Horne v Beltrame No. DCCIV-94-528 Judgment No. D3549

[1997] SADC 3549

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Russell

Hearing

12/12/96 to 12/12/96.

Catchwords

Liability of Defendant - Plaintiff failed to prove on balance of probability that defendant was negligent.

Representation

Plaintiff KEVIN WAYNE HORNE:
Counsel: MR S MILAZZO - Solicitors: LEMPRIERE ABBOTT MCLEOD

Defendant ALFONSO BELTRAME:
Counsel: MR D STRATFORD - Solicitors: FINLAYSONS

DCCIV-94-528

Judgment No. D3549

10 January 1997

(Civil)

HORNE V BELTRAME

CIVIL

JUDGE RUSSELL

The plaintiff's claim is for damages for personal injuries caused to him when the motor car which he was driving on The Grove Way, Wynn Vale, collided into the off side of a stationary Volvo truck driven by the defendant.

The only issues are whether the defendant is liable and, if so, whether the plaintiff was guilty of contributory negligence and, if so, what is the proper apportionment.The question of costs is also an issue.

The sum of $100,000 has been agreed upon as the quantum of damages if the plaintiff is entirely successful and, if not, then as the basis of a calculation for apportionment, if any.

The collision occurred on The Grove Way about 1 << kilometres to the west of and down hill from the intersection of The Grove Way and The Golden Way.

The Grove Way is a comparatively new four lane highway which runs south up hill from the Main North Road to the end of Bridge Road, Salisbury East and, thereafter, snakes its way up the hill, first in an easterly direction and then curves in a south easterly direction, thence down hill in an easterly direction to Golden Grove Road, at Golden Grove.

The two lanes for traffic travelling west on The Grove Way is divided from the two lanes for traffic travelling east by a concrete median strip.At the place where the collision occurred there is a gap in the median strip to allow vehicles to make a U-turn.

The area where the gap is situated is visible for about 400-500 metres to traffic travelling west.At that point, whilst I have no evidence of the gradient, The Grove Way is on a fairly steep slope and below the gap in the median strip it passes through a cutting where it curves from east/west to a northerly direction before reaching the end of Bridge Road.

I heard evidence from the plaintiff and Mr Rodda who, at the time of the collision was driving his fully loaded single drive Ford cargo tipper truck from Boral Quarries, Para Hills to a construction site at Golden Grove in the left hand lane for traffic travelling east on The Grove Way.His truck was crawling up the hill at about 20 kilometres per hour.

Mr Rodda was so placed at all material times that he had a good view of all that occurred leading up to the collision.Moreover he impressed me as being a reliable, honest and independent witness whose evidence I accept without reservation and, where his evidence differs from that of the plaintiff, I prefer that of Mr Rodda.Having said that, I am not being critical of the plaintiff.The fact is that in some respects he is plainly inaccurate and in others it may well be that he is simply mistaken.For instance, he said that he had the defendant's vehicle under observation for 50 seconds before the collision.If he was travelling at 80 kilometres per hour, as he said he was, then he would have travelled over 1.1 kilometres during that interval of time and not 400-500 metres.

However that may be, having regard to the evidence as a whole, and bearing in mind my preference for the evidence given by Mr Rodda I find the following facts to have been proved on the balance of probability.

At all material times the weather was fine and dry, visibility was good and the road surface on The Grove Way was composed of bitumen which was in good condition.

At about 8.15 am on 25 March 1992 the defendant was driving a FL10 Volvo cab tandem tipper truck in a westerly direction on The Grove Way.He operated the left hand trafficator of his vehicle and brought his vehicle to a halt partly on the shoulder of the bitumen and partly on the dirt verge on the left hand side of the road.

The vehicle stopped to the east of the gap in the concrete median strip.The defendant's vehicle remained stationary until the traffic on the west bound traffic lanes had cleared and, when it was safe to do so, the defendant operated the right hand trafficator on his vehicle to indicate he was leaving the dirt verge.His vehicle proceeded forwards and whilst the right trafficator was still operating the defendant manoeuvred his vehicle hard to the right to enable him to execute the U-turn through the gap and thence to travel in the east bound traffic lane.

When the defendant's vehicle reached the gap the defendant applied the brakes in order that he might give way to east bound traffic, including the truck being driven by Mr Rodda.Either one or two motor cars were also travelling east and overtook Mr Rodda's truck.

At that time the defendant's truck was standing at 90 degrees to the two traffic lanes for traffic travelling west and, by the time of the collision, some four or five motor cars travelling west had stopped whilst the defendant was executing his manoeuvre.One of those cars drew over to the left hand verge and passed behind the rear of the defendant's truck.

At the same time the plaintiff was driving to work at Main North Road, Salisbury Plains in his 1976 180B Datsun station wagon.He left his home at Greenacres at about 8 am.

In the course of his journey he travelled west on The Grove Way.After crossing the intersection of The Grove Way with The Golden Way he stopped at the traffic lights at the intersection of Aeolian Drive and Atlantis Drive with The Grove Way.

When the lights changed to 'go' he drove through the intersection and accelerated to a speed of 80 kilometres per hour.He drove his car in the right hand lane.He failed to see the traffic standing in the left hand lane waiting for the truck driven by the defendant to complete its manoeuvre.He failed to realise that the defendant was executing a U-turn.He failed to apply the brakes on his vehicle until it was too late.Having applied the brakes and having realised that the wheels of the vehicle had locked, he released his brakes and then reapplied them.It was far too late by then and his car collided into the off side of the truck driven by the defendant.

In my opinion, the plaintiff has failed to prove on the balance of probability that the defendant was negligent.The defendant had stopped his vehicle off the carriage way to enable the traffic travelling in a westerly direction to clear.When it was safe to do so he signalled his intention to turn to the right.I infer that he did so with an intention to execute a U-turn at a point in the carriage way where provision had been made to make such a manoeuvre. When he had driven his vehicle across the carriage way he stopped at the entrance gap to allow the traffic travelling east to clear before entering into the east bound carriage way.He executed his manoeuvre in good time for the four to five cars behind him to slow and to stop to permit him to execute the manoeuvre.The plaintiff, whose car was behind the other four to five cars which he now cannot remember having seen, had he kept a proper look out and had proper consideration for other users of the road, had ample time and opportunity to slow and stop his vehicle in order to avoid any collision.

In my opinion, the plaintiff was the author of his own injuries.

In those circumstances there must be judgment for the defendant and there will be an order accordingly.

There will be a further order that the plaintiff do pay to the defendant his costs of and incidental to this trial.