Vicario & Vicario v Glennon No. DCCIV-01-1606

[2002] SADC 151

VICARIO & VICARIO -v- GLENNON
[2002] SADC 151

Judge Anderson
Civil

1. Giuseppe Vicario, the first named Plaintiff (“the Plaintiff”) and his wife, Rosina Vicario, issued proceedings on 22 October 2001 against the Defendant, Bernard John Glennon, seeking damages arising from a motor vehicle collision which occurred at about 10.00am on 8 July 2000 on the Sturt Highway at Gawler Belt.

2. The Defendant, in his defence, has denied responsibility in any form for the loss alleged by the Plaintiffs and has alleged, in the alternative, that the Plaintiff, who was the driver of his vehicle, was negligent and/or contributed to the Plaintiff’s loss.

3. At the outset counsel for the Plaintiffs, Mr McRae, with the consent of Mr Milazzo of counsel for the Defendant, indicated to me that this matter was proceeding on the issue of liability only.

4. The Plaintiff said in evidence that at the time of impact he was driving his Berlina motor vehicle north on the Sturt Highway towards the Barossa Valley.  He had travelled from his home via that of his passengers’, Mr & Mrs Mercurio, and his stepson’s residence at Para Hills to the Gawler bypass and then onto the Sturt Highway.

5. The Plaintiff was towing a small two-wheeled single axle trailer in which was paraphernalia to be used for olive picking.  It was the Plaintiff’s intention to travel to the Barossa Valley and for the party to pick olives.

6. I reject the suggestion implicit from the evidence of Mr West, that this impact occurred after the Plaintiff and his party had visited Mr West’s property and picked olives.  I find that at the time of impact, the Plaintiff was travelling towards the Barossa Valley in order that the picking of olives may be undertaken.

7. The passengers in the Plaintiff’s vehicle were, as I have said, his cousin, Mr Mercurio and Mrs Mercurio.  Mr Mercurio was seated behind the driver.  His wife was next to him.  The Plaintiff was the driver and his wife was occupying the front passenger seat.

8. Each of the witnesses in the car gave evidence that, at the time of impact, it was raining.  This evidence was contrary to that given by the Defendant and by Mr Jones, who was working in an adjacent factory, and was at the scene, and the evidence of Mr & Mrs Turnbull who were driving on the bypass to the rear of the Defendant.  I find that whilst it had been raining earlier on that day, and whilst the road may have still had some dampness at the time of impact, it was not then raining and the road was not wet in the sense of being covered with water and, therefore, dangerous.  This point lost importance in the course of the trial as the suggestion that the Plaintiff had, in some way, lost control of his vehicle and aquaplaned was not supported by the evidence and was not pursued.

9. In evidence the Plaintiff said that he drove his vehicle towards the Barossa Valley from the Gawler bypass onto the Sturt Highway, which is a single lane bitumen carriageway in each direction.  He was travelling at 70-80kph.  Immediately before impact he said that he lost some control of his vehicle in that it zig zagged slightly, but not to the extent of travelling outside of its designated lane.  At no time was he aware of the car transporter driven by the Defendant to his rear.  The Plaintiff said that as he travelled northwards, and as his vehicle moved slightly, within its own lane, from that minor loss of control, it was hit by the truck driven by the Defendant and damaged in the fashion shown in the photographs within the exhibits P1 and D1.

10. The Plaintiff denied that at any time he was travelling outside of his lane and specifically denied, also, that immediately prior to impact he had signalled a movement to the left and had left the road, moving onto a wide gravel verge adjacent to the roadway and that the impact occurred as he was coming back onto the roadway in the course of possibly executing a U-turn.

11. The evidence from each of the passengers in the vehicle supported the evidence given by the Plaintiff.  In addition to giving evidence that it was raining at the time of impact, each of those witnesses had no knowledge of the vehicle being driven by the Defendant to the rear of the Plaintiff’s vehicle.  Each also said that they were aware of no sudden movement or change of direction from the Plaintiff’s vehicle which in any way took it out of its lane of travel or which in any way aroused their attention.  They specifically denied that there had been any movement to the left off the bitumen surface of the Sturt Highway onto the gravel verge.

12. The Defendant said in evidence that he had driven his car transporter onto the Gawler bypass from Heaslip Road and Angle Vale Road to the south.  He had travelled on the bypass and had seen the Plaintiff’s vehicle ahead of him and gradually came upon it.  He said that he was about four seconds behind it, travelling at about 80kph as the Plaintiff’s vehicle moved from the end of the Gawler bypass onto the single lane Sturt Highway.  The Defendant came upon the Plaintiff’s vehicle over a distance of some kilometres because he was travelling at 80kph, whereas the Plaintiff was travelling marginally slower.

