O'Hara v Gamblen No. DCCIV-00-1136

O'HARA V GAMBLEN
[2002] SADC 44
Judge Burley
Civil

In this action the plaintiff claims damages for personal injury sustained during the course of a motor vehicle accident. The parties have agreed the quantum of the damages. Liability is in dispute.
It is common ground that on 27 August 1997, a vehicle driven by the plaintiff and a vehicle driven by the defendant came into collision at or near the junction of Shelley Street and Hampden Street, Firle. The accident occurred at about 4.45 pm on that day. The weather was clear and visibility was good. Shelley Street runs in an east-west direction and Hampden Street runs in a north-south direction. The photographic evidence indicates that at that part of Shelley Street there was an unbroken centre line up to the commencement of the junction. There was no centre line at the junction, but the centre line continued on the western side of the junction. To the left of west-bound vehicles there was an unbroken white line which designated the left-hand side of the single driving lane. In between that white line and the kerb were parking bays delineated by raised areas bordered in concrete. These raised areas acted as traffic barriers so that the spaces east and west of such barriers could only be used for parking as opposed to the passage of traffic.
The eastern end of Shelley Street forms a junction with Glynburn Road.
In her statement of claim the plaintiff alleges that she was travelling in a westerly direction along Shelley Street at a time when the defendant’s vehicle was directly in front of her. She has pleaded that as the defendant’s vehicle neared the T‑junction of Hampden Street and Shelley Street, the defendant slowed her vehicle and moved to the left into the parking bays adjacent to Shelley Street. She asserts in the pleading that as her vehicle drew level with the defendant’s vehicle, the defendant turned on her right-hand indicator and veered into Shelley Street directly across the path of the plaintiff’s vehicle in an attempt to undertake a U-turn. A collision occurred as a result of this manoeuvre. The plaintiff alleges that as a result of the collision, her “vehicle was slung across the road”.
In her defence the defendant does not dispute that she was travelling in a westerly direction along Shelley Street immediately prior to the collision, but denies that she moved her vehicle towards the left-hand side of Shelley Street. She has pleaded that at the relevant time “the plaintiff was attempting to overtake the defendant’s vehicle on the incorrect side of the road at the time that the defendant was attempting to perform the turn”. She has pleaded that her vehicle was in a normal position in the intersection [this should be junction] with the right-hand indicator activated. She has pleaded “that as she commenced the turn the plaintiff attempted to overtake her vehicle on the right hand side and incorrect side of the road”.
The plaintiff gave evidence, as did the defendant and her two sons who were in the vehicle being driven by her.
The plaintiff gave evidence consistent with her counsel’s opening but the version of events given by her in her evidence is in marked contrast to what was pleaded in the statement of claim. The defendant and her two sons, on the other hand, gave evidence consistent with what has been pleaded in the defence.
It is common ground that Hampden Street is approximately 300 metres west of Glynburn Road. In evidence the plaintiff said that she turned right from Glynburn Road into Shelley Street. She travelled along Shelley Street in a westerly direction behind a motor vehicle which is not referred to in the pleadings and has not been referred to in any of the documentation tendered in evidence during the course of the trial. The plaintiff said that she travelled behind this vehicle, which she could only describe as a dark coloured vehicle, until it reached the junction of Shelley Street and Hampden Street. The dark vehicle turned right into Hampden Street. The plaintiff said that as it was turning right, she first became aware of the presence of the defendant’s vehicle. At that point she said that the defendant’s vehicle was alongside the southern kerb of Shelley Street approximately adjacent to a bus shelter which was situated on the footpath. She saw that the right-hand indicator of the defendant’s vehicle was on, although in the time scale that applied, she saw only one “blink” of that indicator. Having seen the defendant’s vehicle she continued west along Shelley Street and as she came alongside the defendant’s vehicle it suddenly pulled out to the right and collided with the side of the vehicle being driven by the plaintiff. She said that the force of the impact forced her car on to the other side of the road over the northern kerb of Shelley Street so that she came to rest between the front boundary wall of one of the houses on her right-hand side and a tree on her left-hand side approximately level with the front left-hand wheel of her vehicle. She was still facing in a westerly direction when she came to rest.
