Wilson v Maywald No. DCCIV-98-41857 - [2000] SADC 84

WILSON V MAYWALD
[2000] SADC 84

Judge Herriman
Civil

This action arises out of a motor vehicle collision which occurred on 21 December 1995 at about 6 p.m. at the junction of Acacia Street and Wireless Road West, Mount Gambier. Immediately prior to impact, the plaintiff had been riding a motorcycle, carrying a pillion passenger, in an easterly direction along Wireless Road West and had been approaching Acacia Street, which enters Wireless Road West on its southern side at an angle of 90 degrees. The defendant’s motor car had then been travelling along Wireless Road West in the same direction as, but ahead of, the plaintiff and at a slower speed.
Near that junction, the plaintiff attempted to overtake the defendant’s motor car and, as he did so, it commenced to turn to its right into Acacia Street. The plaintiff’s motorcycle then collided with the rear offside of the defendant’s car, and the plaintiff and his pillion passenger were thrown to the ground. In consequence of this, the plaintiff suffered various personal injuries, for which he now seeks damages in negligence, alleging, inter alia, that the defendant failed to keep a proper lookout and/or to signal his intention to turn right. By his defence, the defendant denies these allegations and contends that he is not liable at all or, to the extent he is found to be liable, the extent of that liability ought to be reduced by reason of the plaintiff’s alleged negligence in, inter alia, driving too fast, failing to observe the defendant’s right-hand turn signal or reduction of speed, and attempting to overtake in unsafe circumstances.
At the commencement of trial, both counsel requested, and I allowed, that the matter should proceed at first to a determination on the question of liability, adjourning the question of assessment of damages to a later time.
I will therefore proceed to discuss the evidence and make my findings on liability.

THE PLAINTIFF’S CASE

The Plaintiff

The plaintiff is a 26-year-old man who lives in Mount Gambier. He has held a motorcycle licence for some ten years. He spoke of the compulsory courses in riding and defensive driving which he had to undertake to acquire that licence and he described how he had been taught that, when riding a motorcycle behind a motor car, he should position himself on the roadway so as to be within the view of that car and that the most favourable position for this was one slightly to the right of an imaginary line extending from behind the centre of the car.
On the afternoon of the accident, he had left work in Mount Gambier at about 3.30 p.m. and had ridden home and changed his work clothes. He could not say how long he had remained at home, but he had then gone to visit his friend, Michael Wright. He was unsure how long he remained at Wright’s house, but at some point the two of them had decided to go and visit…

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: [2000] SADC 84
Decision Date: 12 July 2000

CaseChat Overview and Summary

The action was brought by the plaintiff, Wilson, against the defendant, Maywald, in the District Court of South Australia. The plaintiff claimed damages for personal injuries sustained in a motor vehicle collision, which occurred when he was riding a motorcycle behind the defendant's car, which turned right at a junction. The defendant denied liability, arguing that the plaintiff was negligent in failing to keep a proper lookout and signal his intention to overtake. The court was required to determine the issues of liability, contributory negligence and apportionment of responsibility. The court found that both parties were negligent and apportioned responsibility at 70% to the plaintiff and 30% to the defendant. The plaintiff was found to have failed to observe the defendant's turn indicator and the presence of another vehicle at the junction, while the defendant failed to properly check his mirrors before turning. The court ordered that the plaintiff recover 30% of his damages from the defendant, with the balance to be assessed at a later time.

Orders