Jackson v Walters
[1987] TASSC 130
•24 December 1987
Serial No B60/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Jackson v Walters [1987] TASSC 130; B60/1987
PARTIES: JACKSON
v
WALTERS
FILE NO/S: 204/1986
DELIVERED ON: 24 December 1987
JUDGMENT OF: Green CJ
Judgment Number: B60/1987
Number of paragraphs: 19
Serial No B60/1987
List "B"
File No 204/1986
JACKSON v WALTERS
REASONS FOR JUDGMENT GREEN CJ
24 December 1987
The plaintiff claims damages for injuries he sustained and for damage done to his motor cycle in a motor accident and the defendant counter claims for damages for damage done to his motor vehicle.
Nothing put to me and nothing in the way in which they gave their evidence persuades me that I should not accept the evidence given by the plaintiff and the defendant as to the salient aspects of the events leading up to the collision, but insofar as it relates to questions of speed, location and distance I do not accept that the evidence of either of them was completely reliable. I do not accept the submission to the effect that I should reject Miss Denney's evidence on the ground that she was a partial witness. Although she was confused about some aspects of her evidence, I accept her evidence as to the flashing indicator light on the defendant's utility and as to the place where the plaintiff's motor cycle overtook the utility.
I find that at about 8 a.m. on Friday, 28 February 1986 the plaintiff was riding his motor cycle in a northerly direction on Mount Road. As he approached the junction of Mount Road and Circular Road he crossed to his right hand side of the road and commenced to overtake a utility motor vehicle being driven by the defendant in the same direction. As the plaintiff was passing the utility the defendant commenced making a right hand turn up Circular Road. The plaintiff's motor cycle collided with the right hand side of the cab of the utility near the front wheel and the plaintiff was thrown over the vehicle and struck a pole situated on the northern side of Circular Road.
I find that prior to the collision the plaintiff had, to the defendant's knowledge, been following the defendant for some distance. The defendant rounded a sharp left hand bend, followed by the plaintiff and then each passed in turn, Queen Street, Sargent's shop, a laneway, a butcher's shop and the butcher's house, in that order.
I find that at some stage prior to overtaking the utility the plaintiff turned on his right hand flashing indicator light; that at some stage prior to the accident the defendant turned on his right hand flashing indicator light; that the plaintiff at no stage saw the defendant's indicator flashing and that the defendant did not look to his side or rear and failed to see the plaintiff at any time after they had rounded the left hand bend.
Two critically important questions of fact are where the plaintiff and the defendant were situated when the defendant commenced signalling and when the defendant commenced to overtake.
The plaintiff said in evidence that he crossed over the centre line of the road when he was opposite the laneway and passed the rear of the utility as he passed the butcher's house. In a statement the plaintiff made to the police, which was annexed to the interrogatories, he said that he "pulled out to overtake" at a point where the broken lines – which I take to be the double broken lines had finished, which is a point opposite the butcher's house. Miss Denney said that she thought the plaintiff crossed the lines outside the butcher's house. I find that the plaintiff crossed the centre line when he was at a point approximately opposite the butcher's house and that the front of his motor cycle passed the rear of the utility at a point a short distance north of that point.
I am not satisfied that Miss Denney would have been able to see whether or not the right hand indicator light on the utility was flashing as it appeared immediately after passing the front of the bus, which was parked in front of Sargent's shop, but I am satisfied that she did see it flashing as the utility passed a point approximately opposite the butcher's shop.
I find that the right hand indicator of the defendant's utility commenced flashing when the utility was south of a point opposite the butcher's shop and before the plaintiff's motor cycle crossed the centre line.
I find that had the defendant been keeping a proper lookout to the side and rear of his utility he would have seen the defendant's motor cycle in time for him to have appreciated that the defendant was overtaking him, or was about to overtake him and in time to have safely postponed or abandoned his right hand turn so that the plaintiff could have passed him in safety.
I find that had the plaintiff been keeping a proper lookout he would have seen the defendant's indicator light in time for him to have safely postponed or abandoned his overtaking manoeuvre.
I am not satisfied that either the plaintiff or the defendant drove at an excessive speed.
I am not satisfied that it has been shown that had the defendant delayed crossing the centre line of Mount Street until he was at the centre of Circular Road the collision would not have occurred. I am not satisfied that the plaintiff has discharged the burden of showing that the defendant's action in cutting the corner was negligent.
The plaintiff gave evidence to the effect that he thought that the defendant was going to stop at Sargent's shop on the grounds that the defendant did not accelerate after slowing down as he turned the corner. However, I am not satisfied that the plaintiff could have reasonably entertained that belief at the time when he crossed the centre line because, on the plaintiff's own evidence, the defendant's utility had by then passed Sargent's shop and was closer to the centre line than the edge of the road.
I am satisfied that both parties were negligent. In considering the responsibility which the parties have for the damage which each has suffered I am particularly influenced by these considerations.
1Whilst recognising that he had a duty to keep a lookout to his rear and to his right hand side so as to ensure that no vehicles were overtaking him, a reasonable driver in the defendant's position would also recognise that, having indicated his intention to turn right in sufficient time, his attention should primarily be directed to ensuring that there was no oncoming traffic and that there was nothing in Circular Road to prevent him safely making the turn.
2Overtaking another vehicle is an inherently potentially dangerous manoeuvre, especially when approaching an intersection and the plaintiff had a correspondingly high duty to be especially vigilant.
3The plaintiff as the driver of the following vehicle was in the best position to appreciate the traffic situation as it affected the plaintiff and the defendant.
In my view, the plaintiff's share in the responsibility for the damage was substantially greater than that of the defendant. In the exercise of my discretion the plaintiff's damages will be reduced by 75% and the defendant's damages will be reduced by 25%.
The plaintiff who is now aged 18 years, suffered severe life threatening injuries to his chest which caused a 50% collapse of his right lung, injury to his liver, a haematoma in the abdominal wall and a relatively minor injury to his ankle. The plaintiff initially suffered difficulty in breathing until he was treated by the insertion of intercostal tubes in his chest and back. He spent 5 days in the intensive care ward, 9 days in the surgical ward and was discharged from hospital on 14 March 1986. The plaintiff has suffered pain and discomfort, underwent some unpleasant surgical and medical procedures and was disabled for some months. The plaintiff has made a virtually complete recovery save for minor scarring to his chest, back and ankle. There is some possibility that the scarring on his chest could cause him discomfort in the future. I am not satisfied that the injury to the ankle will result in any permanent disability. The scarring constitutes a cosmetic disability, but the plaintiff is not self–conscious about it and I do not regard it as a very significant disability. I assess the plaintiff's general damages in the sum of $5,000.00. Special damages have been agreed.
I assess damages as follows:
Plaintiff's Claim
General damages $5,000.00
Special damages 1,630.00
6,630.00
Less 75% 4.972.50
$1,657.50
Defendant's Counter Claim
Special damages $1,841.34
Less 25% 460.34
$1,381.00
There will be judgment for the plaintiff on the claim for $1,657.50 and judgment for the defendant on the counter claim for $1,381.00.
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