THOMSON v HEALY - [2007] SASC 462

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THOMSON v HEALY
[2007] SASC 462
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
21 December 2007
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
Claim for damages for personal injury arising out of road accident - appellant's vehicle travelling behind respondent's vehicle - collision occurred when respondent's vehicle turned left into a driveway - liability determined as a preliminary issue - finding that respondent not negligent.
Held: appeal allowed. Order of trial judge dismissing appellant's claim set aside and judgment entered for appellant for 30 per cent of her damages to be assessed. Comments on appellate court's role on appeal by way of rehearing.
Fox v Percy (2003) 214 CLR 118; Pledge v Roads & Traffic Authority (2004) 78 ALJR 572; CSR Ltd v Della Maddalena (2006) 80 ALJR 458, applied.
Edwards v Brennan [2004] SASC 207, distinguished.
Mugford v Ames [2000] SASC 241; (2001) 31 MVR 406; Hooker v Grinham (1997) 26 MVR 233, discussed.

THOMSON v HEALY
[2007] SASC 462
Full Court: Duggan, Bleby and Layton JJ

DUGGAN J. The appellant commenced an action in the District Court claiming damages for personal injury arising out of a collision between a vehicle she was driving and a vehicle driven by the respondent.
On the application of the appellant and with the consent of the respondent, a master of the District Court ordered that liability be determined as a preliminary issue. At the trial of this issue in the District Court the learned judge found that the respondent was not negligent and the appellant’s claim was dismissed. The appellant now appeals against the dismissal.
The accident occurred late in the afternoon of 16 January 2002. The appellant was driving a Mitsubishi sedan in a northerly direction along Military Road between Glenelg and West Beach. As she drove along Military Road she became aware of a Land Cruiser travelling in front of her and in the same direction. The Land Cruiser was being driven by the respondent. There were no other cars between them.
The respondent then turned left into the driveway of the Adelaide Shores Village (“Adelaide Shores”) where she was staying. The driveway is situated on the western side of Military Road.
The collision between the two vehicles occurred as the respondent was executing this manoeuvre. It resulted in damage to the front driver’s side of the appellant’s vehicle and the left-hand side of the respondent’s vehicle.
There was a passenger sitting in the front passenger seat in each vehicle. The appellant’s passenger was Mr Whittpoth. Ms Curran was the respondent’s passenger. Each gave evidence as did the appellant and the respondent.
The learned trial judge described the features of the relevant section of Military Road in his reasons for decision:
It is agreed that Military Road is a straight and flat carriageway of two traffic lanes, constructed in a general north and south direction, bound on each side by concrete kerbing and divided centrally by a broken white line. On the western side of the road there is a grassed footpath measuring 3.2 metres. The carriageway is bitumen and uneven as a result of roadwork that has taken place over time. The carriageway is 6.4 metres wide for both northbound and southbound traffic.
On the western side of the roadway there is a concrete driveway leading into a holiday village and a stobie pole on the grassed footpath about 10 feet south of that driveway.
The respondent said she was travelling at a speed of 50 to 55 kilometres per hour, but slowed down when she was within about 50 or 70 metres of the driveway into Adelaide Shores. She said that at this point she activated the left indicator. She said she made “a gentle manoeuvre over to the left-hand side”. The respondent estimated that she was about a metre or a metre and a half away from the left-hand kerb by the time she reached the driveway. She said that at the time she commenced her manoeuvre towards the left kerb she looked in the central rear vision mirror and saw the appellant’s car behind her, but felt there was no danger. She said she thought the appellant’s car was about 50 metres behind her. She said that at some stage before she turned into the driveway she looked in the central rear vision mirror again. She did not see the other vehicle on this occasion. She did not know whether this was due to a “blind spot”. It was after she turned into the driveway that she heard the sound of the collision. Her passenger, Ms Curran, corroborated this account of the incident.
The appellant said that she was driving at around 55 to 60 kilometres per hour at the time she was following the respondent. The respondent’s Land Cruiser was about a step away from the white centre line and about four or five car lengths in front of the appellant. According to the appellant’s evidence, the respondent gave a late indication of her intention to turn left. She said the respondent’s indicator was turned on “at the last minute” when the Land Cruiser neared the driveway. The appellant said the Land Cruiser was near the white centre line at the time the indication was given. She said that, by then, it was too late to avoid a collision. She applied her brakes and tried to pull to the left, but to no avail. Mr Whittpoth, her passenger, also gave evidence that the respondent’s vehicle did not move towards the left until it reached the driveway. However, the trial judge pointed out that this witness had not been paying particular attention to what was occurring ahead of him on the road and his evidence was found to be unreliable.
