Thomson v Healy - [2007] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
THOMSON v HEALY
[2007] SADC 37
Judgment of His Honour Judge Clayton
17 April 2007
NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
Claim for declaratory judgment determining liabliity for motor vehicle accident - plaintiff claimed that defendant executed a sudden left-hand turn from the right-hand side of a single lane for northbound traffic.
HELD: Defendant not negligent - discussion of duty of driver turning to the left whilst being overtaken.
Edwards v Brennan [2004] SASC 207, distinguished.
Stoeckel v Harpas (1971) 1 SASR 172; Mugford v Ames (2000) 31 MVR 406; [2000] SASC 241; Braund v Henning (1988) 7 MVR 97, considered.

THOMSON v HEALY
[2007] SADC 37

The plaintiff has claimed damages for personal injuries which she allegedly sustained in a motor vehicle accident on 16 January 2002 on Military Road at West Beach. She seeks a declaratory judgment finally determining the question of liability.
The plaintiff's case relies upon the evidence of herself and the evidence of Mr Whittpoth, a passenger in her vehicle. The defendant relies upon her own evidence and the evidence of Mrs Curran, a passenger in her vehicle. In addition written statements of Mr Whittpoth and Mrs Curran were admitted into evidence.
Late in the afternoon of 16 January 2002, the plaintiff was driving a red Mitsubishi sedan along Military Road in a northerly direction from Glenelg towards West Beach. The roadway is depicted in six photographs and described in the report of loss adjusters. The court also conducted a view of the scene.
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 plaintiff and the defendant had both travelled from Glenelg. The collision occurred as the defendant's 4-wheel drive Land Cruiser was turning left from Military Road into the driveway to the holiday village where she was staying.
The damage to the plaintiff's vehicle comprised damage to the driver's door and front on the right-hand side. The defendant's vehicle was damaged on the left-hand side in the area of the rear passenger door.
The plaintiff's evidence was that she was following a Land Cruiser at a speed of around 55 to 60 kilometres per hour. The Land Cruiser was about a step away from the white centre line and about four to five car lengths in front of her. It was to the right of her line of travel. She said that as the vehicle proceeded towards the point of impact there was no change in the speed of her vehicle and she noticed a late indication by the Land Cruiser - "a left indication turning left into a driveway at the last-minute". When she first noticed the indication the Land Cruiser was "basically at the driveway, just before the driveway of the villas". She said she slammed on her brakes very quickly and basically tried to pull to the left-hand side to avoid collision with the Land Cruiser. The only movement of the Land Cruiser that she noticed was "just turning, abruptly turning left into the driveway". She said the point of impact was "probably around adjacent to the stobie pole" and her vehicle came to rest on the corner of the driveway turning left into the driveway. Her vehicle was damaged on the right-hand side front light and driver's door. She said she was not attempting to overtake, but was just driving north on the left-hand side of the road.
The first issue is to determine whether the defendant was negligent. If the defendant was not negligent the question of contributory negligence will not arise.
The particulars of negligence assert that the defendant:
·failed to maintain a sufficiently consistent look out to ensure that the plaintiff's vehicle was sufficiently far behind her to enable her to execute the turn or movement to the left safely;
·failed to give any or a sufficiently early indication of her intention to make the left turn
·executed the left turn in a sharp and sudden manner which gave approaching vehicles no opportunity to cope with or avoid the danger which was posed;
·executed the turn from a position close to the centre of the roadway;
·drove without due care or attention;
·failed to have her vehicle under any or any proper control;
·manoeuvred her vehicle across the path of the plaintiff's vehicle at a time and in the manner which was unsafe so as to give the plaintiff no opportunity to avoid the collision.
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.
There is also a dispute as to the duration of the turning indication given by the defendant and there is a dispute as to a conversation which took place between the parties following the accident.
In her evidence the plaintiff said that the late or last minute indication indicated to her that the defendant was looking for an address and that she did not actually know where she was going. The plaintiff’s assumption was proved by later evidence to be incorrect. The defendant said, and I accept, that she was very familiar with the entrance to the holiday park having stayed there for her annual holiday for many years. It is therefore unlikely that she gave a late indication to turn by reason of the fact that she was uncertain as to her destination. If a late indication was made it would have been for other reasons.