13. The Defendant said that when he was about four seconds at 80kph behind the Plaintiff’s vehicle, that vehicle indicated a movement to the left and at a point immediately past the 110kph sign, which is shown in the photographs tendered in evidence, and which changes the speed limit from 80kph to 110kph, that vehicle moved to the left onto the dirt verge off the bitumen lane of the Sturt Highway.  The Defendant said that, having seen the vehicle make the move to the left, he looked at the road ahead and checked his mirrors and when he looked again to his front, the Plaintiff’s vehicle was coming back onto the carriageway and across it as if to be undertaking a U‑turn.  The Defendant said that he activated his emergency braking system and pulled his truck to the right.  A collision occurred with the left front bull bar vertical of the truck coming in contact with the driver’s side door pillar area of the Plaintiff’s vehicle and the vehicles then moved off the right hand edge of the bitumen pavement and came to halt adjacent to a fence some metres from the edge of the bitumen such that the rear of the Defendant’s truck, which consisted of a prime mover and two trailers, was off the bitumen pavement.

14. Photographs tendered as part of the exhibit P1 show tyre marks on the bitumen surface adjacent to the right of the centre line.  It was agreed in evidence that these marks were about 15 degrees to the right of the line of direction of the centre line.  It was further the evidence of the experts that the tyre marks were made by the right hand tyres of the first trailer of the Defendant’s vehicle as the prime mover did not leave rubber marks on the road from the emergency braking procedure because of the function of its anti lock braking system.

15. Mr Hall, an expert in motor vehicle accident reconstruction, was called to give evidence on behalf of the Plaintiff and Professor McLean, of similar expertise, was called on behalf of the Defendant.  Mr Hall expressed the opinion that the impact was more a sideswipe than a direct impact to the right hand side of the Plaintiff’s vehicle.  He said that the angle of impact was in the vicinity of 20 degrees to the side of the car.  However, he agreed in evidence, having seen the tyre marks on the roadway and estimating their angle of deflection from the line of travel at 15 degrees, that that meant that the angle of impact between car and truck would be in the vicinity of 35 degrees.  He maintained that because of the nature of the damage to the side of the vehicle, even at that angel, that it was more damage that progressed along the side than directly into the vehicle.  He found support in this opinion from the fact that the driver’s door skin had been peeled off in the course of the collision and suggested that had the impact been more directly into the side of the vehicle, then the door skin would have been impacted upon and pushed into the door itself and into the cabin of the vehicle.

16. Professor McLean expressed the view that the impact occurred when the Plaintiff’s vehicle was at between 35 and 45 degrees to the direction of travel of the front left hand portion of the Defendant’s vehicle’s large bull bar.  He rejected the suggestion that the angle of impact was less than 35 degrees and he rejected, consequently, the suggestion that this was more of a sideswipe than of direct impact.

17. As between the experts, I prefer the evidence of Professor McLean.  The concession made by Mr Hall as to the angle of impact is significant.  There is insufficient support remaining after that concession to support the scenario of a sideswipe.  In addition, there are other things which support the position of the Plaintiff’s vehicle being as described by the Defendant and Professor McLean.

18. The evidence of Mr & Mrs Turnbull, who had been travelling on Heaslip Road and had allowed the Defendant’s vehicle to pass them, is important.  They gave evidence that they followed the Defendant’s truck through several different speed zones on Heaslip Road, Angle Vale Road and the Gawler bypass and observed the sudden braking which they subsequently learnt to be the impact on Sturt Highway.  Their evidence was that the Defendant drove within the varying speed limits and conservatively at all times.  The Defendant said that he drove within the speed limit at all times and was within the speed limit at the point of impact.  I accept that evidence and reject any suggestion, to the extent that it has been made, that he was travelling at an excessive speed or driving in an irresponsible manner.

19. Had the Plaintiff’s vehicle been in the position described by the Plaintiff and his passengers, travelling in a northerly direction within the lane on the bitumen carriageway, then the accident could not have possibly occurred as it did.  The experts agree that the rubber marks on the roadway, to which I have referred, came from the right hand wheel of the first trailer towed by the Defendant’s prime mover.  Thus, it means that the remainder of that vehicle was to the left.  That being so, had the Plaintiff’s vehicle been on the roadway, then it would have been run into substantially more to the rear and there could not have been a side swipe as the Plaintiff’s vehicle would have been occupying a good portion of the lane in which the Defendant’s truck was also travelling.

