Pollard-Lonergan v Goodman No. DCCIV-98-929

[2000] SADC 110

POLLARD-LONERGAN v GOODMAN
[2000] SADC 110

Judge Robertson
Civil

1. On 18 September 1994 the Plaintiff was injured in a motor accident.  The accident occurred at the intersection of Main South Road, Sherriffs Road and Pimpala Road, Reynella (“the intersection”).  The quantum of the Plaintiff’s claim has been agreed at $231,875.35.  The purpose of the hearing was to determine the question of liability.

2. The accident occurred at a traffic island on the south-east corner of Main South Road (“South Road”) at the junction of Pimpala Road.  The raised traffic island was bordered by a turn left road which came off South Road to allow south bound traffic on South Road access to Pimpala Road for traffic on Pimpala Road and South Road.  The island was roughly in the shape of a triangle.  The intersection was controlled by traffic lights.  There was a pole with a set of traffic lights situated close to the edge of the traffic island.  These traffic lights controlled traffic on South Road travelling in a southerly direction.  For ease of expression I will refer to South Road as travelling north/south, with Pimpala Road on its eastern side and Sherriffs Road on its western side.  In doing so I acknowledge that the roads I have referred are not positioned precisely in a north/south or an east/west direction.  There was a push button attached to the traffic light pole which when operated activated a pedestrian light allowing pedestrians to cross South Road from the traffic island to the western side of South Road where it abuts Sherriffs Road. 

3. At the time of the accident the Defendant was driving a motor vehicle in a southerly direction along South Road.  His vehicle was towing a laden trailer.  The Defendant’s motor vehicle was in the lane immediately adjacent to the eastern edge of South Road.  It is alleged by the Plaintiff that whilst he was stationary on his bicycle on the traffic island, in the vicinity of the traffic light pole, the Defendant’s trailer clipped part of the bike causing him to be catapulted into the air.  He landed in Pimpala Road and suffered severe injuries.  Whilst that is the Plaintiff’s case he is unable to say what caused him to be catapulted into the air as he did not see any contact between his bike and the trailer.  It is the Defendant’s case that the Plaintiff traversed the traffic island on his bike and being unable to stop collided with the trailer as it was passing the traffic island.  However, like the Plaintiff, the Defendant did not observe or feel any contact between the trailer and the Plaintiff’s bike.  To add to the difficulty, whilst there was a number of witnesses who observed the Plaintiff and the Defendant’s motor vehicle and trailer immediately before the collision, no witness actually made any crucial observation which could assist in determining the cause of the Plaintiff being catapulted into the air.

4. The Plaintiff was seventeen years of age at the time of the accident.  The accident occurred on a Sunday afternoon.  About the middle of the afternoon the Plaintiff and his friend, Adam Tait, who had just turned twenty years of age, were riding their bikes in a westerly direction along Pimpala Road.  They were heading for the Ampol Service Station which was situated on the western side of South Road at the corner of Sherriffs Road.  The Plaintiff’s bike was described as a BMX style bike.  It had twenty inch wheels and had foot brakes.  The brakes were operated by the rider’s foot applying downward pressure to one of the pedals of the bike.  Adam Tait had a similar style of bike except that his bike had hand operated brakes.

5. The Plaintiff and Adam Tait set off from the Plaintiff’s residence and as they were travelling along Pimpala Road the Plaintiff was riding a few metres in front of Adam Tait.  The Plaintiff said that as he approached the intersection, he traversed the turn left road which gave access to Pimpala Road from South Road on his bike and rode onto the raised traffic island.  He said that his speed, at that point, was about walking pace.  At this time the Plaintiff said, the traffic travelling in a southerly direction along South Road had just commenced to move into the intersection having been stationary at the intersection waiting for the traffic lights to change.  The Plaintiff said that he rode slowly across the traffic island towards the traffic light pole. It was his intention to activate the pedestrian lights by pressing the button attached to the pole.  He said that on reaching a position near the edge of the traffic island where it abuts South Road, he brought his bike to a halt by operating the foot brake with his right foot.  The Plaintiff said that about the same time he placed his left foot on the traffic island.  His bike was approximately forty five degrees to the edge of the island.  The Plaintiff said that immediately upon placing his foot on the ground he was catapulted into the air.  He did not see what caused him to be catapulted into the air.  The next thing he could recall is lying in Pimpala Road suffering great pain.

