Wilson v Maywald No. DCCIV-98-41857

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 a friend of Wright’s who lived in Creek Street. All these locations are within the town of Mount Gambier and, in particular, Creek Street is a relatively short distance from the scene of the accident. They were not at that address for long; according to the plaintiff, for about ten minutes. They then left to go home, at about 6 p.m.
I should pause here to record that the plaintiff was at that time the owner of a Harley Davidson motorcycle and it was that vehicle which he had used to travel to Wright’s place, thence to Creek Street and on which they were returning home. They were both wearing helmets, the plaintiff’s helmet having an open face.
Upon leaving Creek Street, it was the plaintiff’s intention to proceed home, dropping off Wright on the way. Accordingly, he made his way to Wireless Road West, entering it at a roundabout intersection with Suttontown Road. From there, he travelled eastwards up a rise, which then descends from its apex to the Acacia Street junction over an agreed distance of 200 metres. That descent is not gradual, in the sense that the road descends and then flattens out at a point which was not established at trial, but which was at least greater than 60 metres west of the junction.
On the plaintiff’s account, as he left the roundabout and commenced to ascend the rise, he became aware of a white motor vehicle travelling in the same direction ahead of him and just passing over the crest of the rise. It can be inferred that the plaintiff then lost sight of that vehicle until the point when, on his own account, he went over the rise and saw it travelling downhill at a distance ahead of him which he estimated at 50 metres. He said that at that point he became aware that the white car was travelling a lot slower than he was. He was travelling at 60 kilometres per hour and said he was aware of that speed for two reasons: first, because the speedometer of the Harley Davidson is a large one and positioned in his line of sight at the centre of the handlebars and, secondly, because the motorcycle has a distinctive sound and he is conscious of the noise it makes at various speeds. He said that as he descended the rise, he began to gain steadily on the white car, which he estimated was travelling at about 40 kilometres per hour in the centre of the eastbound carriageway.
At this point, I should say that it was common ground that that particular section of Wireless Road West was, at the time, divided by a white line into single eastbound and westbound carriageways, respectively, and that, for reasons which are not clear, the eastbound carriageway was considerably narrower than the westbound one. On the evidence of the plaintiff’s father, which was not seriously challenged, the eastbound lane was 3.4 metres in width and the westbound lane was 6.7 metres in width, and the white dividing line was a broken line.
Further, it was common ground that, at the relevant time, the light was good, the roadway was dry and there was a clear view to be had by both drivers of the roadway ahead of them.
On the plaintiff’s account, as he approached the defendant’s car he changed down gears to marginally slow his motorcycle so it travelled downhill at less than 60 kilometres per hour, and he did this for a distance of between 100 to 150 metres. He said that his speed had reduced to about 45 kilometres per hour as he approached the car. He was positioned slightly to the right of an imaginary line taken from the centre of the car and he held to that position as he gained on it. His motorcycle was not fitted with turn indicators and he did not at any time see any turn indicators operating on the defendant’s car. At the point where he decided to commence overtaking the defendant’s car, he was travelling at 45 kilometres per hour and had reached a point some 50 metres short of the Acacia Street junction. He then signalled his intention to overtake by extending his right arm to shoulder level. He did not do that for long, “a couple of seconds”, and then returned his right hand to the handlebar of his motorcycle, whereupon he diverged his motorcycle to the right to commence passing the car, which was still occupying the centre of the carriageway ahead of him. At this point, he was about one and a half car lengths behind it and he still had seen no rear indicator or brake lights operating on the car.
As he commenced to overtake, and at a point about one metre from the car, he saw its brake lights come on, the defendant’s car braked suddenly and it then commenced a right turn into Acacia Street.
At that moment, his motorcycle was positioned in the westbound lane of Wireless Road West. He said that, even then, the defendant’s car was not showing any turn indicators. He described the defendant’s right-hand turn as an abrupt one and said that as it happened, he realised he had nowhere to go. He tried to push hard on the handlebars of the bike to make it go to the left of the car, but he was unable to achieve that and the collision occurred. He had little recollection of events after that until he found himself in hospital.
As he commenced the overtaking manoeuvre, he accelerated to a speed which he believed was 60 kilometres per hour.
For the purposes of better understanding the evidence, a view of the scene was then taken and certain matters of agreement were recorded in the transcript (including that the position of the white centre line in the roadway had been moved since the time of the collision).
In cross-examination, the plaintiff said that he had traversed Wireless Road West on previous occasions, but he did not use it regularly. He had had his motorcycle, he said, for some six months and, indeed, in the past six years had owned five motorcycles. The Harley Davidson had been acquired without indicators and he did not consider that the installation of indicators would necessarily have made it any safer.
He was challenged as to whether he had discussed the accident with the witness Wright and he said he believed he had, but did not know if it had been more than once. It emerged that there had been a previous police hearing relating to it. He said he had not discussed it with Wright before that hearing and did not believe he had discussed it with him since. Otherwise, he could remember discussing it only with his parents and his lawyer.
He was asked if at any time prior to the collision he had seen any vehicle approaching the junction from Acacia Street, but he said he had not and he denied any suggestion that such a vehicle was there. When cross‑examined about his overtaking manoeuvre, he said that he had not decided to overtake the car when he was at the top of the hill, but only as he came closer to it. He said he had throttled back and changed gear as he came downhill in order to keep his speed at or near 60 kilometres per hour. He was very conscious of that speed. It was suggested to him that he might have overtaken the defendant’s vehicle at an earlier point than he chose, but he said he was too far behind it previously.
He said that he changed down gears to control his speed as he went downhill and approached the defendant’s vehicle in order to give himself the opportunity “to see what was going to happen” (p.42). His concern, he said, was to ensure that the road was clear and that it was safe to attempt the overtaking manoeuvre. It was put to him that he had accelerated as he came down the hill, but he denied that. He was tested on the presence of a stationary car approaching the junction with Acacia Road and he said he had no recollection of seeing it there. Further, he did not recall seeing any approaching car or any other car at any time. He denied yelling out anything to his pillion passenger. He said he accelerated to a speed of 60 kilometres per hour to complete overtaking the defendant and there was no need to go any faster than that. It was suggested to him that his motorcycle was then at full throttle, but he denied that.
He was tested on the events immediately preceding the collision. He said that he was fully committed to the overtaking manoeuvre at the time he realised that the plaintiff was turning to the right. He denied the defendant was turning slowly and said that the car braked abruptly. He denied reconstructing the events and his speed afterwards.
As the plaintiff gave his evidence, I formed the impression that he was a deliberate person and I did not think that he set out to consciously deceive or embellish his account of events. That does not imply any judgment on his driving performance, but I did not consider his evidence was substantially shaken in cross‑examination.

