Jones v Taylor No. Scgrg-98-521 Judgment No. S6880

[1998] SASC 6880

JONES v TAYLOR

[1998] SASC 6880

Full Court:  Prior, Lander and Wicks JJ

PRIOR J

1 I agree with what Lander and Wicks JJ have written about the negligence properly proved against both parties.  The respondent was negligent for failing to keep a proper lookout, not for moving off in the way found by the trial judge.
2 I agree with Wicks J that the appellant’s damages should be reduced by 70 per cent having regard to his share in the responsibility for that damage.  The appellant put himself in a position of real danger particularly given his own experience as a truck driver.
3 I would dismiss both the appeal and the cross appeal.

LANDER J

4 This is an appeal and cross appeal from a decision of a District Court Judge relating to a claim for damages for personal injuries by the plaintiff (appellant) in an action brought against the defendant (respondent).
5 The action arose out of a motor vehicle collision when a motorcycle, ridden by the appellant, came into collision with a semitrailer being driven by the respondent.
6 The quantum of the appellant’s damages were agreed at $305,000.  The only issue before the learned Trial Judge was the question of liability for the accident.
7 The accident occurred about 4.45 am on 7 May 1993.  Immediately before the appellant’s motorcycle came into collision with the defendant’s semitrailer both the motorcycle and the semitrailer were stationary at a level crossing at Magazine Road, Dry Creek, facing in a westerly direction.  They were stationary waiting for a train to pass.  The level crossing is controlled by boom gates, flashing red lights and bells. 
8 The accident occurred when, after the train had passed, the semitrailer moved off from its stationary position and collided with the rear of the motorcycle.
9 Magazine Road is divided into two lanes for traffic travelling West.  A raised median strip separates the Southern carriageway from the Northern carriageway.  The Southern most lane of the Southern carriageway is 3.7 metres wide and the lane nearest the raised median strip is 3.65 metres wide.  The median strip itself is 4.7 metres wide.
10 There is a line drawn in a North/South direction across the Southern carriageway indicating the point at which West bound traffic should stop when the level crossing signals are activated.  There is a distance of 5.5 metres between that line and the boom gate and a further distance of 4.45 metres between that boom gate and the Eastern most railway line.  In other words the very front of a stationary West bound vehicle should be no closer than 9.95 metres from the Eastern most railway line.
11 As can be expected, having regard to the time of year and the time of day, it was dark when the accident occurred.  However, street lights illuminated the area where the accident occurred and both the semitrailer and the motorcycle were lit. 
12 It is common ground that the respondent’s semitrailer arrived at a stationary position in the Southern most lane for West bound traffic before the plaintiff’s motorcycle arrived.
13 There were some differences in the evidence as to the exact circumstances in which the appellant’s motorcycle came to rest and the precise position which the respondent’s semitrailer occupied when it was at rest.
14 Both the appellant and the respondent gave evidence in relation to the events.  The learned Trial Judge, who had the advantage of  hearing both the appellant and respondent, accepted almost entirely the evidence of the respondent which was largely consistent with the evidence of other independent witnesses.
15 In particular, his Honour found that, when the respondent’s semitrailer came to rest it was entirely in the Southern most or left lane of the Southern carriageway of Magazine Road and was not straddling the centre line.  In that respect his Honour preferred the evidence of the respondent to that of the appellant.  The appellant had said in evidence that the respondent’s semitrailer was straddling the white line between the two West bound lanes on the Southern carriageway and that two thirds of the semitrailer was in the lane nearer the raised median strip.
16 In preferring the evidence of the respondent, his Honour, of course, had regard to the evidence of the respondent, but he also had regard to the evidence of an independent witness, Sandra Carr.  She was the driver of a motor vehicle which stopped alongside the semitrailer in the lane nearer the median strip.  She said that the semitrailer was in the left lane, that is the Southern most lane, and was not straddling the lane dividing the Southern carriageway.
