Lacanale v Rudko No. Scgrg-00-191

[2001] SASC 10

LACANALE v RUDKO
[2000] SASC 10

Full Court:  Prior, Olsson and Duggan JJ

1      On 15 February 1998 the appellant was injured when the motorcycle he was driving collided with the respondent’s motor vehicle when, as a District Court judge found, the respondent “executed a sharp manoeuvre to turn into New Norton Summit Road, unaware, until too late, of the presence of the plaintiff’s motorcycle.”

2      The District Court judge was asked to determine the question of liability for the accident.  His Honour found that the appellant had made out a claim in negligence against the respondent.  However, finding that the appellant had failed to take care for his own safety, his Honour said that it was “impractical … to apportion liability other than equally between the plaintiff and the defendant”.  Upon that basis his Honour entered judgment “against the defendant in favour of the plaintiff for one-half of his damages to be assessed.”

3      By this appeal, the appellant says that this Court should interfere.  It was submitted that the apportionment of liability arrived at by the trial judge does not fairly reflect a just and equitable apportionment of responsibility having regard to the facts as found by the trial judge.

4      The trial judge’s task was to be satisfied that the respondent was negligent and consider the claim against the plaintiff, that he was guilty of contributory negligence.  If contributory negligence were made out as against the appellant the damages recoverable in respect of his injuries are reduced, “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.[1]”  The appellant’s damages are to be reduced to the extent that is just and equitable.  This depends on the degree or extent of responsibility which the Court thinks the appellant, as plaintiff and claimant, should bear.  Apportionment depends on culpability or responsibility.  The whole of the circumstances of the accident, the events leading up to it and the conduct of each driver has to be considered and weighed.  The correct apportionment is a question for the exercise of the trial judge’s discretion.  The exercise of that discretion is based on the proved facts and their significance.  The discretion placed on the trial judge pursuant to s 27A of the Wrongs Act, 1936 is a very wide one.  Much latitude must be allowed to the trial judge in deciding what is just and equitable.  It is only in exceptional circumstances that it is right for an appellate court to interfere with a trial judge’s apportionment[2].

[1]      Wrongs Act 1936, s 27A(3)

[2]               Pennington v Norris (1956) 96 CLR 10 at 15 - 16; White v May (SAFC, November 1995, unreported)

5      The collision occurred some 78 metres after the appellant had left a service station to travel up Magill Road to Summertown.  Ahead of him were two vehicles.  He passed the first of them on the left side.  That vehicle was driven by a Mr Klemitz.  The trial judge was most impressed with the evidence of that man.  His evidence was that he was travelling about four or five car lengths behind the car driven by the respondent.  Mr Klemitz said that his speed and that of the other motorcar was about the same and that the two vehicles were near to the centre line, marked on Magill Road.  Klemitz heard a loud noise behind him and looked in his rear view mirror to see a motorcycle accelerating past him on his left hand side.  He witnessed the collision, saying that the respondent had left no time to make a left hand turn and that he gave no indication of that turn, turning at approximately 50 kph into New Norton Summit Road, across the path of the appellant’s motorcycle.  Klemitz’s assertion that there was no indication of the respondent’s intention to turn was confirmed by another witness, Mr Barnes.  Barnes had spoken briefly to the appellant at the service station. He said that he was some 60 metres away from the collision.  He described the collision as having occurred when there was a sudden movement to the left by the respondent’s vehicle, with no indication from the turning motor vehicle of its intention to do so.

6      The trial judge did not accept the defendant’s assertion that he indicated his intention to turn left.  Evidence called by the respondent from two occupants of a car which was about to stop at the junction of New Norton Summit Road with Magill Road did not take the matter any further.  The driver and his 12 year old son thought there may have been an indication of an intention to turn being given by the vehicle driven by the respondent.  Likewise, there was evidence from them suggesting a lower rate of speed as the vehicle turned towards New Norton Summit Road.  That evidence was not consistent with that of Mr Klemitz.  The trial judge’s view was that it was upon the evidence of Mr Klemitz that he could and should place “the greatest reliance”.  His Honour spoke of the whole of the evidence being -

“fairly summarised by saying that the (respondent’s) motorcar commenced a sudden turn without warning from a position near the centre line of Magill Road into New Norton Summit Road; that the (appellant’s) motorcycle accelerating past his vehicle collided with the left hand side of the motor vehicle driven by the (respondent); that neither the (appellant) nor (respondent) took any evasive action - on the (respondent’s) part, by braking or indicating its intention to turn and, on the (appellant’s) part, by braking or swerving.”

7      The trial judge found the respondent negligent because of a failure to keep a proper lookout.  His Honour said that, with particular reliance upon the evidence of Mr Klemitz, the respondent’s lookout -

“was bad, that his consciousness of the traffic situation around him was not sufficient and that he overshot the junction of New Norton Summit Road to an extent, realised that he had done so too late and executed a sharp manoeuvre to turn into New Norton Summit Road, unaware, until too late, of the presence of the (appellant’s) motorcycle.”

8      His Honour then said that he found that the appellant -

“recklessly attempted to overtake the vehicles driven by the (respondent) and Mr Klemitz on their near or left hand side, relying upon the superior accelerative power of his motorcycle, and under the assumption that each of those two motorcars were set on a course to proceed from Magill Road up Old Norton Summit Road in such a way as he could complete his overtaking manoeuvres and get ahead of them.  That, in my view, was a reckless assumption and one in which the (appellant) failed to take care for his own safety.”

9      His Honour then said that each side had made out a claim in negligence against the other.  Of course it must be acknowledged that with respect to the allegation of contributory negligence made against the appellant by the respondent, the reference to negligence must be understood as a reference to a finding of fault in the appellant.  That is plainly what the trial judge meant by his reference to the failure to take care for the appellant’s own safety.  However, the District Court judge then said that attempting to weigh up relative departures from proper standards of care on the part of each of the parties revealed, for him, “so little to separate them that it is impractical … to apportion liability other than equally between (them).”

10     Acknowledging the principles already referred to, we do think that this case does call for interference by this Court.  In our view, the findings made by the trial judge identify a share in the responsibility for the damage, less against the appellant than that resulting from his Honour’s order that the appellant have judgment for one half of his damages to be assessed.  In our view, the appellant certainly was riding his motorcycle at a speed which was excessive in the circumstances.  Likewise, the appellant was at fault in intending to overtake the respondent on the incorrect side of the respondent’s vehicle.  However, those faults are much less significant than the respondent’s act of turning without warning and without any apparent drop in speed across the appellant’s path, into a side road.  The action of a young, inexperienced driver involves a greater share in responsibility for this accident than that of the appellant.  It is not just and equitable that the damage suffered by the appellant be reduced by a half having regard to his lesser share in the responsibility for the damage. 

11     We therefore allow the appeal, set aside the order made by the trial judge and order that the appellant’s damages be reduced by 30 per cent.