Sexton v Palmer - [2005] SADC 20

District Court of South Australia
(Civil)
SEXTON v PALMER
Judgment of His Honour Judge Bright (ex tempore)
8 March 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Collision between car and push cycle. Liability apportioned on a 50/50 basis. Damages agreed in the sum of $96,109.55. Judgment for the plaintiff in the sum of $48,054.78 which includes interest.

SEXTON v PALMER
[2005] SADC 20

This case concerns an accident which occurred on Friday, 15 December 2000. It occurred on Portrush Road at St Georges. In the vicinity of the accident, Portrush Road runs in a north-south direction, climbing gently to the south. It has two lanes for through traffic in each direction. The accident occurred close to the junction with Queen Street which goes to the west of Portrush Road. At that point, there is a turning lane for vehicles which want to make a right-hand turn into Queen Street.
The plaintiff was then 16, she was a moderately experienced cyclist, in training for a triathlon and was riding a road racing bicycle. It was a bicycle which she had borrowed, but on which she had covered many kilometres. The defendant was the driver of a motor vehicle.
The plaintiff had come down Greenhill Road and turned to the south in Portrush Road. She had travelled approximately a kilometre along Portrush Road, to the point of the accident. She says that roadworks occurred from time to time on her left, making it difficult for her to ride in the position that she wanted to ride, close to the left of the road. Eventually she decided to turn to the right down Queen Street, and to get off Portrush Road, as it was a little too busy to be comfortable.
She says that, as she approached Queen Street, she crossed over a pedestrian crossing which appears from the exhibits, to be about 30 metres or so to the north of the point of impact. She looked behind her and saw that a large utility, perhaps a Landcruiser was approaching from the rear. It slowed down, she made eye contact with the driver who made some gesture to indicate that she could go across. She says that she then went across from the left edge of the left lane to the right edge of the left lane. She says that she had her right hand out, indicating that she was going to make a right-hand turn. Her left hand was on the top of the handlebars of the bicycle, covering the left hand brake.
She says that a couple of vehicles in the right lane passed her. Then she checked to the rear and concluded that she had sufficient time to cross the right lane and to enter the turning lane, and began to do so. She says that she saw a blue vehicle some distance back, she cannot estimate its speed but does not suggest it was speeding. She says that she had been travelling at around 30 kilometres per hour before she began to change lanes, but by the time she was moving across to the right side of the left lane and then making her next move, she was probably doing something of the order of 15 kilometres per hour. She says that she completed the crossing of the right lane and was just inside the turning lane, when there was an impact to the rear of her bicycle and she was thrown to the road.
The defendant says that she had come down Sturdee Street, which joins Portrush Road, approximately 300 metres to the north of the Queen Street junction. She could not recall whether she moved into the right-hand lane for southbound traffic as soon as she entered Portrush Road, or whether she spent some time in the left-hand lane. The first thing she recalls is suddenly seeing the plaintiff’s bicycle crossing quickly in front of her; it was then in about the middle of the right-hand lane. She slammed on her brakes but failed to bring her car to a halt in time to avoid hitting the rear wheel of the bicycle.
She says that she pulled up virtually at once, and recalls that her car offered protection to the plaintiff from southbound traffic, as the plaintiff lay inside the turning lane. She says that the bicycle was close by and marginally to the south. It is the plaintiff’s recollection that the defendant’s car passed her and pulled up a little further to the south. Not a lot turns on that. It seems reasonable to conclude that the defendant’s vehicle was moving more quickly than the plaintiff’s bicycle, and that it knocked the bicycle out from underneath the plaintiff, depositing her on the road, more or less where she fell.
The defendant is perfectly frank that she did not see the plaintiff until a time when the plaintiff was crossing in front of her, she says at an angle of about 30 degrees. Clearly she had only a brief moment to observe what was happening. It appears she applied the brakes quickly and no criticism is made of what she did from the time that she realised that there was a situation of danger. She is not clear whether there were specific vehicles alongside her in the left-hand lane, preventing her from swerving to the left. It is certainly the case that there were vehicles generally in that lane, and that such a manoeuvre would have been hazardous.
It is the plaintiff’s belief that she had crossed entirely into the turning lane and was clear of the right lane for through traffic at the moment of impact. The defendant says that that is not so and that the impact occurred towards the right edge of the right lane. I don’t think that a great deal turns on that, it was around the division between the two lanes.
A council of perfection, when looking at the plaintiff’s actions, would be that there was a pedestrian crossing with traffic lights, only about 30 metres back. If the traffic was heavy, that could have been utilised to get across Portrush Road with the bicycle. I do not suggest she was negligent not to do that. In fact, the plaintiff says that she received an invitation to cross to the right edge of the left lane which she accepted. I do not think she was negligent in doing so. It was perfectly safe for her to remain in the left lane, but towards the right edge of it.
It is the next move which concerns me. However long it was that she had been in the position close to the edge of the right-hand lane, she says that she looked back, saw a vehicle which she believed was the vehicle which ultimately collided with her bicycle, and judged that she had time to cross the lane ahead of it. Given that that vehicle came into collision with her bicycle after apparently fairly fierce braking, her judgment of that was wrong. She should not have changed lanes at a time to cause a vehicle in that lane to take evasive action. Had the defendant not braked, the impact would have been sooner and harder. To that extent, I think that she is guilty of contributory negligence.
From the point of view of the defendant, I accept the plaintiff’s evidence that she did not make one dash from the extreme left-hand side of Portrush Road, straight across to the extreme right-hand side of the through lane. It seems to me far more likely that the plaintiff is correct in saying that she straightened up near the division between the two lanes, and then that it was on a second move that she was making, that the impact occurred. In those circumstances, it seems to me that she should have been visible to the defendant for some time before she was actually seen. She was travelling in a more or less straight line with her arm out, and clear of any obstruction caused by the large utility which had let her pass to the centre. She should have been seen sooner by the defendant. The defendant should have seen that she had her hand out, indicating an intention to turn right and should have appreciated that there was a junction only a very short distance ahead. In all of those circumstances, had the defendant kept a proper lookout, she would have seen that the plaintiff was likely to make her move across the right lane very shortly. She should have seen that move begin, which would have alerted her earlier. Had she braked only a moment earlier, there may not have been an impact.
It seems to me that each of the parties is guilty of negligence. As I have said, the defendant was negligent in keeping a faulty lookout which deprived her of the opportunity to react sooner. The plaintiff is negligent in seriously misjudging the time and space available to her, to cross the right lane into the turning lane. I mm unable to distinguish between the negligence of each of the parties, and I apportion liability on a 50/50 basis.
The plaintiff will therefore have judgment for 50 per cent of her damages. Damages have been agreed in the sum of $96,109.55. If my arithmetic is correct, half of that figure is $48,054.78. I note that the figure for judgment includes interest.
I should also note that I paid great attention to the evidence of Mrs Shirian, but I was not much helped by it in the end. I don’t think that she really knows where, in terms of the lanes of Portrush Road the accident occurred. She had the plaintiff hitting the road or lying on the road in the middle of the left lane, which is not consistent with anybody else’s evidence. She did assert that the defendant’s car remained within the confines of the right lane, rather than straying into the turning lane, but I am not of the view that her evidence was clear enough for me to be able to rely on it.
Mr Baker, your filed offer has been beaten. The fact that you negotiated at higher figures earlier is to my mind largely beside the point. In the end, the only offer that was available to the plaintiff was the $35,000 offer. She’s beaten it and I will order that she have her costs on a party party basis, to be taxed if not agreed within the next 21 days. That’s simply mechanical so that you can get before a taxing master if they have to be taxed.