17 His Honour, after finding that the respondent’s Prime Mover was in the Southern most lane, found that the front wheels of the Prime Mover were about on the stop line running across the Southern carriageway.  In that respect his Honour again preferred the respondent’s evidence to that of the appellant.  On that aspect the appellant had said that his motorcycle was straddling that line when he came to rest.
18 The width of the Prime Mover was 2.7 metres wide and the lane in which it was stationed was 3.65 metres wide.
19 His Honour found that after the respondent’s semitrailer came to the stationary position, which I have described, the appellant rode his motorcycle down the left hand side of the Prime Mover and then took up a stationary position immediately in front of the respondent’s Prime Mover.  The learned Trial Judge found that the rear wheel of the appellant’s motorcycle was less than one and a half metres to two metres in front of the Prime Mover.  That finding involved an acceptance of Ms Carr’s evidence and a rejection of the appellant’s evidence which was to the effect that his motorcycle came to rest with his body about two to three metres in front of the Prime Mover. 
20 That finding was important because of the configuration of the Prime Mover.  The Prime Mover being driven by the appellant, a Mack Superliner, has a ‘long nose’.  That and the height of the driver’s seat from the road surface creates a blind spot for the driver.  Low objects including motorcycles cannot be seen to a certain distance in front of the Prime Mover.
21 The learned Trial Judge heard expert evidence from Mr Emerick, a person with technical qualifications.  He accepted that evidence which was to the effect that a motorcycle at a particular distance in front of the Prime Mover would not be visible to the driver of the Prime Mover.
22 Whilst his Honour was not able to find precisely the exact distance between the front of the Prime Mover and the rear wheel of the motorcycle, he did expressly find that "he was not satisfied that distance was such that the plaintiff (appellant) would have been apparent to the defendant (respondent) with the exercise of a proper look out on the part of the defendant (respondent)". 
23 He found that the respondent was not negligent in failing to observe the motorcycle travelling down the left hand side of the semitrailer.  He also found the respondent was not negligent in failing to anticipate and appreciate that someone might make the manoeuvre carried out by the appellant. 
24 His Honour found that the respondent was not negligent in failing to hear the approach of the appellant’s motor vehicle.  He found that there was so much noise in the area that even with the exercise of proper attention the respondent could not have detected the noise of the appellant’s motorcycle.
25 In one respect and one respect only the learned Trial Judge preferred the evidence of the appellant and that was in relation to the point of time when the collision occurred.  He accepted the evidence of the appellant that the level crossing bells were still ringing and the lights still flashing when he was struck by the semitrailer.  On that finding the learned Trial Judge found that the respondent was guilty of negligence in commencing to move off before the signals had stopped operating.  His Honour found that the respondent should have waited until the bells had finished their noise and the lights had completed operating before the respondent moved away.
26 The learned Trial Judge also found that the appellant had been guilty of contributory negligence in positioning his motor vehicle in front of the Prime Mover in such a position as to put himself in danger.  He found that the appellant should have appreciated that there would be a real risk that the respondent would not see his motorcycle.
27 After making findings of both negligence and contributory negligence  His Honour apportioned liability 30 per cent against the respondent and 70 per cent against the appellant.  The agreed damages were therefore reduced by 70 per cent.
28 The appellant complains in his Notice of Appeal:

"1.     The learned Trial Judge erred in concluding that he was not satisfied that, with the exercise of proper or adequate attention, the defendant could have been aware of the plaintiff when the plaintiff came to rest in front of the prime mover.

2.     The learned Trial Judge erred in finding that the defendant was not negligent in failing to observe the plaintiff as the plaintiff made his way along the left side of the semi-trailer to its front.

3.     The learned Trial Judge erred in failing to have sufficient regard to the fact that the prime mover had a significant blind spot to the front and that this fact was known by the defendant.

4.     The learned Trial Judge erred in failing to have any or any sufficient regard to the differences in comparative sizes of the two vehicles.

