was minimal and not satisfactory from the point of view of a proper accident investigation.
A Mr Hinds gave evidence that he was also driving a truck in a northerly direction along Tapleys Hill Road. His truck was in the left-hand or westernmost lane for vehicles travelling in a northerly direction. He had followed the truck driven by Mr Giles down Tapleys Hill Road. He said it was about 25 metres in front of his vehicle. He noticed the prime mover and trailer driven by Mr Sutton on the right-hand side. He said that when “about 50 metres from the traffic lights the Giles truck darted into the right hand lane in front of the Sutton rig, the lights went orange and he [Mr Giles] just hit the brakes straight in front of Mr Sutton”. He said that if he had done it in front of him he would have been in the same predicament. He said he saw no indication by Mr Giles’ truck that it was changing direction.
A Ms Fisher told the Court that she was driving her vehicle also in a northerly direction along Tapleys Hill Road. She observed Mr Giles’ truck behind her. She said she felt intimidated and changed lanes. She said the truck sped past her vehicle. She then noticed when she got to the intersection that there had been a collision.
A Mr Sullivan gave evidence that he also was travelling in a northerly direction along Tapleys Hill Road with an intention to turn right into Sir Donald Bradman Drive. His vehicle was travelling in the left or most western of the two right-hand turn lanes. He observed the traffic lights were red. He said he saw a square furniture truck (Mr Giles’ vehicle) to the left of his vehicle in the right-hand lane or most eastern lane for northbound vehicles. He said it was stopped at the traffic lights. He said a loud explosion then occurred. He said it was caused by a prime mover colliding with the rear of the stationary truck. He saw the truck catapulted through the intersection.
Mr Arnold was a worker employed by the local council and was working near the intersection. He parked his vehicle in a service road near the intersection and to the west. I was taken to the point from which he made his observations when I inspected the scene. He said his attention was drawn to the noise of a truck and trailer accelerating. It was the only vehicle he could see but he then saw a small light truck pulling up at the lights. He said that as the small truck came to a halt he heard the big truck decelerating through the gears with the exhaust brakes. He continued to watch the prime mover and he saw the smaller truck come to a halt. He then observed the impact with the rear of that vehicle. He said he had a clear view of the intersection.
The findings made by the magistrate
The magistrate preferred the evidence of Mr Sutton and Mr Hinds to the evidence given by the witnesses Mr Sullivan and Mr Arnold. Her Honour gave reasons for her assessment of the evidence of the witnesses. She found that Mr Hinds was the best placed to view the events leading up to the collision. She said that he gave his evidence in a definite and straightforward manner and that he had a clear recollection of the events.
In particular Her Honour found that the evidence of Mr Sullivan was of limited assistance. She appears to have done this because of a concession by Mr Sullivan that Mr Giles’ truck was in his peripheral vision and that he was broadly aware of the movements without being focused. In particular Her Honour rejects the evidence given by Mr Sullivan that Mr Giles’ vehicle was stationary at the intersection for between one to three seconds.
I will set out the findings made by Her Honour in paragraph [88]:
[88]I make the following findings of fact, on the balance of probabilities:
1.    On 28 July 2011 at approximately 7.30 am Sutton was the owner and driver of a Scania 1997 prime mover registration number WWW-238 travelling in a northerly direction along Tapleys Hill Road approaching the intersection with Sir Donald Bradman Drive.
2.    At about the same time Giles was the driver of a 2007 Nissan truck registration number XNI-447 also travelling in a northerly direction along Tapleys Hill Road approaching the same intersection. This truck was owned by Coastrun Pty Ltd, the employer of Giles.
3.    At the intersection of Tapleys Hill Road and West Breach Road, Giles had turned left from the slip road from West Breach Road into Tapleys Hill Road. Hinds was travelling in his vehicle along Tapleys Hill Road and was forced to brake to allow Giles’ truck to enter Tapleys Hill Road.
4.    Shortly after, Fisher was driving her vehicle in the left lane in a northerly direction along Tapleys Hill Road. The speed limit was 80 km/h and she was travelling at approximately 60 to 70 km/h. Giles’ truck came up behind her vehicle to a distance of less than one car length. She felt intimidated by the presence of the truck and changed into the right-hand lane.
5.    At the intersection of Tapleys Hill Road with Sir Donald Bradman Drive and Burbridge Road, on Tapleys Hill Road there are two lanes for north-bound traffic, two dedicated lanes for traffic turning right into Sir Donald Bradman Drive and a slip lane for vehicles turning left into Burbridge Road. Sutton’s prime mover was in the right-hand lane for north-bound traffic and Giles’ truck was in the left hand lane for north-bound traffic.
6.    Approximately 300 metres from the intersection the speed limit reduces from 80 km/h to 60 km/h.
7.    Sutton first saw Giles’ truck approximately 150 metres from the intersection when Giles’ truck passed his prime mover. At the time Sutton’s prime mover was travelling at approximately 55 km/h.
