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.

1. 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.

2. 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.

3. 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 p h.  The plaintiff thought that when he passed the first vehicle it was still travelling at the same speed.  He was not aware of the vehicle slowing down until he was “right upon it”.  He estimated the speed of the defendant’s vehicle as it commenced the turn to be about 30 k p h.  The plaintiff said that when he was level with the back bumper bar of the defendant’s vehicle he noticed there was a very faint indicator operating on the defendant’s vehicle.  He immediately commenced braking, but no sooner had he seen the indicator light than the defendant’s vehicle turned to its right and the collision occurred.

4. The Judge relied heavily upon the evidence of two witnesses in the vehicle immediately following the defendant’s Ford.  He reached the conclusion that their evidence “totally” supported the evidence of the plaintiff.  The driver of that vehicle, Ms Jackson, said that she was following the defendant’s vehicle at about 100 k p h and at a distance of approximately one car length.  She suddenly became aware that the gap was closing and she had to brake very heavily.  She did not see any brake lights or indicator lights except that, as the defendant’s vehicle turned right, she may have seen a “very faint brake light”.  She braked heavily to about 60 k p h and came very close to the defendant’s vehicle.  She thought the defendant’s vehicle was doing a little more than 10 k p h when the turn was executed.  She denied that it was possible that the defendant’s vehicle had slowed down gradually. 

5. The passenger in Ms Jackson’s vehicle, Mr Hodgson, estimated the distance between their vehicle and the defendant’s vehicle as approximately four to six car lengths.  He said they were following at about 100 k p h when “all of a sudden we were coming up behind it very fast”.  He confirmed the heavy braking and said that the defendant’s vehicle almost became stationary before turning right.  At a point when he thought they were just about to hit the defendant’s vehicle, he became aware of the right turn indicator operating.  He thought the lights were tinted or dirty because he could not see the indicator light at an earlier time.  From Mr Hodgson’s perspective, “all of a sudden we just seem to be right on top of her”.  He accepted that the defendant’s vehicle may have been slowing down gradually and he did not become aware of it because it did not catch his eye.

6. The Judge expressed reservations about the evidence of the defendant, particularly in connection with her evidence that she stopped.  He had the impression that there was a measure of reconstruction by the defendant as to the details of the accident.  His Honour relied heavily upon the evidence of Ms Jackson and Mr Hodgson.  He regarded them as independent witnesses and expressed the view that their evidence “totally” supported the evidence of the plaintiff.

7. His Honour expressed his conclusions as follows:

   “I find it impossible to criticise the nature of the driving of the plaintiff.  He was not speeding.  He was keeping a proper lookout.  Certainly there was the sharp deceleration of the defendant’s car, but that was without warning to him.

   I find, and it has to be a finding, that there certainly were no brake lights visible on the Ford, and, the only light that appeared was the faint indicator light, indeed, at the point of turn.  My finding would be that the light appeared at or about the time the defendant caused her car to be driven across the road into the course of the overtaking motorbike, a bike which she had never seen and never observed.  There was a total failure of lookout by the defendant.  One may have thought having been passed by a large number of motorbikes, she may well have been placed on alert.  However, the defendant’s inexperience may have been to the fore.  The indicator light was applied late, or, for some reason, was defective and not readily apparent until an observer was in close proximity.

   However, the following car did take some evasive or defensive driving action but the plaintiff was in no position to see the manner of the defendant’s driving.  He was passing at a speed which was reasonable in all the circumstances, and, the sharp turn without warning across his path, was, to me, the sole causative factor of this collision.  The defendant’s lookout was also totally defective.

   I would not find the plaintiff’s driving in any way contributed to this accident.”

8. Counsel for the defendant criticised the Judge’s finding that the evidence of Ms Jackson and Mr Hodgson “totally” supported the plaintiff’s evidence.  In particular he relied upon the differences with respect to the speeds of the vehicles and contrasted the evidence of the plaintiff with that of Mr Hodgson as to the position of the plaintiff’s motorcycle at the time that Ms Jackson braked heavily.

