Waugh v Carter No. Scgrg-00-515 - [2001] SASC 17

WAUGH v CARTER
[2001] SASC 17

Full Court: Olsson, Duggan and Martin JJ (Ex tempore)

1................ OLSSON J......... I agree with the reasons expressed by Martin J and the orders which he proposes.

2................ DUGGAN J....... I agree that the appeal should be allowed for the reasons given by Martin J. I also agree with the orders that he has proposed.

3................ MARTIN J......... This is an appeal by a defendant in proceedings before a District Court Judge in which the plaintiff sought damages for personal injuries arising out of a motor vehicle accident. The Judge was asked to determine only the issue of liability and found that the negligent driving of the defendant was the sole cause of the accident. The defendant has submitted that the Judge was in error in a number of respects and that the plaintiff was guilty of contributory negligence.

The accident occurred on 18 January 1998. The plaintiff was riding his Honda motor cycle in a southerly direction on Main South Road. The road is comprised of two lanes. The defendant was driving a Ford Sedan in the same direction, but ahead of the plaintiff. Another vehicle was travelling in the same direction and was positioned between the plaintiff and the defendant. As the plaintiff undertook a passing manoeuvre, the defendant commenced a right turn intending to enter a driveway on the opposite side of the road. The plaintiff’s motorcycle collided with the right-hand side of the defendant’s Ford Sedan. The plaintiff sustained serious injuries.
The defendant said that she was driving at a speed of about 100 k p h as she approached the driveway into which she wished to turn. She said that she indicated her intention to turn well in advance of the driveway and, over some distance, slowed down and stopped or almost stopped before she commenced executing the turn to the right. She was aware of a car behind her, but not aware of the plaintiff’s motor cycle behind that car. She said she checked her rear vision mirror before turning.
According to the plaintiff, he approached the two vehicles at a speed of 80 to 90 k p h. In examination he said he took up a position approximately five to six car lengths behind the vehicle between him and the defendant’s Ford and, for approximately one kilometre, followed the two vehicles at a speed of about 70 k p h. In cross-examination the plaintiff said he was only behind the two vehicles at 70 k p h for a “few seconds” before he commenced the overtaking manoeuvre. He did not notice any marked deceleration of the vehicles in front of him before he commenced his manoeuvre. He said that when he moved to overtake, he increased his speed to about 105 k p h and that, in the split second he had moved out and increased his speed, the other vehicles must have slowed down from 70 to 80 k p h to about 30 k…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] SASC 17
Decision Date: 6 February 2001

CaseChat Overview and Summary

This appeal concerns a motor vehicle accident which resulted in the plaintiff suffering serious personal injuries. The defendant appealed against a finding of the District Court Judge that she was solely liable for the accident. The Full Court of the Supreme Court of South Australia found that the plaintiff was also negligent and that the damages payable to him should be reduced by 35 per cent. The Full Court was required to determine whether the Judge was correct in finding the defendant solely liable and whether the plaintiff was guilty of contributory negligence. The Full Court found that the Judge had failed to properly analyse the evidence of two independent witnesses and had not given sufficient weight to the heavy duty resting upon the plaintiff in the circumstances in which he commenced the overtaking manoeuvre. The Full Court found that the defendant was negligent, but that the negligence of the plaintiff also contributed to the accident. The Full Court ordered that the damages payable to the plaintiff be reduced by 35 per cent. The Court also ordered that the defendant pay the plaintiff's costs of action on a party/party basis and that the appellant have the costs of the appeal to be taxed.

Orders