5.     The learned Trial Judge erred in finding that the plaintiff knew or should have known that there was a real possibility that the defendant could not see him.

6.     The learned Trial Judge erred in apportioning liability 70% against the plaintiff and 30% against the defendant."

29 As I have said there is a cross appeal.  The respondent, in his cross appeal, complains:

"1.     The learned Judge erred in finding that the Respondent was negligent, having made the following findings of fact:-

(a)     that the Respondent’s semi trailer was positioned wholly within the left lane.

(b)     that the front wheels of the prime mover were about on the stop line.

(c)     that with the exercise of proper or adequate attention the Respondent could not have been aware of the Appellant when he manoeuvred in front of the semi trailer.

(d)     that the Respondent could not have detected the noise of the Appellant’s motor cycle.

(e)     that the Respondent was not negligent in not observing the Appellant making his way along the left side of the semi trailer.

1. The learned Judge erred in finding that the bells were still ringing and the lights still flashing when the Respondent moved off.  The Respondent says that finding is against the evidence and the weight of evidence.

1. In the alternative, the learned Judge erred in finding that the Respondent was negligent in failing to wait for the signals to stop operating before moving off in circumstances where the Respondent did not know and could not have anticipated the presence of the Appellant.

1. In the alternative, the learned Judge erred in finding that the Respondent should bear 30 per cent responsibility for the accident."