9. The Judge accepted the evidence of Ms Jackson and Mr Hodgson.  Acceptance of their evidence involved the finding that the two motor vehicles were travelling at about 100 k p h, not 70 to 80 k p h as suggested by the plaintiff.  According to Ms Jackson, the defendant’s vehicle slowed to about 10 k p h or a little faster before commencing the right turn.  Mr Hodgson said that the defendant’s vehicle almost became stationary before turning.  His Honour accepted their evidence and it fitted with the other evidence that a turn into the driveway at speed would be dangerous because of loose gravel on the driveway.  It follows from this evidence that, immediately before commencing the right turn, the defendant’s vehicle slowed from about 100 k p h to approximately 10 k p h or a little more.  Accepting the evidence of Ms Jackson and Mr Hodgson that this deceleration occurred quickly, nevertheless it must have occurred over some distance.  In addition, the deceleration by the defendant resulted in Ms Jackson applying her brakes heavily.

10. In my opinion, there is no basis upon which this Court could properly interfere with the finding of the Judge that he preferred the evidence of Ms Jackson and Mr Hodgson to that of the defendant.  However, I have reached the view that his Honour failed to analyse properly the effect of their evidence.  If the plaintiff had been paying proper attention to what was happening in front of him, he would have become aware of a sudden slowing of the vehicles. 

11. I have also reached the view that his Honour failed to give sufficient weight to the heavy duty that rests upon a following driver.  While there was a duty resting upon the defendant to ensure that it was safe to execute the right turn and to give ample warning of her intention to do so, as a following driver a heavy duty rested upon the plaintiff to drive with such care as to enable him to avoid colliding with vehicles in front when such vehicles undertake unexpected manoeuvres  (Mugford v Ames (2000) 31 MVR 406). The plaintiff should have been alerted to the possibility of a change in direction of travel by one of the vehicles in front of him by reason of the sudden deceleration of those vehicles. It was not just the vehicle in front of him that the plaintiff was about to overtake. He set about overtaking both vehicles at a time when his view of the front vehicle of the defendant was obscured by the vehicle driven by Ms Jackson. In those circumstances, the plaintiff was required to exercise particular care because he was not previously in a position to observe whether the defendant’s vehicle was giving any indication as to a change in direction.

12. In my opinion, the Judge erred in failing to analyse properly the effect of the evidence of the independent witnesses, Ms Jackson and Mr Hodgson, and in failing to give sufficient weight to the heavy duty resting upon the plaintiff in the circumstances in which he commenced the overtaking manoeuvre.  Accepting the evidence of Ms Jackson and Mr Hodgson, while the defendant was negligent, the negligence of the plaintiff also contributed to the accident.  Section 27A of the Wrongs Act requires this Court to reduce the damages payable to the plaintiff to such extent as the Court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage (Hooker v Grinham - unreported Judgment No. S6424 delivered 5 November 1997).  If the plaintiff had kept a proper lookout, he would have appreciated the sudden slowing down of the vehicles in front of him and would have been alerted to the possibility that a change in direction might be made by one of those vehicles.  In attempting to execute a passing manoeuvre involving two vehicles, the plaintiff was required to be particularly careful that the front vehicle, the view of which was obscured, was not about to change direction.  In these circumstances, in my opinion it is just and equitable to reduce the damages payable to the plaintiff by 35 per cent. 

13. I would allow the appeal and set aside the order of the Judge.  In substitution for that order, I would order that the plaintiff recover damages to be assessed, but reduced by 35 per cent. 

17.............. OLSSON J......... The order of the Court will accordingly be as such said by Martin J.

1. That leaves the cost of not only the appeal, but a special order of costs at first instance.

19.............. OLSSON J......... As to costs, the judgment at first instance will also be varied to provide 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.