The Plaintiff’s Father

The plaintiff’s father, Mr Maurice Wilson, was called and he recounted receiving a telephone call on the day of the accident and going to the scene, which was less than ten minutes away from his home. He saw the plaintiff being attended to by the ambulance officers and being assisted by others. He saw the position of the plaintiff’s motorcycle on the road and also the position of a white Ford sedan, which had apparent impact damage on the rear offside corner panel over the rear wheel. He said that he paid careful attention at the scene to its layout and the position of the vehicles and that he had later prepared a plan in order to refresh his memory for the purposes of this hearing.
He acknowledged the plan he produced had been prepared after the police proceedings and he further conceded that he had gone back to the scene later on to take the measurements contained in that plan. He was cross-examined on the voir dire relating to the preparation of that plan. He readily conceded that the measurements had been taken at a later time, but he said that at the time he took them and although the white line dividing the carriageways had been moved, the line that had previously existed there was still apparent and he had taken measurements from it.
In the event, the plan became Exhibit P2. Amongst other things, it disclosed the dimensions in Wireless Road West, which I have already discussed. He had marked on the plan what he said were his recollections of the relative positions of the plaintiff, the motorcycle and the defendant’s car as he had observed them at the time he attended the accident scene.
Defence counsel objected to the use of the plan for that purpose on the basis that it was not a contemporaneous record and that the witness’s recollection was affected by time and the events of the accident. I decided to receive the plan as it was. It appeared to me that the defence objection really went to the weight of the witness’s evidence rather than its admissibility and plaintiff’s counsel had intimated that he would likely be calling expert evidence on the circumstances of the collision. In the event, such evidence was not called and, in those circumstances, I should record that, in my consideration and findings, I have paid no regard at all to this witness’s evidence as to the relative positions at the scene, after the accident, of the plaintiff, his motorcycle and the defendant’s car.