The plaintiff's evidence as to the turning indication varied. In her evidence in chief she described the indication as late and last minute. In cross-examination she said "maybe it could have been as much as 5, 6, 8 seconds before the stobie pole".
If the evidence of an indication of eight seconds before the stobie poll is correct the defendant could not be criticised for giving a late indication. While I do not treat that evidence of the plaintiff by itself as a basis for a finding that the defendant had indicated for eight seconds prior to the stobie pole, it is evidence of the plaintiff’s unreliability on a critical fact. She carries the onus of proving that the defendant was negligent. On the basis of the plaintiff's evidence I could not find that the defendant gave a late indication of her intention to turn.
I accept the evidence of the defendant that she applied her indicator when her vehicle was approximately 50 metres back from the stobie pole. I find that her indication was not late and that she was not negligent as a consequence of the manner in which she indicated her intention to turn to the left.
I find that the plaintiff allowed her vehicle to get far too close to the defendant's vehicle, whether a timely turning indication had been given or not. One can only guess as to the reason for that. Whether it was because of inattention or a defective lookout on the part of the plaintiff, because the plaintiff was travelling too quickly in the circumstances or for some other reason, I cannot say. The plaintiff said in evidence "I don't remember catching up to the Land Cruiser…. I don't remember driving and then catching up to the Land Cruiser. So I'm not sure where that's going". She also said "I had no indication that she (defendant) was going slower than anybody else or intending to turn or do anything except to drive along that road". The facts that the defendant’s vehicle was slowing and the plaintiff's vehicle was closing on the defendant's vehicle are objective facts of which the plaintiff would have been aware if she had maintained a proper lookout. She should have slowed and maintained a safe distance between her vehicle and the defendant’s vehicle.
In cross-examination the plaintiff refused to acknowledge the obvious fact that if her vehicle was closing on the defendant's vehicle her vehicle must have been travelling faster than the defendant's vehicle. Her refusal to acknowledge a logical and obvious fact illustrates the unreliability of the plaintiff's evidence.
If, contrary to my finding, the defendant did give a late turning indication, the plaintiff must have already allowed her vehicle to get far too close to the defendant's vehicle. Drivers have an obligation to maintain a safe distance between their vehicle and vehicles in front and overtaking drivers have an obligation to carry out the overtaking manoeuvre safely.
Counsel for the plaintiff referred me to the decision of Perry J. in Edwards v Brennan[1]. In that case Perry J. said:
It is true that in an ordinary situation where vehicles travelling at about the same speed, one behind the other, the following vehicle should normally keep a reasonable distance between the vehicle ahead and be alert to anticipate any situation arising in which the vehicle ahead may be obliged to stop, including any situation in which the vehicle ahead might stop suddenly.
[1] [2004] SASC 207
Perry J. also referred to the reasons of Wells J. in Stoeckel v Harpas[2] which discuss the obligation to drive defensively. That obligation applied to both the plaintiff and defendant.
[2] (1971) 1 SASR 172
In Edwards v Brennan Perry J. apportioned liability 70% against the driver of a car which made a sudden turn to the left into the driveway of the driver's house from a position near the centre of the road and in so doing cut across the path of a motorcycle. His Honour found that it was the manoeuvre of the driver of the car that represented the greater or more risky breach of road duty on that occasion, because it was he who was moving off a straight line, or assumed straight line, of the direction of travel. The finding of negligence and apportionment must be determined on the particular facts of each case and Edwards v Brennan can be distinguished from the present case on the facts. The general principle referred to by Perry J, in the passage which I have set out above, is one of general application.
The Full Court of the Supreme Court also discussed the obligation of a driver following a vehicle in Mugford v Ames[3]. Martin J with whom Prior and Williams JJ agreed said that the following driver must keep a reasonable distance behind the vehicle in front, keep an alert and proper lookout, anticipate that the vehicle in front may stop and proceed with that care which will enable a driver to avoid colliding with the vehicle in front.
[3] (2000) 31 MVR 406; [2000] SASC 241
In Braund v Henning[4] the High Court of Australia said that the driver of a vehicle which collides with a vehicle ahead of it is usually held primarily liable for the consequences of the collision, although the circumstances in that particular case dictated a departure from the norm.