Prior to the impact the plaintiff said that she had been travelling at approximately 55 kilometres per hour (T22/19). She was correctly positioned in the southern carriageway of Shelley Street and that it was not until the collision occurred that her vehicle moved from the carriageway across the centre line and on to the other side of the road and then on to the northern footpath.
The plaintiff said that after she came to rest she noticed that the defendant’s vehicle had come to rest alongside the northern kerb of Shelley Street with the defendant’s vehicle still facing in a westerly direction. She was able to see the defendant in her vehicle. She said that her nose was bleeding and that she called out to the defendant to assist her. She said that the defendant refused to do so and remained in her vehicle. The general effect of the plaintiff’s evidence is that the defendant refused to co-operate with her once both vehicles had come to rest. The plaintiff did not want to move out of her vehicle because she was suffering from an injury to her nose and she also felt back and body pain.
This is an important part of the plaintiff’s evidence because it is in marked contrast to the evidence given by the defendant and her two sons. The effect of their evidence is that after the collision, once the defendant’s vehicle had come to rest, the defendant checked that her two sons had not been injured and then directed her attention to the plaintiff. All three of them said that the plaintiff at that time was screaming that she had a broken nose and that they could see she was bleeding from the nose. All three of them said that the defendant got out of her vehicle with a box of tissues and gave them to the plaintiff.
When pressed about this in cross-examination, the plaintiff accepted that a box of tissues belonging to the defendant was provided to her. She said, however, that the tissues were not handed directly to her but to a bystander who in turn handed on the tissues to the plaintiff.
I do not accept this aspect of the plaintiff’s evidence. It seems to me, as was submitted by counsel for the defendant, that this evidence was given in an attempt to blacken the character of the defendant. Although the defendant, during the course of her evidence, was sometimes dogmatic, I accept that she and her two sons were truthful witnesses. It is clear that each gave evidence independently of the other because they each had varying degrees of recollection. The defendant’s elder son, Christopher, gave a clear and convincing version of what occurred. The younger son, Andrew, said, and I accept, that he had a clear recollection of the accident but that he was not very good with times, speeds and distances.
In preferring the evidence of the defendant and her two sons to that given by the plaintiff where there are material conflicts, I have also taken into account the unexplained marked difference between what was pleaded in the statement of claim and the version given by the plaintiff during the course of her evidence. That difference indicates to me, at the very least, that her evidence cannot be relied upon in the face of clear, credible evidence given by the defendant and her two sons.
I reject the plaintiff’s evidence:
(a) that she travelled west along Shelley Street behind a dark vehicle;
(b)that she did not see the defendant’s vehicle until the dark vehicle turned right into Hampden Street;
(c)that when she first saw the defendant’s vehicle, it was close to the southern kerb of Shelley Street adjacent to the bus shelter.
I find that there was no third vehicle in the area of the junction prior to the collision. In particular, I find that there was no third vehicle between the plaintiff’s vehicle and the defendant’s vehicle as they travelled west along Shelley Street.
Because of my rejection of the plaintiff’s evidence and because none of the occupants of the defendant’s vehicle saw the plaintiff’s vehicle until at or immediately before the collision, there is hardly any direct evidence and very little indirect evidence of the path and speed of the plaintiff’s vehicle prior to the collision. I am prepared to accept the plaintiff’s evidence that as she approached the junction, she was travelling at about 55 kph.
I do not think that the plaintiff and defendant travelled in tandem west along Shelley Street because it is likely that the defendant and her sons, or at least one of them, would have become aware of the defendant’s presence behind them. It is more likely, and I so find, that the defendant entered Shelley Street well before the plaintiff but that the plaintiff caught up with the defendant some distance east of the junction because of the respective differences in the speed at which the cars travelled.
I turn to a consideration of the defendant’s evidence and that of her two sons. That evidence was given by video-link with the United Kingdom where the defendant and her family now reside.
The defendant said that on the afternoon of the accident she had collected her two sons from school and it was their intention to proceed to a hamburger outlet on the corner of Shelley Street and Glynburn Road. She said that she missed the turn into the hamburger outlet which was situated on Glynburn Road so she decided to turn left into Shelley Street with a view to executing a U-turn in that street and thereby return to the hamburger outlet. She said, and I accept, that as she proceeded west along Shelley Street, at a relatively low speed of about 30 kilometres per hour, she was looking for a place where she could safely execute the U-turn. She had indicated her intention to do so to her two sons.