8.    Giles’ truck cut across from the left lane to the right lane in front of Sutton’s prime mover approximately at the point of the sign indicating a bicycle lane (Exhibit D6, photograph 1). This sign is situated immediately south of the slip road leading to Burbridge Road, approximately 30 to 40 metres from the intersection of Tapleys Hill Road with Sir Donald Bradman Drive.
9.    Giles undertook this manoeuvre without indicating, leaving only a short distance in front of Sutton’s prime mover. Sutton applied the brakes of his prime mover. At the time the traffic lights at the intersection were green.
10.    Approximately at the position of the second arrow adjacent to the traffic cone (Exhibit P3, photograph 1), the traffic lights changed to amber and Giles’ truck braked suddenly intending to stop at the intersection. Sutton applied his engine brake but in view of the short distance to the intersection and the combined weight of the prime mover, the trailer and its load, he was unable to stop the prime mover and it collided with the rear of Giles’ truck.
11.    It would have been safe for Sutton to proceed through the intersection on an amber light had Giles not braked suddenly.
12.    At the time of the collision, Giles’ truck had not completely stopped.
13.    The impact of the collision shunted Giles’ truck through the intersection whereupon it collided with another vehicle owned by Michelle Lutze. The truck then collided with a light pole, knocking it over, and came to rest after hitting a tree (Exhibit P3, photographs 8, 9, 13 and 14, Exhibit D7, photographs 2 and 3).
14.    Giles was not in control of the truck having suffered a closed head injury following the impact of the collision. He was conveyed by ambulance to the Royal Adelaide Hospital.
15.    As a consequence of the closed head injury he suffered, he has no memory of the collision. His last memory of that day is driving along Diagonal Road, Marion at 7.10 am that morning.
16.    Sutton was not using his mobile telephone at the time of the collision (Exhibit D6).
As a result of the above findings Her Honour found that Mr Giles must accept full responsibility for the accident. She dismissed his counterclaim and allowed the claim by Mr Sutton.
Submissions of counsel
Mr Crocker who appeared for Mr Giles placed heavy reliance on the evidence of Mr Sullivan. He argued that his evidence should have been preferred and had it been preferred then the decision of Her Honour would have been reversed, namely, that Mr Sutton was totally responsible for the accident.
Mr Crocker submitted that the judge was in error dismissing Mr Sullivan’s evidence. He submitted that whilst the white truck may have initially been in Mr Sullivan’s peripheral vision, it then came past him and stopped in front of him to his left. Mr Crocker submitted Mr Sullivan had a clear view of the white truck stopping, for 1 to 3 seconds. Mr Crocker placed importance on Mr Sullivan’s observation that there was a “loud explosion”, submitting by implication there was a strong impact due to the speed of the larger truck, and that Her Honour was in error rejecting this evidence. Mr Crocker submitted that MR Sullivan gave a contemporaneous account an hour after the collision. His statement was marked for identification and he was not cross-examined about any inconsistencies between his statement and his evidence.
Mr Crocker further submits that the judge erred in finding the council worker Mr Arnold to be mistaken in some of his observations. Mr Crocker submitted that Mr Arnold had a clear view of the intersection that was not obscured by vegetation, and that he correctly heard an acceleration noise, which was what caused him to look up, before the deceleration noise. Mr Crocker submitted Mr Arnold’s observations indicate that Mr Sutton’s vehicle accelerated in readiness to travel through the intersection, before decelerating when he realised he would have to stop as Mr Giles’ vehicle was not going through. Mr Arnold also observed Mr Giles’ truck stopping prior to the impact.
Mr Crocker submitted that Her Honour erroneously used similar fact reasoning when assessing the evidence of Mr Hinds and Ms Fisher, in that she took into account their evidence regarding Mr Giles’ earlier driving to make her findings that Mr Giles was at fault in the accident. Mr Crocker submitted this is an impermissible reasoning process, and that any driving of Mr Giles a few kilometres earlier cannot inform the magistrate as to what happened.
Mr Crocker submitted there was an obligation on Mr Sutton to drive defensively and by assuming that Mr Giles would go through on the amber light (and thus not decelerating in time) he was at fault in the accident. He submitted that Her Honour should have taken this into account.
Mr Hanus for Mr Sutton argued that because of Her Honour’s rejection of the suggestion that Mr Giles’ truck was stationary and because of Her Honour’s acceptance of the evidence of Mr Sutton and Mr Hinds the appeal must fail. He submitted that Mr Hinds was the best placed witness to observe the events leading up to the collision and Her Honour having formed a good impression of Mr Hinds was entitled to prefer his evidence.