Michael Wright

The plaintiff’s friend and pillion passenger, Michael Wright, was called. He confirmed their movements on the afternoon prior to the accident. He first saw the defendant’s car as they came over the crest in Wireless Road West. He said it was 50 metres or so ahead of them, although he said he was not good at estimating distances. He thought it was about half-way down the slope from them and travelling slowly, so that they were catching up to it. He estimated their speed at 60 kilometres per hour.
He recalled that, as they got close to the car, the plaintiff changed down a gear; it did not significantly affect their speed, but it might have slowed them a little. The car was in the middle of their carriageway and he described the position of the plaintiff’s motorcycle as being to the left of the white line as they approached the car and to the right of the centre of the car. They remained in that position as they approached the car and only altered it when the plaintiff began to pass it. He said that by reason of the heights of the front and rear seats on the motorcycle, he was able to see over the plaintiff’s head as they approached the car, and he did not see any brake lights or indicator lights operating on it.
He thought that immediately before the plaintiff commenced the overtaking manoeuvre, the motorcycle was positioned about five metres behind the car. It then pulled out to its right to commence overtaking. He did not think it accelerated as it did this. At a point where the motorcycle was on the white line or to the right of it and in a position he described as “diagonally behind” (p.73) the quarter panel of the car, a metre or so, he saw the car’s brake light come on and he thought the collision occurred more or less immediately after that.
In cross-examination, he was challenged as to whether the brake lights might have been operating, but unobserved by him, prior to the time when he first saw them. He did not think so; he did not have the car under constant scrutiny, but he said it had remained within his view during the whole time. He said that he did not see the plaintiff give any indication of his intention to overtake the car and he first became aware that the manoeuvre was to commence when the plaintiff veered to the right. It was preceded by a change down in gear and a slight reduction in speed. He agreed that he probably discussed the accident with the plaintiff at some time afterwards, not so much as to how it happened, but rather how they were injured in it.
I formed a favourable impression of Mr Wright. He appeared to speak candidly of what he recalled of the accident. He was ready to acknowledge his lack of memory or uncertainty about certain matters, but he was firm on others. Whilst his evidence supported the plaintiff in some respects, it did not do so altogether. I thought he did his best to give a true account of what happened.

Maxwell Medhurst

The plaintiff called Mr Medhurst, the crash repairer who recovered the motorcycle from the scene and had control of it for some time after that. He identified it from photographs and, in particular, a photograph of its speedometer (P1). He recalled that after the accident, he had seen the speedometer hanging from the bike by a cable. He had taken no special care of it in recovering the vehicle, but, so far as he knew, the speedometer had not been interfered with by anybody, either then or later.
P1 showed an apparently broken speedometer, but with an intact face or dial and its indicator needle frozen or fixed at a speed close to 60 kilometres per hour. The needle was itself bent and it appeared that the dial had, by then, no protective covering.
In the lack of any expert evidence as to the proper interpretation I should place on those observations of the speedometer, I should say that I have had no regard to Exhibit P1. True it is that the speed at which the dial is apparently fixed, corresponds with the speed the plaintiff and Mr Wright say they were travelling at the time of the accident, but I cannot regard the photograph as corroborative of that, particularly given the damaged nature of the instrument and the circumstances of its retrieval from the scene.
For those reasons, the evidence of Mr Medhurst was of no particular assistance.

