Parr v Elphick - [2004] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PARR v ELPHICK
Judgment of His Honour Judge Lee
28 October 2004
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES
Claim for damages for personal injury sustained in motor vehicle accident – negligence and contributory negligence only issues in dispute – collision in intersection controlled by traffic lights – when green light for defendant turned to amber, he elected to drive his truck through intersection notwithstanding that he could and should have stopped – plaintiff rode motorcycle in bicycle lane to left of stationary traffic, and failed to ride defensively with respect to both lookout and speed – held that plaintiff’s damages should be reduced by 30 per cent.
Australian Road Rules, Rules 153(1), 141 & 128, referred to.
Sibley v Kais (1967) 118 CLR 424, applied.

PARR v ELPHICK
[2004] SADC 150

This is a claim for damages for personal injury sustained by the plaintiff as the result of a motor vehicle accident on 1 March 2001. Damages have been agreed. Negligence and contributory negligence are the issues that remain in dispute.
The accident occurred in peak hour traffic about 5:30pm at the intersection of South and Sturt Roads at Bedford Park. South Road runs northeast and southwest. Sturt Road runs west and east. Sturt Road changes to Shepherds Hill Road on the eastern side of the intersection.
The plaintiff was riding his 600cc Yamaha motorcycle southwest along South Road and the defendant was driving his Volvo truck and trailer east along Sturt Road. They collided in the intersection. The collision was seen by a number of witnesses. The intersection was controlled by lights, and it is common ground that, at the time of the impact, the lights were green for the plaintiff and red for the defendant.
Before turning to the versions of the parties and their witnesses, I will mention additional matters about which there is no dispute:
1.The southeastern carriageway of South Road comprised, from left to right, a bicycle lane, four lanes for vehicles intending to travel straight ahead, and two lanes for vehicles intending to turn right into Sturt Road.
2.The width of the bicycle lane was 1.2 metres, and the width of each of the traffic lanes was 3.2 metres.
3.The northern carriageway of Sturt Road comprised, from left to right, two lanes for vehicles intending to turn left into South Road, three lanes for vehicles intending to travel straight ahead, and one lane for vehicles intending to turn right into South Road.
4.A continuous white line, which I will call the “stop-line”, marked all entrances to the intersection.
5.The traffic lights at the intersection were vehicle and pedestrian activated. A computerised system determines green phase times and phase sequences in response to prevailing traffic flows. For eastbound vehicles on Sturt Road, the green phase of the traffic lights ran for a minimum time of 6 seconds, the amber phase ran for a fixed time of 4 seconds, and the red phase coincided with the red phase for southwest bound vehicles for a fixed time of 4.5 seconds.
6.The fixed time of 4.5 seconds means that an eastbound vehicle can travel in the intersection against the red light for 4.5 seconds before the red light for southwest bound vehicles turns to green. A witness from Transport SA explained that this 4.5 second “all red sequence” is based upon the width of the intersection and the maximum speed, and is designed to allow vehicles a period of grace to clear the intersection before any vehicle can enter on a green light.
7.Although it is not possible to discover actual green phase times for any particular time in the past, it is likely, given the level of peak hour congestion, that the green phase time on this occasion was significantly in excess of the minimum.
8.As they entered the intersection, the plaintiff was riding his motorcycle in the bicycle lane of South Road and the defendant was driving his truck and trailer in the straight ahead left hand lane of Sturt Road. The approximate point of impact can be located by imaginary extensions of those lanes to the place where they meet in the eastern corner of the intersection.
9.The defendant’s truck left skid marks prior to the impact of approximately 6 metres in length.
10.The defendant’s truck, drawbar and trailer were together of approximately 15.9 metres in length.
I turn now to the various versions of what occurred.
The plaintiff was travelling to the Flinders Medical Centre to visit a friend at the time. He told me that he approached the intersection in the left hand lane of South Road, and then noticed that traffic was beginning to bank up against a red light. The vehicle immediately to the front of him was a bus. He moved to the left into the bicycle lane so that he could pass the bus on its left hand side. When he was three quarters along the length of the bus, the red light changed to green. He accelerated and overtook the bus and the other banked up traffic on his right. He remembers very little else. He did not see the truck before the collision.
Fiona Malcolm was the driver of a southwest bound vehicle in the left hand lane of South Road. She told me that she was the first vehicle in that lane to stop at the intersection in response to a red light. Vehicles in the lanes to her right also stopped. The lights changed to green. She moved forward, and the vehicles to her right moved forward as well. She looked to her right, saw the defendant’s truck entering the intersection, and stopped again. At this point she was about a cars length over the stop-line. The vehicles to her right also stopped. When she first saw the truck, it was moving slowly over the stop-line. She saw the motorcycle enter the intersection on her left. It veered to its left, and collided with the front of the truck. She estimated that, before the impact, the speed of the truck was approximately 30 kilometres per hour, and the speed of the motorcycle was approximately 50 kilometres per hour.
Bradley Groth was the driver of an eastbound vehicle in the straight ahead right hand lane of Sturt Road. He told me that he stopped behind vehicles – he believed there were three - when the lights were red. A number of other eastbound vehicles had also stopped. He saw the defendant’s truck in the left hand lane. He thinks that there was one vehicle ahead of the truck. The lights changed to green. As the vehicles ahead of him entered the intersection, the lights changed to amber. He stopped, and the truck kept going. He stopped before the truck entered the intersection. It was moving very slowly on an uphill grade. Just before the truck reached the middle of the intersection, most of the southwest bound vehicles in South Road moved forward, then stopped. He caught a glimpse of the motorcycle. It was moving “fairly quickly”. He saw the impact. The truck was moving at 10 kilometres per hour or less at that point.
