Jones v Taylor No. DCCIV-96-363 Judgment No. D3784

[1998] SADC 3979

Jones v Taylor

Civil

Judge Allan

The plaintiff claims damages for injuries and loss sustained in a road accident which occurred when a semi-trailer driven by the defendant collided with a motorcycle ridden by him.

The quantum of the plaintiff’s damages has been agreed at $305,000.The issue of liability for the accident remains to be determined.

At about 4.45 a.m. on 7 May 1993, immediately prior to the accident, the motorcycle and the semi-trailer were stationary at a level crossing at Magazine Road, Dry Creek facing in a westerly direction. The level crossing is controlled by boom gates, flashing red lights and bells. Magazine Road runs in an approximate east-west direction and, just east of the level crossing, joins Churchill Road, which runs in an approximate north-south direction, in a T-junction. Both the plaintiff and the defendant had been travelling south along Churchill Road and had turned right into Magazine Road and travelled west. The accident occurred when the semi-trailer collided with the rear of the motorcycle.

In the area where the accident occurred, Magazine Road is divided into two lanes for traffic travelling west. A raised median strip separates the southern carriageway, for vehicles travelling west, from the northern carriageway, for vehicles travelling east. The southern-most lane of the southern carriageway is 3.7 metres wide and the other lane is 3.65 wide. The raised median strip is 4.7 metres wide.

The line drawn on the southern carriageway indicating the point at which vehicles should stop when the level crossing signals are operating is 9.95 metres from the eastern-most railway line. The distance between the stop line and the boom gate in the southern-most lane is 5.5 metres.

At the time the accident occurred, it was dark and street lights illuminated the area where the accident occurred. The lights of the semi-trailer and the motorcycle were on.

The plaintiff and the defendant came to rest at the level crossing at different times, the semi-trailer arriving there before the motorcycle.

The signals and other controls at the level crossing were operating to enable a freight train to pass through the crossing. It took about 5 minutes to pass.

According to the plaintiff, when he turned into Magazine Road, the semi- trailer was stationary at the railway crossing. He says it was straddling the white line diving the two lanes and that two thirds of the semi-trailer was in the right, or northern-most, lane and the rest in the left, or southern-most, lane. He says the boom gates were down, the bells sounding and the red lights flashing. He says that, when he turned into Magazine Road, there were no other cars stationary to the right of the semi-trailer. He says he rode down the left side of the semi-trailer and then across the front of the prime mover, coming to rest in the centre of the left lane with his motor cycle straddling the stop line and with his body about 2 to 3 metres from the front of the prime mover. He says that, in that position, he was situated to the left of the centre of the front of the prime mover. He says that, in that position, he waited for the train to pass. He says that, during that time, his motorcycle was in neutral and that he was sometimes sitting upright and sometimes leaning forward with his hands on the handle bars.

The plaintiff says that, at some stage, while the train was passing, the semi-trailer crept forward and, so, he also moved slightly forward so that he was close to the boom gates. He says that when he first stopped, he was 2 to 3 metres from the boom gates.

The plaintiff says that, at some time after he came to rest in front of the prime mover, a car pulled up at the stop line on the right side of the semi-trailer.

The plaintiff says that, after the train had passed, the boom gate began to rise. He says that, as the boom gate rose, the car next to the semi-trailer drove off. He says that, about 3 seconds later, the semi-trailer moved off. He says that, at that time, the boom gate was about 75% to the horizontal, the bells were still sounding and the red lights were still flashing. He says he was waiting for the bells to stop sounding and the lights to stop flashing before he moved off. He says that the semi-trailer struck him from behind, that he was knocked from his bike and that he sustained his injuries when the left front wheel of the prime mover passed over his legs and feet.

The defendant says that he stopped his rig, that is, the prime mover and the trailer, at a point where the front wheels of the prime mover were about 1 foot short of the stop line. He says that the front of the prime mover extended a distance of 12 inches to 18 inches in front of the front wheels. He says that his vehicle was wholly in the left, or southern-most, lane. He says that, when he stopped, there were no other vehicles in the southern carriageway, but that, shortly after he stopped, a car pulled up alongside him on his right and that two or three more cars pulled up behind that vehicle.