As she approached the junction of Shelley Street and Hampden Street her vehicle was immediately to the south of the centre line of Shelley Street. The defendant said that as she approached the junction she slowed down and put on her right-hand indicator with the intention of executing a U-turn from her position on the southern carriageway of Shelley Street through the mouth of Hampden Street. She said that she drew to a stop. At that time her vehicle was facing west immediately to the south of the centre of Shelley Street. There was not at that point a marked centre line but I accept that she had not prior to stopping deviated from her westward path either to the south or to the north. She remained stationary with her indicator on for a matter of seconds before commencing the U-turn. She said that as she commenced to turn to the right, the front right-hand side of her vehicle was struck by the left-hand side of the plaintiff’s vehicle.
The defendant said that prior to slowing down as she approached the junction, she looked in the central rear vision mirror located in her motor vehicle and also the wing mirror located on the right-hand side of her vehicle. She did not detect the presence of another car behind her. She said that she also checked her rear view mirrors prior to executing the right-hand turn which was the first part of the U-turn which she intended to execute. She said again she did not detect the presence of another vehicle.
It is obvious that the plaintiff’s vehicle must have been behind her on each of the two occasions that she checked her rear vision mirror. If she did check the mirrors on either or both of those occasions, she failed to detect the presence of the plaintiff’s motor vehicle. When cross-examined about this aspect of the events prior to the collision, she said that it was her invariable practice to check her rear vision mirrors prior to executing such a manoeuvre. I infer from that, that she had, when giving evidence no actual recollection of having checked her rear vision mirrors on either of the two occasions referred to. I think she is mistaken in what amounts to a reconstruction of events on this crucial point. In my view, had she checked her rear vision mirror, on either of the occasions referred to, she could not have failed to have detected the presence of a vehicle behind her. That vehicle could only have been the plaintiff’s vehicle.
I find, on the balance of probabilities, that the defendant did not at any material time check her rear vision mirrors with a view to ascertaining what traffic, if any, was behind her. I do not accept her explanation that when she checked her rear vision mirrors the failure to detect the presence of the plaintiff’s vehicle was accounted for by the fact that the plaintiff’s vehicle was in a “blind spot”. Ordinary driving experience dictates that the presence of the plaintiff’s vehicle would have been detected by use of either or both of the rear vision mirrors referred to.
In arriving at that conclusion I have taken into account the plaintiff’s version that there was a third vehicle in between her vehicle and the vehicle being driven by the defendant. For the reasons stated earlier, I reject the plaintiff’s evidence that there was a third vehicle present. I find that prior to the collision the plaintiff’s vehicle was travelling directly behind the defendant’s vehicle. As such, had the defendant adequately used her rear vision mirrors, she would have detected the presence of the plaintiff’s vehicle.
During the course of his evidence, the defendant’s elder son, Christopher, said that immediately prior to the collision he saw the plaintiff’s vehicle in his peripheral vision at a time prior to the commencement of the right-hand turn intended by the defendant. He said that he expected his mother to brake to a halt in order to avoid a collision. I think that if the defendant had detected the presence of the plaintiff’s vehicle behind her attempting to overtake her on the right-hand side prior to the collision, she would have been able to take evasive action by braking, if she had been in motion, or by deferring the execution of the right-hand turn so as not to cross the path of the plaintiff’s vehicle.
On the basis of the evidence given by the defendant and her two sons, I find that prior to the collision the defendant was driving her motor vehicle immediately alongside and to the south of the centre line of Shelley Street intending to turn right into Hampden Street forming the first part of the execution of a U-turn through the mouth of Hampden Street. The speed of the defendant’s vehicle may have been as low as 30 kilometres per hour. As the defendant approached the junction she indicated her intention to turn right and slowed down further and came to a stop. She did not use her rear vision mirrors to ascertain whether or not there were any vehicles travelling behind her. She commenced the first part of the intended U-turn. In doing so she moved into the path of the plaintiff’s vehicle which was then in the process of overtaking the defendant. A collision then occurred between the two vehicles such that the front right-hand corner of the defendant’s vehicle struck the left-hand side of the plaintiff’s vehicle, initially at a point to the rear of the front left-hand mudguard of the defendant’s vehicle.