The trial judge preferred the evidence of the respondent to that of the appellant. He declined to find that the respondent gave a late indication of her intention to turn into the driveway. He accepted her evidence that her vehicle was approximately 50 metres back from the driveway when she indicated. He said this was not negligent.
The judge also dealt with the respondent’s position on the road. He said:
There is a dispute as to the position of the defendant's vehicle on the carriageway prior to commencing the left-hand turn. The plaintiff's case is that the defendant’s vehicle was travelling on the right-hand side of the carriageway for northbound vehicles. The defendant said she was initially in the centre of that carriageway until she reached a position 50 to 70 metres before the roadway when she pulled to the left and indicated. Mrs Curran corroborated the defendant’s evidence on that topic. I accept the evidence of the defendant. In my opinion the defendant was not negligent by reason of the position of her vehicle on the roadway.
In the judge’s view the real cause of the collision was the appellant’s defective lookout. He also said that the appellant allowed her vehicle to get too close to the respondent’s vehicle. In addition, he had regard to the consideration that the appellant was closing on the respondent because she was travelling at a faster rate. He said the appellant should have slowed her vehicle and maintained a safe distance between it and the respondent’s vehicle. He concluded:
In my opinion the dominant cause of the collision was the fact that the plaintiff drove into the defendant’s vehicle from behind. In my opinion the plaintiff has not proved that there was anything which the defendant could reasonably have done to avoid the collision even if she had been aware of the position of the plaintiff’s vehicle.
This is a case in which the credit of the parties was in issue and it was highly relevant to the findings of fact by the trial judge. The trial judge formed an adverse view of the appellant’s evidence for reasons which he gave and instead accepted the respondent’s evidence. There are many references to credit findings throughout the judgment.
The High Court has clearly indicated the approach which should be followed by an appellate court when conducting a rehearing of this nature.[1] It has been held that a decision by a primary judge may be set aside where the appellate court considers that the judge has failed to use or palpably misused his or her advantage, or where there are incontrovertible facts which demonstrate the findings to be erroneous; or where the evidence which was accepted was glaringly improbable or contrary to compelling inferences. In such a case, making all due allowance for the advantages available to the trial judge, an appellant court must not shrink from giving effect to its own conclusions.
[1] Fox v Percy (2003) 214 CLR 118 at [66]; Pledge v Roads & Traffic Authority (2004) 78 ALJR 572 at [43] and more recently in CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [19] – [24].
In the present case the appellant’s counsel placed reliance on what may be characterised as incontrovertible facts, namely, the damage to its vehicle, thereby casting doubt on the respondent’s version of the accident as found by the trial judge.
The damage to the appellant’s car is depicted in photographs tendered as exhibits at the trial. The damage was mainly to the driver’s side door and the driver’s side front guard above the wheel.
There was no photograph of the damage to the Land Cruiser, but it appears from the repairer’s assessment of damage form and the invoice for the repairs that the main damage was to the doors on the near side of the vehicle. It is apparent, therefore, that the points of contact in the collision were the left or off-side of the Land Cruiser and the driver’s side of the appellant’s vehicle. It was suggested in argument that the contact between the vehicle was in the nature of a “sideswipe” and this appears to be a reasonable description of what occurred.
The point of impact could not be determined with any accuracy. The appellant said her vehicle came to rest on the corner of the driveway and “turning left into the driveway”. The respondent said she was turning into the driveway when her vehicle was hit.
There is a stobie pole on the Glenelg or southern side of the driveway. It is situated on the grass verge adjacent to the western kerb. It was noted on a court view of the scene that the stobie pole was about 10 feet south of the driveway into Adelaide Shores.
I have referred to the respondent’s evidence that she manoeuvred her vehicle over to the left-hand side of the road and that she was about a metre or a metre and a half away from the left-hand kerb by the time she reached the driveway.