30 It was put on appeal that the apportionment was, in the circumstances, inappropriate and the learned Trial Judge had not properly assessed the relevant degrees of departure of the appellant and respondent from the respective standards of care expected of them by the law.
31 It was submitted that on the facts as found by the learned Trial Judge the departure by the respondent from the standard of care required of him was greater than that of the appellant.  It was put that if the respondent did have a blind spot, the respondent should not have moved the Prime Mover forward at least without giving an opportunity for those in the respondent’s path to clear the area.
32 It was also submitted that regard had to be had to the fact that the respondent’s departure from his standard of care was always likely to cause damage to others.  On the other hand the appellant’s departure from the standard of care appropriate to him was only ever likely to cause injury to himself.
33 The appellant’s submissions assumed the correctness of the findings by the learned Trial Judge except in one respect.  The appellant argued that the learned Trial Judge was wrong in concluding that the respondent was not negligent in failing to observe the approach of the appellant on his motorcycle down the left hand side of the semitrailer.
34 Ms Carr did observe the approach of the appellant.  She saw the headlight on the motorcycle which reflected in her mirror as the motorcycle came round the corner.  At that point the motorcycle was in the same lane as her motor vehicle.  She then observed the motorcycle travel behind the car behind her and then around the back of the semitrailer and down the south side of the semitrailer.  She next saw the motorcycle when it took up its position in front of the respondent’s semitrailer.
35 It was argued that the respondent had the same opportunity of observing the appellant’s approach as Ms Carr.  In those circumstances it was said that the respondent was negligent.
36 I agree with that submission.  It is clear on Ms Carr’s evidence that the appellant was there to be seen.  In my opinion the respondent should have observed the appellant.  The appellant came round the corner and approached the level crossing.  Undoubtedly the respondent should have observed the appellant when the appellant’s motorcycle travelled from the right hand lane into the left hand lane.  Moreover there is no reason in my opinion why the respondent could not have observed the appellant travelling down the left hand side of his semitrailer.
37 I agree that the respondent’s failure to observe the appellant was a departure from the standard of care expected of a driver.  Indeed the departure was even more significant having regard to the fact that the respondent knew that he had a blind spot in front of his vehicle.  In those circumstances he had to be vigilant to ensure that nobody approached his semitrailer and put himself or herself in danger within that blind spot. 
38 I accept the appellant’s contention that the respondent was guilty of negligence in that respect.
39 The respondent argued, both in defence of the appeal and in prosecution of the cross appeal, that the learned Trial Judge’s finding that the bells were ringing and the lights flashing when the respondent moved off was contrary to the evidence.
40 Specifically it was argued that such a finding was contrary to the evidence of Ms Carr, who had been accepted by the learned Trial Judge on all matters. 
41 It was pointed out that the appellant’s own evidence was that the respondent’s semitrailer did not commence to drive off until the boom gate was three quarters of the way up.  Le Dun Tran, a professional engineer, gave evidence, which was accepted by the learned Trial Judge, that the bells and lights operating on the boom gate cease to operate when the boom gate is at about 70 degrees from the horizontal on the upward swing.  That would suggest on the appellant’s own evidence that at the time the respondent’s Prime Mover moved off the bells and lights were not operating.  Moreover, the appellant’s evidence was that Ms Carr moved her vehicle from her stationary position before the respondent did.  It was further argued that Ms Carr’s evidence was that she did not move off until the boom gates went up and the lights had stopped flashing.  She said she moved off well before the respondent.
42 I must say I have difficulty in understanding how the learned Trial Judge could have made the finding that he did.  There was no evidence to support a finding that the respondent’s semi trailer began to move at the time which the learned Trial Judge found.  There was credible evidence from Ms Carr, who was accepted on all other matters, contrary to the finding made by the learned Judge.  There was also the appellant’s own evidence that the boom gate was in a position inconsistent with the alarms being activated at the time when his motor cycle was struck, and that Ms Carr’s motor vehicle drove away before the respondent’s.  Lastly there was the respondent’s evidence, consistent with all other evidence, that Ms Carr’s vehicle moved away first.
43 It is fundamental, of course, in a consideration of both the appeal and the cross appeal, to determine whether or not that finding should stand. 
44 In my opinion the finding that the respondent moved away at a time when it was unsafe so to do cannot stand.  In my opinion there was no evidence upon which a finding that the respondent’s semi trailer moved away prematurely could be made.
45 In the end result I differ from the learned Trial Judge in two respects.  I believe that the appellant has succeeded in establishing that the respondent was guilty of negligence in failing to keep a proper look out.  On the other hand, I believe that the respondent has been successful in establishing that the learned Trial Judge erred in his finding that the respondent was guilty of negligence in moving off from the stationary position.
46 As my conclusions differ from the learned Trial Judge I must assess, for myself, the question of apportionment.  I think the respondent’s failure to keep a proper look out was a significant departure from the standard of care expected of a driver of the type of vehicle being driven by the respondent, especially since the vehicle had a blind spot.  The appellant’s manoeuvre showed that the appellant failed to take the appropriate care for his own safety.  However his manoeuvre was never likely to cause harm to any other person.
47 In my opinion it is not possible to distinguish between the respective departures of each of the appellant and the respondent and therefore it would be appropriate to apportion liability for the damage suffered by the appellant as 50 per cent to the appellant and 50 per cent to the respondent.
48 I would propose the following orders:

1.     That the cross appeal be dismissed.

2.     That the appeal be allowed and the judgment entered in favour of the appellant by the learned Trial Judge on 8 April 1998 be set aside.