The plaintiff had no means of avoiding the collision other than to veer to the right once the collision took place. The plaintiff’s vehicle continued in a north-westerly direction along part of the northern carriageway of Shelley Street over the northern kerb of that street and came to rest on the footpath of Shelley Street to the northern side in between a wall and a tree.
The defendant’s motor vehicle continued in part obliquely across the northern carriageway of Shelley Street and came to rest with the right-hand wheels of the defendant’s vehicle alongside the northern kerb of Shelley Street at a point where it was to the east of the plaintiff’s vehicle.
I find that prior to the collision, the plaintiff was driving her motor vehicle behind the defendant’s motor vehicle, at a distance which I am unable to determine. I find that the plaintiff caught up with the defendant’s vehicle which was travelling relatively slowly in a westerly direction along Shelley Street. The speed of the plaintiff’s vehicle was approximately 55 kilometres per hour. The plaintiff saw before her a vehicle which was slowing down, approaching the junction of Shelley Street without giving any indication as to whether or not the vehicle was to continue to travel west along Shelley Street or as to whether or not a right-hand turn was intended. The plaintiff decided to overtake the defendant’s vehicle. It is likely that she accelerated for that purpose. At a point approximately 10 to 20 metres east of the commencement of the junction, the defendant signalled her intention to turn right into Hampden Street. This was at a time when the plaintiff was committed to overtaking the defendant’s vehicle and had no opportunity either to stop so as to avoid a collision or to slow down and pull in behind the defendant’s vehicle. The inevitable collision occurred.
I have based my finding as to the time at which the defendant activated her right-hand indicator on the evidence of Christopher whose estimate it was that this was approximately the distance from the intersection when the right-hand indicator was activated.
Given the above findings, I consider that the plaintiff was primarily responsible for the collision. It was negligent in the extreme on her part to attempt to overtake the defendant’s vehicle on the right-hand side when there was uncertainty as to whether or not the defendant would continue west along Shelley Street or turn right into Hampden Street. The proper manoeuvre on the part of the plaintiff would have been to slow down, remain behind the defendant’s vehicle until such time as the intentions of the defendant became evident. Had she done so, no collision would have occurred. Nevertheless, I consider that the defendant was in part responsible for the accident. Had she consulted her rear vision mirrors, she would have detected the presence of the plaintiff’s vehicle and she would have seen that the plaintiff was attempting to overtake her on the right-hand side. If she had seen the plaintiff’s vehicle in such a position, it was open to her to remain stationary if she was not then moving, or to become stationary if she was then moving slowly, to enable the plaintiff to overtake her. I also consider that she should have activated her right-hand indicator at a much earlier stage than 10 to 20 metres prior to the commencement of a junction. Had she done so, the plaintiff would have seen, probably at a time when she could take the appropriate action, that the defendant was intending to turn right into Hampden Street. In those circumstances a collision could have been avoided.
As I have said, I consider that the plaintiff was primarily responsible for the accident because she was the vehicle behind the defendant’s vehicle and it was her duty to drive in a speed and in a direction such that she could deal with any change in direction on the part of the vehicle ahead of her. She failed to do this.

As to the apportionment of responsibility, I am required “to compare the degree of departure of each of the parties from a standard of care of a reasonable man”: see Benton v Tea Tree Plaza Nominees Pty Ltd and Anor (1995) 64 SASR 494 at 512 per Lander J who has cited Pennington v Norris (1956) 96 CLR 10.
Various authorities were cited by Mr James, counsel for the defendant, to support his contention that the plaintiff was either 100 per cent responsible for the collision or that almost all of the blame should be attributed to the plaintiff. They are Doherty v Footner (1993) 170 LSJS 100; Cadzow v Colson, Unreported judgment of Debelle J, [1999] SASC 132, delivered on 1 April 1999; and Mugford v Ames (2000) 31 MVR 406. I take them into account but recognise that they are illustrations of the application of the relevant principles to the facts of those cases.
In light of the above findings, I consider that liability should be apportioned between the plaintiff and the defendant, 85 per cent to the plaintiff and 15 per cent to the defendant.
As damages have been agreed, there will be judgment for the plaintiff against the defendant for 15 per cent of the agreed damages.

[2002] SADC 44

30 April 2002