Mark Jennings

Mr Mark Jennings lived at O’Connor Drive, a street parallel to Wireless Road West, but set back a short distance from it and separated from it by parkland. His house was one of two units facing northwards and abutting the western side of Acacia Street. His unit was the second one in from that street.
He recalled being in the lounge room of his house on the evening of the collision and described how from his lounge room window he had an open view of a substantial portion of Wireless Road West from its eastward descent to at least the Acacia Street junction. Mr Jennings was himself a motorcycle enthusiast and had ridden and raced them previously.
He said that on the evening in question, his attention was attracted by a sound which he identified as the engine noise of a Harley Davidson motorcycle. He was able to identify the noise because he described it as a distinctive sound and he was therefore prompted to look out of his lounge window. What he saw was obviously the plaintiff’s motorcycle carrying Mr Wright and coming down from the crest of Wireless Road West to his left. At the same time, he observed the defendant’s car ahead of them and travelling in the same direction. He conceded there were probably other cars in the vicinity, but his attention was focussed upon the Harley Davidson. He said that he noticed nothing in particular about its speed, that it was not going quickly and that he could not comment on the speed of the motor car. He thought it was a Ford make of a cream or light colour.
He was asked about the relative speed of each vehicle and at first thought they were “both coming up pretty quick” (p.91), but then considered that they were probably “going along the road like anyone else”. He did not at that time notice any speed differential. He said he was likely in a position that he would have noticed indicators operating on either of the vehicles, but not necessarily brake lights. He saw none operating on the motorcycle (and, of course, there were none fitted), nor did he see any operating on the car. At the time he first saw them, the cycle had just cleared the crest of the hill and the car was “coming down the hill” (p.92). Apart from the noise made by the motorcycle, nothing in particular then attracted his attention.

He actually witnessed the collision and necessarily saw the distance between the two vehicles close as that moment approached, but he paid no particular attention to the fact that the motorcycle was obviously gaining on the car. As to the white car, he said that just before the collision:
“A...... ... I noticed it turned the corner quickly, went to turn the corner quickly and just stopped suddenly and bang, that was it.
Q.At the time you say it turned the corner, did you notice then whether any indicators were operating.
A....... No, I can’t say for sure that I seen an indicator.
Q.Did you before it braked suddenly notice the brake indicator light come on.
A....... Not from where I was, no. I wouldn’t have been able to see the brake light. I just noticed he’d turned the corner quickly and then seemed to just stop as he was turning before he turned.” (p.93)

As to speed estimates, he thought that both vehicles were travelling at about 60 kilometres per hour as they came down the hill, but the car “was slowing down in front of the Harley” (p.94) and the Harley was closing the gap.

Under cross-examination, he agreed that his focus was principally upon the Harley Davidson and his attention specifically turned to the car only when it started to make its turn. He did not see any indications from the motor bike suggesting that it was commencing to overtake the car. He was conscious of the noise being made by the Harley Davidson and did not consider that there was any alteration in its level of sound such as to suggest that it had accelerated. It was suggested to him that he had no reason to check whether the car was showing right-hand turn indicators and he responded “I wasn’t looking for an indicator but I remember looking because I knew it was going to be close so I looked” (p.96). He said he looked “a bit before” the collision and that the car stopped immediately before the collision occurred. He was not sure whether he recalled seeing a car in Acacia Street waiting to enter Wireless Road West.
He was challenged as to the focus of his attention to these events and responded that, up to the point where he apprehended that a collision might occur, his attention had been on the motorcycle, but that from that point he had looked at both vehicles.
Mr Jennings gave his evidence in a careful, straightforward manner. He disclaimed any particular expertise in judging relative speeds and distances and did not purport to have the car under scrutiny for a substantial part of the relevant events. His observations as to the relative positions of the vehicles at the time he first saw them, appeared to be consistent with other evidence, as were his observations as to the relative constancy of the speed of the motorcycle. At critical times he did not see any indication displayed by the motorcycle of an intention to overtake, nor did he see any indicator operating on the car. He did not purport to describe any movement of the motorcycle out to its right to commence an overtaking manoeuvre, but from his viewing point, such a movement might not easily have been detected.
What is of some significance in his evidence is the fact that his attention was apparently drawn to the car and to the likelihood of an accident by what he interpreted as a quick movement on its part as it commenced a turn. Had he appreciated at some earlier time that the car was intending to make that turn, it seems unlikely that he would have found the quickness of the turn to be a matter of any moment. It would not likely have attracted his attention. Put shortly, it appears from his evidence that until he saw the car turn, he was not expecting it to do so. That observation does not necessarily imply that the car exhibited no signal of its intention to make the turn, but it does imply that, if it did so, Mr Jennings did not see it.
Counsel for the defence purported to suggest in addresses that Mr Jennings was not a truly independent witness because in his evidence, the plaintiff disclosed that Jennings was a friend of the pillion passenger, Michael Wright (p.139). I am not persuaded that that impacts in any way upon the integrity of Mr Jennings’ evidence. Neither Jennings nor Wright was asked in cross‑examination about the nature of their relationship and Mr Jennings’ account of events did not in all respects support the plaintiff’s version. I consider that he did his best to provide a fair account of what he saw.