3.     That liability be apportioned as 50 per cent to the appellant and 50 per cent to the respondent.

4.     That the appellant recover from the respondent the sum of $152,500 inclusive of interest.

5.     That the respondent pay the appellant’s costs of action to be taxed.

49 I would hear the parties as to costs of the appeal.
WICKS J

50 This appeal arises out of a road accident between a motorcycle ridden by the appellant and a semi-trailer driven by the respondent which occurred at a railway crossing at Dry Creek.  The appellant suffered personal injury.
51 The quantum of the appellant’s damages has been agreed at $305000.  The issue of liability for the accident came on for hearing before a Judge in the District Court of South Australia, where his Honour apportioned liability 30% against the respondent and 70 per cent against the appellant.  He entered judgment for the appellant in the sum of $91500 and ordered the respondent to pay the appellant’s costs on a party and party basis. 
52 Both parties were dissatisfied with his Honour’s judgment and have appealed and cross-appealed respectively to this Court.
53 The accident took place at about 4.45 am on 7 May 1993 at a railway crossing at Magazine Road, Dry Creek.  The respondent was driving a semi-trailer in a southerly direction along Churchill Road and turned right at a T-junction into Magazine Road.  He proceeded a short distance along Magazine Road to a railway crossing which at the time was being used by a goods train.  The crossing was fitted with boom-gate, flashing lights and bells which were in operation. 
54 After turning into Magazine Road, the respondent drove his semi-trailer into the left-hand lane at the crossing and pulled up with his front wheels on the stop line to await the passing of the goods train which he estimated took approximately five minutes to clear the crossing.  The distance between the stop line and the eastern most railway line was 9.5 metres and the distance between the stop line and the boom-gate in the southern most lane was 5.5 metres.

55 Shortly after the respondent pulled up at the crossing, a motor car driven by Ms Sandra Carr, pulled up in the right-hand lane alongside the respondent’s semi-trailer.
56 While the respondent was stationary at the crossing, the appellant, riding his motor cycle down Churchill Road, turned into Magazine Road and approached the crossing.  His headlight was illuminated.  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 in front of the prime mover.  In that position, the appellant waited for the train to pass.
57 In her evidence, Ms Carr described the appellant as manoeuvring his motorcycle from the left of the truck to a position in front of it.  He seemed to move backwards and forwards in order to straighten it up.  She described the movement as "wiggling",  as if the appellant were trying to fit his machine into a confined area.  The evidence of Ms Carr and the appellant on this point do not differ in any material respect.  It is not clear from the evidence whether the appellant was sitting in an upright position or whether he was crouched over the handlebars of the motorcycle.
58 The train passed and the boom-gate began too rise .  Ms Carr was the first across the crossing and the semi-trailer followed.  On moving off,  the semi-trailer struck the appellant’s motorcycle from behind. The appellant was knocked to the ground.  He sustained injury when the left front wheel of the prime-mover  passed over his legs and feet. 
59 At the time the accident occurred , it was dark but the area appears to have been well-lit with street lights.
60 The appellant said that at about the time the respondent’s vehicle moved off, the boom-gate was about 75 degrees to the horizontal.  The bells were ringing and the lights were still flashing.  On the other hand, it was the evidence of the respondent that he had waited to move off until the bells and lights had stopped operating.
61 Evidence of the witness Le Dung Tran, a professional engineer whose job it was, at least in part, to supervise the signals at railway crossings, including the crossing in question, was that the boom-gate, through a switch mechanism operated the bells and lights at the crossing and that they ceased operating when the gates were 70 degrees from the horizontal on the upward swing.
62 The learned trial Judge held that in commencing to move off before the signals had stopped operating, the respondent was negligent.  He should have waited until the bells and lights had stopped operating. He accepted the evidence of the appellant on the point and also the evidence of Le Dung Tran.  It would appear that the signals on the boom-gate had ceased to operate when the respondent moved off.  Moreover, as it is generally conceded that the gates in question were partially lifted when the respondent moved off, only a second or two would need to elapse before the gates were 70 degrees from horizontal when the lights and bells ceased to flash and ring.
63 It appears that the boom-gate was almost fully lifted when the respondent’s vehicle began to move off and that it would have been in the vertical position by the time the respondent’s vehicle reached it. 
64 In moving off as he did, I do not think that the respondent was negligent.  I do not agree with the finding of the learned trial Judge in relation to the lifting of the boom-gate to which I have already referred.
65 Photographs were put in evidence showing the view from the driver’s seat of the prime mover of the person seated upright on a motorcycle.  The photographs were taken in broad daylight.  The first and second photographs show the rear wheel of the motorcycle 0.5 metres ahead of the front bumper bar of the prime mover.  The helmet is not visible.
66 Photographs 3 and 4 show the rear wheel of the motorcycle 1 metre in front of the bumper bar of the prime mover.  Again the motorcycle helmet cannot be seen. 
67 The fifth and sixth photographs show the rear wheel of the motorcycle 1.5 metres in front of the bumper bar of the prime mover.  In photograph number 6, the helmet of the motorcycle rider is shown to be coming into view.  It can only be seen through the perspex insect deflector mounted on the top of the bonnet of the truck.  In all probability, if the motor cyclist were crouched over his handlebars, he could not be seen at this distance.  Also the motor cyclist could only be seen through the perspex. 
68 Further photographs show the helmet, neck and back slowly coming into view.  It is not until the rear wheel of the motorcycle is 4.5 metres in front of the bumper bar that its image begins to protrude above the insect deflector and it is not until the rear wheel is between 5 and 10 metres from the bumper bar that a reasonable view of the motor cyclist’s helmet and body is evident from above the insect deflector. 
69 The above tests were made in daylight.  Mr L W Emerick, the person who conducted them, gave evidence at the trial.  What could be seen through the perspex insect deflector would, according to Mr Emerick, depend on the intensity of the light at the time.  There was no evidence of the visibility of a motorcycle helmet through the perspex deflector in the lighting conditions existing at the time of the accident.
70 The respondent did not hear or see the appellant’s motorcycle  coming up alongside his vehicle or at any other time prior to the  collision which occurred.  In the circumstances, the state of the evidence would not permit a finding to be made that the respondent should have heard the engine of the motorcycle above the noise of the truck.  The prime mover was fitted with a side mirror on each of the cabin doors.  I do not know precisely what would have been seen through them but whatever it was,  the driver of the truck should have seen the headlight of the motorcycle coming up alongside the stationary truck on the left-hand side. 
71 I refer to the following passage from the judgment of Mason J, as he then was, in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40, At p47, he said:
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."