Mr Hanus submitted that Mr Hinds’ evidence was independent and consistent with that of Mr Sutton. Mr Crocker responded that not all aspects of their evidence were consistent, including the time when Mr Giles’ truck moved into the second lane. Mr Hanus submitted that Mr Sullivan’s evidence was of limited assistance as he was not focused on what Mr Giles’ truck was doing, and even if Mr Giles was stationary for 1 to 3 seconds, this does not contradict the evidence given by Mr Sutton and Mr Hinds relating to the movement of Mr Giles’ truck from the left to right lane, resulting in Mr Sutton having no opportunity to avoid the collision.
Mr Hanus submitted that Her Honour was correct in assessing parts of Mr Arnold’s evidence as incorrect, particularly that Mr Hinds’ truck was on the right hand side of the two trucks. Mr Hanus submitted the acceleration noise heard by Mr Arnold was likely Mr Giles’ truck as he moved lanes.
Mr Hanus submitted that the findings made by Her Honour were all open on the evidence. He submitted that the appellant is really saying that Her Honour should have made other findings. It is not a case where there was no evidence to support the findings that were made and therefore there is no basis to interfere.
Consideration
It is my view that the whole of the evidence shows that at the time of impact the vehicle driven by Mr Giles was either stationary or very close to it. He had prior to becoming stationary moved from one lane into the lane in which Mr Sutton was travelling. The magistrate found that he made this movement without warning and there is no evidence to contradict that finding.
It is possible now to say that the point where Mr Giles moved into Mr Sutton’s lane was 50 metres from the stop line at the intersection. That is because counsel have agreed that distance. It was not agreed in the trial before the magistrate who made an estimate of 30 to 40 metres.
When Mr Giles changed lanes, Mr Sutton saw the movement but in my view failed to react sufficiently to avoid an accident. He anticipated that Mr Giles was going to continue across the intersection and was driving too fast in the circumstances, with the weight of his big rig not enabling him to stop should Mr Giles not travel through the intersection. As it turns out there was an amber light and Mr Giles stopped his vehicle. As I have said it does not much matter whether the vehicle was actually stopped or almost stopped because in my view Mr Sutton failed to keep a proper lookout in the circumstances and failed to drive defensively. Fifty metres back from the stop line, had Mr Sutton driven defensively, the accident might have been avoided. If it was not avoided it would certainly have been an accident of much less impact.
The Sutton rig left significant skid marks showing the last minute evasive action taken by Mr Sutton. It is not a case of having no time to react. He had the time and did react but not quickly enough.
The magistrate considered that it was safe for Mr Sutton to proceed through the intersection on an amber light. In my view, he should, as I have indicated, if driving defensively, been aware of the risk of Mr Giles not wishing to proceed against an amber light. By the time he appreciated the emergency of the situation he had put himself in a position where his options were limited because he had continued to drive at too fast a speed in the circumstances, particularly having regard to the size and weight of his rig.
In my view the magistrate has not properly analysed the evidence of the witness Mr Sullivan. The evidence shows that whilst there was an initial peripheral view which Mr Sullivan had of Mr Giles’ truck he made positive observations as to that truck, the fact of it stopping and the fact of the collision.
The evidence of Mr Arnold likewise indicates that Mr Giles’ truck was stationary at the intersection and that prior to the 50 metre mark Mr Sutton had been accelerating his rig.
The conclusions of the magistrate, with which I disagree, are expressed by Her Honour at [89]. The first point is that Her Honour finds “there was no action that Sutton could take to avoid the collision”. Whilst at the actual point of time when he reacted, that may be the case, it fails to consider that at an earlier point in time it may well have been possible to stop or at least minimise the impact speed had he reduced his speed and driven defensively having regard to the weight of his rig and the stopping distance required if the lights were to change.

Likewise I disagree with Her Honour’s comment “The small distance between the truck and the prime mover was due entirely to the sudden lane change by Giles”. It seems to me that that is not in accordance with the whole of the evidence. The small distance which separated the two vehicles was the result of a combination of Mr Giles moving into Mr Sutton’s lane, Mr Sutton’s excess speed in the circumstances and Mr Sutton’s failure to drive defensively and anticipate that Mr Giles may not go through the intersection.
Conclusion
On the basis of my review of the evidence and Her Honour’s reasons I consider that liability should have been apportioned between the two drivers and that Mr Giles was not the sole cause of the accident.
I have attempted to analyse whether one driver was more responsible for the accident than the other. I have decided that it would be splitting hairs to say that one driver was more responsible than the other. Any such fine analysis would not accord with my overall view that both parties were equally to blame for the accident.
I therefore allow the appeal. The appellant to have 50% of his counterclaim, namely, $24,806.59 and the respondent to have 50% of his claim, namely, $20,077.50.
The parties have agreed an interest rate and I will hear them to make the necessary calculation so that an overall amount can be entered for the respective judgments.