The defendant says that, when he stopped, he put the prime mover into neutral, applied the park brake and waited for the train to pass. He says that, after the train had passed, the boom gate rose, the car next to him moved off and then he moved off. He says that he released the brake and engaged the gears after the boom gate had risen. He says that, when he moved off, the bells had stopped ringing, the red lights had stopped flashing and the boom gate was fully raised.

The defendant says, and I accept, and find, that, at no time, did he see or hear the plaintiff and his motorcycle. It was not until his attention was later drawn to it by people in the car which had been stationary next to him that he became aware that his vehicle had collided with the plaintiff.

The defendant says that his vehicle did not “creep forward” at any time after he came to rest and before he moved off.

The driver of the car which stopped alongside the semi-trailer was the witness Sandra Carr. She had turned right into Magazine Road after having travelled south on Churchill Road. She says that the semi-trailer was in the left lane and was not straddling the lane dividing the carriageway. She says that she stopped at the stop line and that the front of the prime mover was in about the same position. She says that, while she was stationary, in her rear vision mirror, she saw the motorcycle ridden by the plaintiff approach from her rear and turn to the left behind the semi-trailer. She says she next saw the motorcycle when it appeared, and stopped, on the left side and to the front of the prime mover. She says the plaintiff then manoeuvred the motor cycle into a position where it was in front of the prime mover. She says the plaintiff did this by pushing the motor cycle forward and back and to the side. She says the motor cycle finally came to rest with the plaintiff being less than 2 to 3 metres from the front of the prime mover. She says the manoeuvring occurred between the front of the trailer and the boom gates. She described it as being a “tight fit”.

Ms Carr says that, after the train had passed, she moved off. She says that, when she moved off, the bells had stopped ringing, the lights had stopped flashing and the boom gates were raised to about 75 degrees from the horizontal. She says that she did not see the semi-trailer move off. She says that she did not see it creep forward at any time.

The prime mover being driven by the defendant was a “Mack Superliner”. It has what is called a “blind spot” in the front; that is, because of it’s shape, particularly it’s “long nose”, and height of the driver’s seat from the road surface, objects such as cars and motorcycles cannot be seen when they are a certain distance in front of the prime mover; the distance varying according to the nature of that vehicle; and this was known to the plaintiff, an experienced truck driver. Tests conducted by the witness Mr Emerick, a person with technical qualifications, involving the prime mover driven by the defendant on the day of the accident and a motorcycle substantially the same as that being ridden by the plaintiff, shows that, when the rear wheel of the motorcycle is 1 metre from the front of the prime mover and with the rider of the motorcycle sitting upright in the stationary position and without his hands on the handle bars, the rider of the motorcycle cannot be seen by the person in the driving position in the prime mover. At a distance of 1.5 metres, with the rider of the motorcycle in the same upright position, the top of the helmet of the rider can be seen. A red perspex insect deflector was fitted to the front of the prime mover and when I say that the top of the helmet of the rider could be seen, I mean that it could be seen through that deflector. The tests to which I have referred were conducted in daylight. The lighting conditions which prevailed at the time of the accident might have affected the ability of a driver to see objects through the deflector, but such affect would only have been minimal.

I accept the accuracy of the tests conducted by Mr Emerick and I rely on his evidence for that purpose.

I accept the evidence of the witness Le Dung Tran, a professional engineer whose job it is, at least in part, to supervise the signals at railway crossings, including the one with which this case is concerned, and find that the boom gates, through a switch mechanism, operate the bells and lights at the crossing and that the bells and lights cease operating when the boom is at about 70 degrees from the horizontal on the upward swing.

I am satisfied, and find, that, when it came to rest at the railway crossing, the semi-trailer was wholly in the southern-most, or left, lane of the southern carriageway of Magazine Road and not straddling the centre line. In making this finding, I prefer the evidence of the defendant and the witness Carr to that of the plaintiff on this topic.