72 It should have been possible for the respondent to see the appellant’s motorcycle, or at least its illuminated headlight, in the mirror affixed to the left door of the prime-mover as the motor cycle made its way up to the crossing on the left-hand side of the respondent’s semi-trailer.  Although the respondent could not have seen the appellant on his motorcycle once it had passed the mirror on the left-hand door, he should have been aware that the motorcycle was in the vicinity and that there was a risk which was neither far-fetched nor fanciful that the prime-mover would collide with the appellant and his motorcycle once the train had passed and he had commenced to proceed across the crossing.  In the circumstances, the respondent was negligent in failing to keep a proper lookout while his semi-trailer was stationary at the railway crossing.
73 The final question is to consider the matter of apportionment of liability. As a general rule, the question of apportionment by the trial Judge should be varied only in rare and exceptional cases: The MacGregor (1943) AC 147 per Lord Wright at 200-201, and Pennington v Norris (1956) 96 CLR 10 at 16.
74 The above principles in relation to apportionment have no application where an appellate court has made findings of negligence which are different from those found by the trial Judge as is the case here.  In those circumstances the question of apportionment requires to be approached de novo.
75 In the passage from The MacGregor referred to above, Lord Wright said:
"I do not say ... that under proper conditions ... the judge’s apportionment might not be interfered with by the appellate court, but I do repeat that it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and facts."  (Emphasis mine.)

76 The passage from The MacGregor which I have just quoted was approved in this State in Pollard v Ensor (1969) SASR 57 at pp61 and 62.
77 In the present case I am conscious that the plaintiff, in placing his motorcycle in front of the respondent’s prime-mover where he could not be seen, was largely the author of his own misfortune and should bear the major responsibility for the injury which he sustained.  I would retain the apportionment fixed by the learned trial Judge of 70 per cent against the appellant and 30 per cent against the respondent.
78 As the effect of the judgment I would propose would be to retain the status quo, I would dismiss the appeal.