Laurence Hall was a passenger in the bus mentioned by the plaintiff. He told me that he was sitting about half way back on the left hand side. He heard the sound of a motorcycle, and then saw it travelling down the left hand side of the road. The bus started to move off and, if he recalls correctly, then stopped abruptly. He heard an impact and saw the motorcycle scraping along the road on its side. He did not see the truck until afterwards. The motorcycle was not going excessively fast.
So much for the plaintiff and his witnesses.
The defendant told me that he had been driving trucks and other heavy vehicles for over 20 years. The truck that he was driving at the time of the accident was a crane truck and trailer with 16 forward gears. The weight of the truck was 15 tonnes with a 5 tonne load comprising moss rocks and jetty piers. He was stationary with one car in front of him at the intersection. The lights turned green and he entered the intersection. The lights then changed to amber. He hesitated but found that he was too far into the intersection. He checked his mirrors and saw cars behind him. So he continued through the intersection. When the lights turned from green to amber, the truck would have been forward of the stop line, the trailer would have been behind the stop line, the truck would have been in fourth gear, and he would have been travelling at 10 to 15 kilometres per hour. When he was about mid-way through the intersection, the lights would have turned from amber to red. He looked at the traffic to his left and acknowledged with a hand gesture that there was nothing he could do. As he accelerated, he concentrated on the traffic to his left, especially for the possibility of children running out in front. He was doing everything that he possibly could. He was almost through the intersection when he noticed the motorcycle in the bicycle lane about a third of the way back from the front of the bus. At that point he hit the brakes. He was travelling at not more than 20 kilometres per hour in fifth gear. The motorcycle tried to swerve around him, but instead hit the right hand corner of the bulbar of the truck. He had become stationary by the time of the impact.
The defendant was asked in cross-examination whether it occurred to him to let the car ahead of him go through and to wait for the next set of lights to make sure he got through with safety, and his reply was:
“I have been driving for 20 years and I have never experienced a light sequence of that manner. If there was maybe three or four cars in front of me I would have idled off in first gear and not considered entering the intersection, but with only one car in front of me that was not a consideration of any risk or danger.”
The defendant said that he had traversed less than half of the intersection in the time that the lights took to turn from green to amber to red. He said that the motorcycle would have been travelling at 60 kilometres per hour when the collision occurred.
Alison Field was the driver of a southwest bound vehicle in the second lane from the left in South Road. She was stationary, and the first vehicle in her lane, at the intersection. The lights for her were red. The lights then changed to green. She first saw the truck when it was in front of her in the middle of the intersection. It was travelling very slowly. She did not move forward. She saw the motorcycle come through on her left and collide with the truck. Its speed before the impact was 50 to 60 kilometres per hour, and the speed of the truck was around 20 to 30 kilometres per hour.
I turn finally to my findings and conclusions.
Despite the passage of time since the accident, and the inevitability of some reconstruction, the eyewitnesses gave satisfactory accounts of their recollections of relevant events. When Fiona Malcolm moved forward on the green light and saw the defendant entering the intersection, the lights for the defendant must have been red. When Bradley Groth stopped after seeing the lights change to amber, having reached the stop-line in advance of the defendant, the defendant must have been sufficiently far away from the stop-line to have stopped as well. When Alison Field saw the truck in the middle of the intersection after the lights for her had turned to green, the defendant must have been a significant distance to her right when the lights for him turned to red. Indeed, at the precise point when the lights for southwest bound traffic turned to green, the defendant already would have been travelling for 4 seconds during the amber phase and 4.5 seconds during the all red sequence. It follows that I do not accept the defendant’s assertion that the lights for him turned to red when he was half way through the intersection. Although I am unable to say precisely where the defendant was in relation to the stop-line when the lights for him turned to red, I am satisfied that he elected to proceed on the amber light when he could have stopped at the stop-line, and that his decision, especially given his knowledge of the weight and slow acceleration speed of his vehicle, amounted to an error of judgement on his part, and to a breach of his duty of care.
As for the plaintiff, I am satisfied that his use of the bicycle lane to overtake traffic on its left after the lights for him had turned to green, coupled with his entry into the intersection at a speed which removed his chance of seeing the defendant in time to take appropriate evasive action, amounted to contributory negligence on his part.
In his defence, the defendant alleges that the plaintiff was in breach of the Australian Road Rules by riding his motorcycle in a designated bicycle lane (Rule 153(1)), by overtaking vehicles on the left hand side (Rule 141), and by entering the intersection when it was blocked (Rule 128). Although these Rules are not necessarily definitive of the plaintiff’s civil responsibility, see Sibley v Kais (1967) 118 CLR 424, I treat them, in the particular circumstances of this case, as a measure of the plaintiff’s common law duty to ride defensively and with reasonable care.
The final question is the extent to which the plaintiff’s damages should be reduced. In electing to enter the intersection as and when he did, the defendant’s manner of driving was the major cause of the collision. The plaintiff’s contribution, on the other hand, was not insignificant. Even though he had the traffic lights in his favour, he should not have proceeded as and when he did. Quite apart from his use of the bicycle lane to pass vehicles on the left, he failed to ride defensively with respect to both his lookout and his speed.
In the final analysis, I determine that the plaintiff’s damages should be reduced by 30 per cent.