[4] (1988) 7 MVR 97
In the present case the initial inquiry must be whether the defendant’s driving departed from what is required in a way that requires a departure from the norm. Unless the defendant can be shown to have been negligent in some way, the driving of the plaintiff is inconsequential.
The story which the plaintiff told was improbable. Generally her description of the collision was vague, her estimates of times and distances varied and she never really explained how her vehicle came to be in the position that it was in at the time the collision occurred.
If the plaintiff had been keeping a proper lookout it should have been apparent to her that her car was getting closer to the Land Cruiser. She should have either slowed down or prepared to pass to the right-hand side. There was no reason for her vehicle to be so close and on the left of the Land Cruiser.
Even if, contrary to my findings, the defendant's vehicle was towards the centre of the road and the turning indication was late, those matters do not explain how the plaintiff's vehicle came to be where it was at the time of the collision. The plaintiff denied that she intended to overtake to the left of the Land Cruiser.
The plaintiff did not see a brake light on the defendant's vehicle. Mr Whittpoth initially said that he did not see a brake light but later said that the brake light may have come on at the same time as the indication to turn was given. The defendant said that she did not apply the brakes, but her vehicle slowed when she removed her foot from the accelerator. Counsel for the plaintiff submitted that I should disregard the evidence of Mr Whittpoth on this topic.
The defendant gave evidence that she had been travelling along Military Road at a speed of 50 to 55 kilometres per hour until she reached a position about 50 to 70 metres south of the driveway into the holiday village. Later in her evidence she refined that to a distance of 50 metres back from the stobie pole. She said she pulled to the left, indicated and then just turned into the driveway. When asked whether the manoeuvre was sharp slow or gentle she said "because I know where I'm going, it's a gentle manoeuvre over to the left-hand side".
The defendant said that when she first applied the indicator her speed was probably about 40 to 45 kilometres per hour. She said that she had looked in her rear vision mirror and observed a car behind her but felt she was in no danger. She noticed that it was a red car. While she could not say exactly how far away the red car was she thought it was about 50 metres. She said she thought she was in no danger when she looked in the rear vision mirror.
The defendant said that she applied the left-hand indicator, drove slowly into the driveway to the holiday park, turned and felt a bump. She stopped her car which was completely on the driveway. The other car and its wheels were also on the driveway.
The defendant was criticised by plaintiff's counsel because she lost sight of the plaintiff’s vehicle. The defendant said the vehicle must have moved into her blind spot.
The primary obligation is on a following vehicle to observe the traffic in front and maintain a safe distance. While the universal duty to maintain a proper lookout does include an obligation to be aware of vehicles to the rear, a turning vehicle cannot be expected to keep vehicles which are to the rear under continuous observation because that would mean that the driver could not give proper attention to the direction of travel.
A further consideration is that the driver of the vehicle in front has more restricted opportunities to avoid a collision than a vehicle which is approaching from the rear.
The defendant said that at the time of the collision her vehicle would have been almost stopped to turn into the holiday park. There is no suggestion that her vehicle had braked severely. In fact the defendant gave evidence, and I accept, that she had not applied the brakes. It can be assumed, and I find, that the defendant's vehicle was travelling quite slowly as it approached the driveway. That is consistent with the position in which the defendant’s vehicle came to rest after the collision. While the point of impact and the position in which each of the vehicles came to rest was not pinpointed precisely, the defendant's vehicle cannot have been travelling quickly as it approached the driveway if it came to rest just off the carriageway of Military Road on the driveway to the holiday park
I accept the evidence of the defendant as to the occurrence of the accident. Mrs Curran corroborates her evidence in most respects.
In order to find the defendant negligent on the basis that her lookout to the rear was defective it must be established that there was some evasive action that the defendant might have taken if she had been aware of the approach of the plaintiff’s vehicle. The onus rests with the plaintiff to prove negligence. Perhaps the defendant might have aborted the left-hand turn, continued straight ahead and accelerated out of the plaintiff’s path. Even if she had done that a collision might still have occurred. Such a manoeuvre would have been inconsistent with the defendant’s turning indication. Having regard to the position where and manner in which the vehicles came to rest, I think that the real cause of the collision was the plaintiff’s defective lookout and there is a possibility that the plaintiff’s vehicle would have collided with the defendant's vehicle even if the defendant's vehicle did not commence a turn to the left.