I am satisfied, and find, that the front wheels of the prime mover were about on the stop line. I accept the evidence of the defendant on this topic. His evidence conflicts with that of the plaintiff on this topic, and I prefer his. I think that means that the plaintiff is wrong when he says that his motor cycle was straddling the stop line when it came to rest. On the evidence which I accept, I think that the rear wheel of the motor cycle was probably to the west of the stop line.

I am satisfied, and find, that, when the plaintiff turned right into Magazine Road, Ms Carr’s vehicle was already stationary in the northern-most, or right, lane of the carriageway and that there was another car stationary behind her. I prefer the evidence of Ms Carr to that of the plaintiff on this topic.

As I have mentioned, the defendant did not see the plaintiff at any time before the impact. I am not satisfied that, with the exercise of proper or adequate attention, he could have been aware of the plaintiff when he came to rest in front of the prime mover. As I have mentioned, the plaintiff says that, when his motor cycle came to rest, his body was 2 to 3 metres in front of the prime mover. There seems to be no dispute, and I find, that the rear wheel of the motor cycle extended half a metre back from the rider; the motorcycle being an overall length of about 2 metres; so, this means that, on the plaintiff’s estimate, the rear wheel of his motorcycle, when it came to rest, was 1½ to 2½ metres from the front of the prime mover. I prefer the evidence of Ms Carr who says, in effect, that the rear wheel of the motorcycle was less than 1½ to 2 metres from the front of the prime mover when it, the motorcycle, came to rest. On the evidence, I am unable to make a finding as to the exact distance between the front of the prime mover and the rear wheel of the motorcycle when the latter came to rest. Whatever it was, I am not satisfied that the distance was such that the plaintiff would have been apparent to the defendant with the exercise of a proper look-out on the part of the defendant.

It is worth mentioning, I think, that, in the tests conducted by Mr Emerick, the rider of the motor cycle is positioned to the right of the centre of the prime mover and, therefore, in line with the driver’s line of vision; whereas, the plaintiff says, and I accept, that he came to rest to the left of centre of the prime mover. I do not know whether that would affect Mr Emerick’s calculations; but it does mean that the plaintiff was not in a direct line with the position of the driver of the prime mover.

The plaintiff submits that the defendant was negligent in not observing the plaintiff as he made his way along the left hand side of the semi-trailer. I do not accept that submission. Assuming that it was possible that the plaintiff could be seen as he made his way along the side of the semi-trailer, in the circumstances, I think it unreasonable to require that level of care from the defendant. The width of the prime mover was 2.7 metres. As I have mentioned, the lane in which it was stationary was 3.65 metres wide. There would have been barely enough room for the motor cycle to make it’s way along the side of the semi-trailer. In the circumstances, I think it unreasonable to require the defendant to anticipate, and be on the lookout for, somebody making such a manoeuvre.

It was suggested by the plaintiff that the defendant should have heard the approach or presence of the motor cycle. I do not accept that submission. There was a lot of noise in the area and, on the material before me, I am not satisfied that, with the exercise of proper attention, the defendant could have detected the noise of the plaintiff’s motor cycle.
         I accept the evidence of the plaintiff that the bells were still ringing and the lights were still flashing when he was struck by the semi-trailer. I prefer his evidence on this topic to that of the defendant. I think that, if the defendant had waited to move off until the bells and lights had stopped operating, it is likely the plaintiff would have moved off and that he would not have collided with him. In commencing to move off before the signals had stopped operating, he was negligent: he should have waited.

The plaintiff was guilty of contributory negligence. In positioning his motorcycle in front of the prime mover, he put himself in a dangerous situation. He knew, or should have known, that, at the least, there was a real possibility that the defendant could not see him. I think he should bear the major responsibility for the accident.

In all the circumstances, I apportion liability 30% against the defendant and 70% against the plaintiff. There will be judgment for the plaintiff in the sum of $91,500.

I will hear counsel as to costs.