Pichler v Toombs No. DCCIV-97-370 Judgment No. D3773

[1998] SADC 3967

PICHLER v TOOMBS

Civil
Judge Allan

The plaintiff claims damages for injury and loss sustained in a road accident which occurred on 11 October 1994 when a motor cycle being driven by him came into collision with a motor car being driven by the defendant at North East Road Tea Tree Gully.

The quantum of damages has been agreed between the parties at $111,000. I note that it is agreed between the parties that, to this date, the defendant has paid on behalf of the plaintiff the sum of $36,372.25. The matter comes on for a decision as to the question of liability.

The accident occurred at about 8 p.m. Both vehicles were travelling in an easterly direction along North East Road at Tea Tree Gully, the defendant's vehicle travelling in front of that of the plaintiff. The plaintiff had turned on to North East Road from Shelley Street. The plaintiff's vehicle gradually approached the defendant's vehicle from the rear, and, in doing so, was travelling at a speed of about 40 kilometres per hour.

I pause to say at this stage that, in a general sense, I prefer the evidence of the plaintiff to that of the defendant. I found it more reliable.

The plaintiff was, to some extent, familiar with the road and this particular area.  On the other hand, the defendant was not.

It was the defendant's intention to go to a restaurant called Steventon Lodge, which is situated on the southern side of North East Road at Tea Tree Gully in the area where the accident occurred and which has a driveway on the southern side of the road to the restaurant.

Travelling at a speed of about 40 kilometres per hour, the plaintiff approached the rear of the defendant's vehicle. He slowed. At this stage, the defendant's vehicle was travelling in about the middle of the northern carriageway of the roadway. At this point, the roadway is divided into two, with one lane for vehicles travelling east and the other lane for vehicles travelling west. For a distance of about 200 metres, the plaintiff followed the defendant's vehicle. During this time, the speed of the defendant's vehicle slowed. As it approached the driveway to Steventon Lodge, it was travelling at a speed of about 20 kilometres per hour. The plaintiff was wary of the defendant's vehicle and any manoeuvre it might make, and he was wary of it because of the slow speed at which he was travelling; at least up to the time he pulled out to pass the vehicle, he was wary as to whether it would be turning left or right or going straight ahead although, as he said in evidence, he was concerned that it might turn to the right.

At a point just west of the driveway to Steventon Lodge, the plaintiff decided to pass the defendant's vehicle. He pulled to the right and accelerated, moving into the line of traffic for vehicles travelling in the opposite direction. There were no other vehicles coming in the opposite direction and, as best I can tell on the material before me, there were no vehicles coming from behind. As he pulled out to pass the vehicle in front of him, that vehicle, that is, the defendant's vehicle, had not given any indication of its intention to turn right. It had not moved to the centre of the roadway at that time either. As the plaintiff was in the act of passing the defendant's vehicle, he saw the passenger in the defendant's vehicle point to the right. As soon as he saw this movement, he moved his vehicle to the right and braked. The defendant's vehicle turned to the right and the plaintiff collided with the defendant's vehicle.  He came off his bike, coming to rest near a stone fence adjacent to the Steventon Lodge.  He was travelling at about 20 to 25 kilometres per hour at the point of impact.

At no time prior to the collision was the defendant aware of the presence of the plaintiff on the roadway. He was there to be seen. The defendant said in evidence that before turning to the right and before moving to the centre of the roadway, he activated his traffic indicator. I am not satisfied that he did so in time to enable the plaintiff to see such indication. It is possible, I suppose, that if he did activate the traffic indicator, it might have been at a time when the plaintiff was already in the process of passing, and perhaps not visible to him but, whatever the position, I am satisfied that when the plaintiff pulled out to pass the defendant's vehicle, no indication had been given of the defendant's intention to turn to the right.

The defendant also said that before turning to the right he moved his vehicle to the centre of the roadway. That conflicts with the evidence of the plaintiff.  I prefer the evidence of the plaintiff on that topic.

In my view, the negligence of the defendant was the substantial cause of the accident. He failed to keep a proper lookout. As I have said, the plaintiff was there and he was there to be seen and, with the exercise of a proper lookout, he would have been seen. He was also negligent in that he turned his vehicle across the path of the plaintiff's motor cycle when it was unsafe to do so. He also failed to give any adequate indication of his intention to turn to the right.

For his part, the plaintiff was also negligent. The manner in which the defendant's vehicle was being driven should have put the plaintiff on notice that it was possible that it would make a manoeuvre which would impede the plaintiff as he overtook the defendant's vehicle. He said himself he was wary of it. He should also have been aware of the possibility that the defendant was not aware of his presence. In all those circumstances, he should have indicated his presence to the plaintiff before he commenced to overtake, either by sounding the horn of the motor cycle or by raising and lowering his headlights.

It is necessary that I apportion liability between the parties. The defendant shall bear 75 per cent of the responsibility for the accident, and the plaintiff 25 per cent. That means that the defendant will have to pay the plaintiff 25 per cent of $111,000 which is $83,250.

There will be judgment for the plaintiff in the sum of $46,877.75; that is $83,250 less $36,372.27.

The defendant shall pay the plaintiff's costs.