6. At the time that the Plaintiff traversed the turn left road and onto the traffic island, Adam Tait said he was riding his BMX bike about four metres behind him.  Adam Tait said that when the Plaintiff crossed the turn left road the Plaintiff was travelling at about walking pace.  He observed the Plaintiff ride onto the traffic island.  About that time Mr Tait had reached the point where he needed to cross the turn left road.  He said there was traffic travelling through the intersection in a southerly direction.  Adam Tait said that before he moved off the footpath onto the turn left road, he looked to his right. On doing so he observed a motor car towing a trailer, north of his position, travelling in the inside or most eastern lane of South Road.  He formed the opinion, due to the speed of the vehicle, that it was not proposing to use the turn left road to gain access to Pimpala Road so he proceeded to cross the turn left road.  At this point he continued to have the Plaintiff under observation.  He said that he saw the Plaintiff move across the traffic island towards the edge of the island which abuts South Road.  He also observed the Plaintiff bring his bike to a halt and remove his left foot from the pedal and direct it towards the ground. Adam Tait said that at the time the Plaintiff’s bike became stationary, both wheels of the bike were on the traffic island.  At this point Adam Tait said that looked down in order to negotiate the small rise of the traffic island.  On looking up he observed the Plaintiff in the air.  He saw the Plaintiff spin approximately three and a half times in the air before he landed in front of a motor vehicle stationary in Pimpala Road. He did not see what caused the Plaintiff to be catapulted into the air.

7. The Defendant, who was fifty one years of age at the date of the accident, said that he was driving a motor vehicle which was towing a trailer in a southerly direction along South Road.  He said the trailer was laden with engine parts and he estimated the load would have weighed about a tonne.  He said that as he was approaching the intersection, he was travelling in the middle lane, being the lane immediately adjacent to the eastern most lane.  The Defendant said ahead of him the traffic was stationary at the traffic lights for south bound traffic in the lane in which he was travelling.  He said that the lights for south bound traffic then turned green and the vehicles in the middle lane commenced to move off.  The Defendant said that he moved to the inside or the lane nearest to the eastern side of South Road to keep up the momentum of the trailer and his vehicle.  He said he needed to keep the momentum up for the purpose of timing the lights.  He said it was his intention to move back into the lane he was originally travelling in once he passed through the intersection and the traffic in that lane had cleared.  The Defendant said that he was a little in excess of thirty metres from the intersection when he moved to the inside lane.  He said that when he moved into the inside lane he reduced his speed from about fifty five kilometres per hour to somewhere between thirty and forty kilometres per hour.

8. The Defendant said that he had observed two boys on BMX type bikes when he was travelling towards the intersection.  He did not specify the distance from the intersection when he first observed the two bike riders.  The best that can be said by reference to a point he indicated on a photograph admitted into evidence is that he was some distance from the intersection.  It is impossible to estimate that distance.  The Defendant said he had the two bike riders under observation for a few moments as he approached the intersection.  He said he saw the first boy ride his bike onto the traffic island and stop near a stobie pole which was in the vicinity of the traffic light pole on the island.  He said that the boy’s bike became stationary with its front wheel about eighteen inches from the edge of the traffic island where it abuts the inside lane of South Road.  The Defendant said that at the time when he first observed the two bike riders, the second rider had just moved onto the traffic island.  He said that as the second rider appeared to be travelling quite fast towards the edge of the traffic island which abuts South Road he manoeuvred his vehicle slightly to the west away from the traffic island.  The Defendant said that after he passed through the intersection he looked in his rear vision mirror and saw a person on the roadway.  He said that he had not heard anything or felt anything as he had passed the traffic island.  He then pulled over and went to the aid of the Plaintiff.  The Defendant was an ambulance officer so he was able to provide some assistance to the Plaintiff.  He said he assumed that the injured rider was the second rider who he observed riding towards the edge of the traffic island as he approached it.

9. There were two other witnesses who observed the two bike riders on the traffic island, immediately before the accident.  Ms Alison Hughes, was in her motor vehicle stationary at the lights in Sherriffs Road facing in an easterly direction.  She first observed the two bike riders on Pimpala Road.  She said that she saw the first boy ride onto the traffic island and stop in the vicinity of the traffic lights.  Ms Hughes said the second rider followed onto the island and at that point her view was obscured.  The next thing she observed was a person being thrown into the air and landing in Pimpala Road.  She said she assumed that the second rider had ridden into a passing car.  Ms Hughes said she did not observe that the vehicle she observed was towing a trailer at the time but made that observation after the accident.