20. Support for the evidence of the Defendant that the Plaintiff’s vehicle moved off the roadway also comes from Mr Jones, who was standing in a factory adjacent from the point of impact, and perhaps 100 metres away.  He said he heard the sound of wheels in loose gravel and immediately thereafter heard an impact.  He ran from the factory and saw the truck and car as they had come to a halt in the position on the opposite side of the carriageway, as I have described.

21. In addition, Mr & Mrs Turnbull gave evidence that immediately before they saw the puff of smoke from the brakes at the rear of the prime mover, they saw dust to its left hand side.  Thus, this evidence, and that of Mr Jones, is consistent with the Plaintiff having moved his vehicle off the bitumen and onto the left hand verge.

22. The effect of this evidence is to establish, on the balance of probabilities, that the collision more likely occurred as described by the Defendant than described by the Plaintiff.  The Plaintiff’s scenario, in my view, is physically impossible, having regard to where he maintains his vehicle was and the evidence of Professor McLean as to the angle of impact.  It is also made inherently unlikely by the concession made by Mr Hall as to the angle of impact between the truck and the car.

23. Accordingly, I find that the collision occurred as the Plaintiff, for reasons which are presently unknown, having left the roadway and moved onto the gravel verge, brought his vehicle back onto the roadway ahead of the semi‑trailer which was there to be seen and was hit by the front left portion of the truck’s bull bar as the Defendant executed an emergency braking procedure and turned his vehicle a few degrees to the right.

24. I am not persuaded that this conclusion is incorrect by the evidence given by Mr Hall as to the rubber marks on the rear passenger door of the Plaintiff’s vehicle.  Clearly, these marks came from the trailing edge of the front left hand wheel of the prime mover and, in all of the circumstances, it is more likely that, initial impact having occurred between the B pillar immediately behind the Plaintiff’s seat and the left hand vertical of the Defendant’s bull bar, that the force of the impact rotated the Plaintiff’s vehicle in an anti‑clockwise direction in the first instance as described by the experts and that it was then flung onto the turned wheel as the truck sought to move to the right and come to a halt.

25. Mr McRae submitted that in the circumstances which I have described, there remains available a finding that the Defendant has contributed to this collision by his admitted incomplete lookout ahead of him immediately after the Plaintiff’s vehicle left the roadway. He conceded that in the circumstances of such a finding, the degree of alleged contributory negligence would be small, but submitted that because the Defendant took his eyes from the Plaintiff’s vehicle as it moved off the roadway only to find, when he looked again to his front, having completed his mirror check, that the vehicle was there on the roadway, there was a degree of negligence.  In that regard he referred me to a long line of cases originating from the well known dicta of Wells J in Stoeckel v Harpas [Note] (1971) 1 SASR 172.

26. I have looked at the cases set out in the Plaintiff’s list of authorities and to which Mr McRae referred in his final submission.  This is not a case of a following driver failing properly to comprehend what was happening on the carriageway ahead of him and thus failing to discharge the high onus cast upon such a driver: Mugford v Ames (2000) 31 MVR 406 and Waugh v Carter [2001] SASC 17. In this matter I am satisfied that the Plaintiff’s vehicle had left the carriageway in the manner described by the Defendant before the Defendant took his eyes from that vehicle.

27. I accept that there is an obligation on a driver in the position of the Defendant to drive defensively.  However, in these circumstances where, as I have found, the Plaintiff’s vehicle has signalled and left the road, the Defendant is entitled to assume not only that before it left the road he may have been seen by the Plaintiff, but that the Plaintiff, having left the road, would not re‑enter the carriageway without fulfilling his obligations at law, that is to say, without ensuring that the carriageway was clear of traffic.

28. Plainly, the Plaintiff has failed to make any observation as to what was to his rear at any time.  The consequence is that he failed to see a very large vehicle which was possibly 80 metres to his rear and travelling within the speed limit.  To have moved from a position in loose gravel onto the carriageway without having paid attention to the carriageway so as to ensure that there was no oncoming traffic was negligent.

29. I am unable to be satisfied that the Defendant’s actions, as he described them both before and after seeing the Plaintiff’s vehicle leave the carriageway, have, to any degree, contributed to this collision and the subsequent loss of either Plaintiff.  Thus, s27A of the Wrongs Act 1936 has no application here.

30. Accordingly, there will be judgment for the Defendant.  I shall hear counsel on the question of costs.