Defendant's counsel submitted that in assessing the plaintiff's driving I should consider what was reasonable in the "agony of the moment".
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.
In my opinion there is no evidence of any negligence on the part of the defendant. I find that she had slowed her vehicle gradually in preparation for the left-hand turn and indicated appropriately. I find that the position of the defendant’s vehicle on the roadway was appropriate. I am not satisfied that she can be criticised for losing sight of the red car in her rear vision mirrors, particularly if it was close to her vehicle, to the left of her vehicle and in a blind spot. If the red car had been about to overtake the defendant's vehicle one would expect it to be to the right, not the left, of the defendant’s vehicle.
Even if the defendant’s vehicle had been further to the right of the carriageway than she stated, that was not by itself negligent and did not entitle the plaintiff to be in a position close to and on the left-hand side of the Land Cruiser. As I have said I accept the defendant's evidence as to the position of the vehicle on the carriageway. There is no explanation for the plaintiff’s vehicle being in the position that it was. The plaintiff denied she was attempting to overtake the defendant’s vehicle on the left. To overtake on the left would have been in breach of the road rules.
The defendant gave evidence that after alighting from her car she asked the plaintiff whether she was all right, the plaintiff said that she did not have details of her licence or insurance and the defendant asked the plaintiff whether she would like to sign a piece of paper to say that she was at fault; but the defendant’s husband came over and told her that she could not do that.
The defendant also said a police officer who attended the scene asked what had happened and the defendant told him that they had an accident and the plaintiff had tried to pass her on the inside. The plaintiff did not make any protest in response to that observation but simply told the police officer that she would make a statement the next day.

The defendant also said that when she got out of the car, after she had asked the plaintiff how she was, the defendant asked "what the bloody hell were you doing?" to which the plaintiff replied that the sun must have been in her eyes. The defendant observed that the plaintiff’s claim that the sun was in her eyes must have been incorrect because the sun was not straight ahead but was in the west to the left of the plaintiff's vehicle. Mrs Curran also gave evidence of the conversation about the sun.
While the plaintiff could not agree with all the defendant's evidence of the events following the collision, she did acknowledge that the defendant approached her at her car and asked her to sign a piece of paper acknowledging that the accident was her fault. That tends to corroborate the defendant's evidence.
I accept the evidence of the defendant as to the conversation after the collision and interpret that evidence to amount to an admission of fault by the plaintiff. That is not the basis for my ultimate finding but it does corroborate the evidence of the defendant upon which the ultimate finding is based. The conversation is inconsistent with the case which the plaintiff has presented.
The plaintiff also believed that there were people in the rear seat and objects piled in the back of Land Cruiser. That belief was incorrect and that evidence detracts from the plaintiff's reliability.
I do not accept the evidence of Mr Whittpoth, the passenger in the plaintiff's vehicle. The accident occurred over five years ago and there are discrepancies between his evidence to the court and a signed statement. He was not able to explain how the plaintiff's vehicle came to be in the position where it was at the time of the collision. The presence of the defendant's vehicle and the fact that it was travelling more slowly than the plaintiff’s vehicle should have been obvious to Mr Whittpoth if he had been paying attention. At first he said he did not see any brake lights but later he said "I guess the brake lights were on with the blinker" and "the brake lights were on yes".
While Mr Whittpoth had no obligation to pay attention or keep a proper lookout, because he was not the driver, the fact that he had not been paying attention detracts from the reliability of his evidence. In his statement he said that he had been looking out the side window. Also he believed that there were four or five children in the back of the 4-wheel drive. That belief was erroneous and presumably was a reconstruction based on the fact that the defendant's children, who were in the holiday village, congregated at the scene after the collision had occurred.
I am unable to rely upon the evidence of the plaintiff or Mr Whittpoth. I accept the evidence of the defendant and Mrs Curran who were both good witnesses.
The plaintiff has not established that the defendant was negligent.
The plaintiff’s claim will be dismissed and there will be judgment for the defendant.
The question of contributory negligence does not arise.
I will hear counsel on the question of costs.