10. Mr Clifford Manning was in his motor car which was stationary in South Road, facing in a southerly direction, awaiting the change of the traffic lights to allow him to turn right into Sherriffs Road.  There are three lanes at the intersection which accommodate traffic travelling in a southerly direction on South Road.  There are a further two lanes adjacent to and to the west of those lanes which accommodate traffic turning right into Sherriffs Road.  Mr Manning was in the turn right lane which abutted the most eastern of the lanes for traffic continuing along South Road.  He said that there was traffic moving through the intersection heading south on South Road.  Mr Manning said that his attention was attracted to two boys on bikes who were on the traffic island.  He said he observed a car and trailer travelling in the lane immediately adjacent to the traffic island at about forty to forty five kilometres per hour.  He said that as the car and trailer passed the traffic island he saw a boy catapult into the air.  He said he did not observe the impact because his view was obscured.

11. At this point, it is appropriate to provide my observations regarding the various witnesses.  The Plaintiff impressed me as a witness upon whose evidence I could generally rely.  I felt that he tried to give his evidence honestly.  He appeared to have a reasonably good memory of the relevant events.  I detected no element of reconstruction in his evidence.  I thought Mr Tait was a most impressive and convincing witness.  He had a good memory for detail.  In my view he was a truthful and generally reliable witness.  I found the Defendant to be an unimpressive witness.  He was very defensive and mildly aggressive at times.  I thought that there were occasions when he was not relying upon an independent recollection but reconstructing.  My overall impression was that he was determined to exonerate himself from any blame.  His evidence regarding a conversation that took place between Adam Tait and himself at the scene of the accident was, in my view, illustrative of that attitude.  I regret to say that I did not believe his account of that conversation.  Finally, with respect to both Ms Hughes and Mr Manning, I felt that they were both honest witnesses.  I felt that I could generally rely on their evidence.

12. I should also say something about the Defendant’s trailer.  He said it was manufactured by using the tray section of a Dodge utility and attaching a chassis and tow bar.  He said that the width of the trailer was slightly wider than the width of the motor vehicle he was driving.  The trailer had a mudguard on either side of it.  Each mudguard was attached to the body of the trailer.  The defendant also said that each mudguard extended out beyond the outside edge of each wheel covered by the mudguard.  He further said that the leading edge of each side of the trailer extended beyond each wheel of the trailer.  The Defendant said when he inspected the trailer after the accident he observed a scratch on the leading edge of the trailer and another on the leading edge of the mudguard.  He did not say whether he had observed those scratches before that inspection or not.

13. Before I come to my findings of fact, there is one further piece of evidence to which I should refer.  Photographs of the bike, which the Plaintiff was riding on the day of the accident, were tendered and became part of the evidence.  I accept the Plaintiff’s evidence that the photographs depict the bike as it appeared immediately after the accident except for the broken chain which appears to have occurred later.  The photographs show the handle bar of the bike in a twisted position.  The handle bar grip on the right hand side of the handle bar is missing.  The seat of the bike is twisted to the left.  There does not appear to be any other damage to the bike.  In particular, there appears to be no apparent damage to the front wheel of the bike.  The damage to the bike, which is depicted in the photographs, is consistent with the observations of the bike made by Adam Tait immediately after the accident.  He said that after the accident he observed that the seat and handle bars of the bike were twisted and a handle bar grip was missing.

14. I now turn to deal with my essential findings of fact.  I find that the Plaintiff’s injuries were caused by the Defendant’s trailer coming into contact with the right side of the handle bar of the Plaintiff’s bike.  I find that the Plaintiff was the first rider who came onto the traffic island.  At the time that contact was made, I find that the Plaintiff was stationary on the traffic island with his bike at approximately forty five degrees to the edge of the traffic island which abuts the most eastern lane of the eastern carriageway of South Road.  No one, including the Plaintiff observed contact between the Plaintiff’s bike and either the motor vehicle or the trailer.  However, the evidence of the damage to the Plaintiff’s bike, together with the evidence that the Plaintiff’s trailer was wider than the vehicle which was towing it leads me to a conclusion that it was the trailer which made contact with the Plaintiff’s handle bar.

15. In my view, the Plaintiff was closer to the edge of the traffic island than he thought.  The consequence of this together with his positioning the bike at an angle of forty five degrees supports the inference that a small portion of the right side of the handle bar protruded over the edge of the traffic and thus encroached into the carriageway.  I reach the conclusion that only a small portion of the handle bar was over the edge because I accept the evidence of the Plaintiff and Mr Tait that the front wheel of the bike was entirely on the traffic island.  The Defendant also stated that the Plaintiff’s wheels were on the traffic island.  For the trailer to have struck the handle bar the wheels of the trailer must have been tracking very close to the edge of the traffic island and I so find.  In making this finding I reject the Defendant’s evidence that when he observed the second rider riding towards the edge of the traffic island that he swerved slightly to the right.  I also reject his evidence that as he passed the traffic island his vehicle was about eighteen inches from the edge of the traffic island.