If the respondent is correct in saying that the collision took place as she turned into the driveway and if, as is evident from the damage to the vehicles, the sides of the vehicles came into contact with each other, the respondent’s vehicle could not have been travelling as close to the kerb as she claimed immediately before she turned into the driveway; there would not have been room for the appellant’s vehicle to swerve to the left and collide with the respondent’s vehicle in the vicinity of the driveway. In the light of the objective evidence, including the damage to the vehicles and the location and dimensions of the driveway, it must be inferred that the respondent did not commence her left turn from a position near the kerb adjacent to the driveway.
The trial judge described the damage to each vehicle in his reasons for decision. Unfortunately, however, he did not deal with the argument put forward by the appellant at the trial that the damage was inconsistent with those aspects of the respondent’s version to which reference has been made.
In my view, the nature of the damage to the respective vehicles, in conjunction with other features of the location where the accident occurred, indicate the probability that the respondent commenced her turn not far from the driveway and did so from a position near the white line which separates the two carriageways. I therefore consider that the trial judge erred in finding that the respondent was not negligent by reason of the position of her vehicle on the road when undertaking the left-hand turn. However, this does not result in a requirement to accept the version of the accident given by the appellant in its entirety and, as a consequence, to overturn other relevant findings of fact made by the trial judge. The trial judge formed an unfavourable view of the appellant’s evidence and his assessment must be given appropriate weight.
After giving appropriate consideration to the whole of the evidence and the advantage enjoyed by the trial judge, I would not disturb the trial judge’s findings on the following aspects. The respondent indicated her intention to move to the left approximately 50 metres before entering the driveway; she had slowed down prior to the turn; and her turn was not sharp and sudden as was alleged by the appellant.
In addition, another relevant consideration is that the respondent admitted she saw the appellant’s vehicle travelling behind her on the first occasion she looked into the rear vision mirror, but did not see the vehicle when she looked in the mirror on the second occasion.
I agree with the trial judge’s conclusions that the appellant should have been aware of the slowing down of the respondent’s vehicle and of the indication given to turn left and should have appropriately slowed down and maintained a safe distance between her vehicle and the respondent’s vehicle.
In these circumstances there is a heavy duty on a following driver. In Mugford v Ames [2] Martin J (Prior and Williams JJ concurring) quoted the following passage from the judgment of The Saskatchewan Court of Appeal in Kosinski v Snaith[3] which conveniently summarises that duty:
There is a clear and well-defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper look-out; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that, for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.
[2] [2000] SASC 241; (2001) 31 MVR 406.
[3] (1983) 1 DLR (4^th) 170 at 174.
In the circumstances of the present case, I am of the view that the clear failure of the appellant to observe this standard of care must result in her bearing the major share of responsibility for the collision. However, I have reached the conclusion that there was also negligence on the part of the respondent. As I have said, the damage to the vehicles supports the conclusion that the respondent did not move to the left of the road and travel within a metre or so of the kerb for some distance before turning left. On her own version, she was not aware of the position of the appellant’s car at that time, although she had seen it in her rear vision mirror a short time before.
In Hooker v Grinham[4] Doyle CJ (Lander and Bleby JJ concurring) said:
Apportioning liability involves a comparison of two things in particular. First, culpability, which is the degree of departure from the standard of care of the reasonable driver. Secondly, the relative importance of the acts of the parties in causing the damage but it is “... the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination”, see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311.
[4] (1997) 26 MVR 233.
I have also given consideration to the decision of Perry J in Edwards v Brennan[5] in which Perry J apportioned 70 per cent against the driver of a car which made a sudden sharp turn to the left into the driveway of his house from a position near the centre of the road and thereby cut across the path of a motorcycle which was following. The rider of the motorcycle had slowed down behind the car prior to the car suddenly turning left in front of him. The circumstances in Edwards’ case therefore differ from the circumstances in this case.
[5] [2004] SASC 207.
After considering the relevant importance of the acts of each party in causing this collision, I have reached the view that the appellant was 70 per cent and the respondent 30 per cent responsible.
I would allow the appeal, set aside the order of dismissal of the appellant’s claim and enter judgment for the appellant for 30 per cent of her damages to be assessed.
BLEBY J. I agree with the orders proposed by Duggan J and with his reasons.
LAYTON J. I would allow the appeal and I agree with the reasons of Duggan J.