16. It was not a matter of dispute between the parties that the question for my consideration was the apportionment of liability.  Neither party suggested that there should not be an apportionment of liability.  Section 27A(3) of the Wrongs Act 1936 (as amended) provides:-

    (3)    Where any person suffers damage as a result partly of his own fault and partly of the fault of another person ... the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage ...”

17. Over the years the Courts have made many pronouncements on how an issue of apportionment of liability is to be approached.  In the decision of Podreberseck v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, the High Court said at 494:-

    “The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected comparative examination.”

18. In the context of a road accident between a  motor vehicle and a pedestrian useful assistance is gained from the comments of King C J in Evers v Bennett (1982) 31 SASR 228 at 229:-

    “In apportioning liability, the learned trial Judge was required to compare the relative degrees of the departure by the appellant and the respondent from the respective standards of care expected of them by the law.  The standard of care in the case of the appellant was that which a reasonable person would observe in driving a car, that is to say in executing an operation which required skill, alertness and concentration and one which has the capacity, if carelessly executed, to cause great harm to others.  The standard of care in the case of the respondent was the care for his own safety to be expected of a reasonable person engaged in an ordinary activity requiring no special skill and only ordinary concentration, and exposing that person to no danger beyond the commonplace danger involved in being a pedestrian on the public road.”

19. In my view, by far the greatest responsibility for the injuries suffered by the Plaintiff lies at the feet of the Defendant.  He was driving a motor vehicle and towing a trailer which he was aware was wider than the motor vehicle.  He observed the Plaintiff in a stationary position on his bike in a position proximate to the edge of the traffic island which abutted the lane in which he was driving.  His vehicle and the trailer were tracking close to the edge of the traffic island.  He was not compelled to drive that close.  Whilst there may have been other vehicles travelling in the adjoining lane, there was room for him to drive his motor vehicle and the trailer further away from the edge of the traffic island.  The width of the lane as indicated in the plan tendered in evidence compared with the width of the trailer as shown in a drawing of the trailer indicates that there was room in the lane to enable the Defendant to drive at a further distance from the edge of the traffic island.  The Defendant was driving a vehicle and towing a trailer which could cause great harm to others if he failed to drive carefully.  In my opinion, the Defendant in driving his motor vehicle so close to the edge of the traffic island, knowing that his trailer was wider than the motor vehicle whilst observing the position of the Plaintiff on the traffic island was a serious departure from the high standard of care demanded of a person driving a motor vehicle. 

1. As far as the Plaintiff is concerned, his departure from the standard of care required for his own safety was a far less serious departure from the appropriate standard than that of the Defendant.  He needed to position himself so that he could activate the pedestrian lights, in order for him to cross South Road.  It would seem that in positioning his bike at an angle to the edge of the traffic island that this caused the handle bar to encroach slightly into the carriageway.  In so positioning his bike, the Plaintiff overlooked the possibility that this could cause part of the handle bar to protrude over the edge of the traffic island.

2. Before determining the appropriate apportionment of liability I should refer to the decision of Johnson v Hann (1980) 23 SASR 598. This decision was drawn to my attention by Mr Possingham, Counsel for the Plaintiff, after the hearing had concluded and I had reserved my decision. The facts are a little unusual. The plaintiff and two fellow workmen were working on road maintenance at the time he was injured. They were working close to the edge of the carriageway. A motor vehicle driven by the defendant struck the head of one of the workmen as he drove by and this propelled that workman onto the next workman who was forced onto the plaintiff injuring him. Chief Justice King held that sole responsibility for the accident lay with the driver of the motor vehicle. The decision is distinguishable on the facts in the sense that in this case the circumstances here indicate that both Defendant and the Plaintiff must bear responsibility for the Plaintiff’s injuries. However, in my opinion the decision does highlight the duty of a motorist when he observes a pedestrian close to the edge of a road. As I said earlier, the Defendant observed the Plaintiff stationary, close to the edge of the traffic island. On my findings he was driving very close to the edge of the traffic island. On observing the Plaintiff he failed to alter the position of his vehicle on the roadway. This was a serious departure from the high standard of care required.

3. In my opinion, for all the reasons I have expressed, the responsibility for the Plaintiff’s injuries should be apportioned eighty five percent to the Defendant and fifteen percent to the Plaintiff. 

4. I will hear the parties regarding the orders to be made.