THE DEFENCE CASE

The Defendant

The defendant, Carl Maywald, gave evidence. He is now 80 years old and spoke of his driving experience over some 50 years. He had driven extensively for leisure and work purposes and had not previously had any accident, nor, indeed, been convicted of any offences.
He recounted how he was driving his white Falcon in an easterly direction along Wireless Road West and intending to make a right-hand turn into Acacia Street. It was a route he had travelled many times and his home was nearby. He recalled descending from the crest of the hill towards the junction and reducing his speed gradually from what he said was a speed of 40 to 45 kilometres per hour at the crest. He said that by the time he reached the speed sign which was positioned to the north of the flat section of Wireless Road West and west of the junction, his speed had reduced to 40 kilometres per hour. He said that it was at this point he switched on his right-hand turn indicator. (I should say here that counsel had agreed that the location of that sign was 50 to 60 metres west of the Acacia Street junction.) The plaintiff said that he actually put his indicator on when he was on the crest, or western, side of that sign. He said that when he put it on, he checked in his rear vision mirrors and saw no vehicle in the roadway behind him. He said that after switching his indicator on, he further reduced his speed in order to make the right-hand turn, and he did this by removing his foot from the accelerator.
As he approached the junction, he observed a vehicle waiting in Acacia Street to enter Wireless Road West and he identified that as the vehicle driven by the witness Garrod. He said that by the time he came to make his right-hand turn, he was travelling at between 5 and 10 kilometres per hour. He denied he braked at all prior to making that turn and he was conscious of the presence of a spoon drain near the junction which required him to be travelling at a slow speed. He began his right-hand turn and then felt the collision to the rear of his car, whereupon he braked. He said he put his foot on the brake suddenly at the point of impact (p.124). He said that at the point of collision, his car was practically facing directly into Acacia Street.
Under cross-examination, he was asked about the manner in which he slowed from the time he passed over the crest of the hill and he replied that he managed to control the speed of his car right up to the time of the collision by using its gears. It was an automatic car, but he had changed into second gear from some point to the west of the 60 kilometre sign. He said he frequently drove his vehicle in that way, rather than using the brakes. He recalled that he had actually put his right-hand turn indicator on before he changed to second gear. He said that in checking his rear-view mirrors at that time, he looked in both an external and internal mirror and could see back to the crest of the hill. He said there was no motorcycle within his vision and, indeed, he did not see the plaintiff’s motorcycle until after the accident.
He was tested on that matter and his evidence was somewhat unclear. At p.127.38:
“Q...... Did you have a clear view in either or both of those mirrors back to the crest of the hill.
A.Yes.
Q...... Are you telling the court that when you looked in the mirrors at that time you didn’t see the motorcycle.
A.Not the first time, no.
Q...... Did you subsequently see the motorcycle.
A.No, I did not.
Q...... I am not sure I understand that. You told me that you didn’t see the motorcycle the first time, that implies to me that you did see it on another occasion.
A.The first time when I came over the hill, that’s when I first saw it and then after that I didn’t see it.
Q...... You had seen the motorcycle prior to the collision.
A.No, I couldn’t have.”
He was tested on his reduction of speed from the crest of the hill and he thought that he probably stayed at about 45 kilometres per hour until he changed down to second gear. He achieved that by taking his foot off the accelerator. He had a clear recollection, he said, of the clicking sound made when his indicator was working. He did not hear the sound of any approaching motorcycle.
He said that he actually checked in his rear vision mirrors as he was about to commence his turn into Acacia Street. It was his practice and he was confident he did it. It was put to him, at p.130:
“Q...... What I’m suggesting to you, this was one of those unfortunate occasions when you didn’t look in the rear view mirror even though you knew you should have.
A.I wouldn’t like to say that.
Q...... And that the motorcycle was on the road behind you to be seen and you didn’t see it.
A.I did not.”

It was put to him that he did not see the motorcycle because he did not look, but he disagreed with that. He also denied the suggestions that he had failed to use his right-hand turn indicator and that he had braked just before deviating to the right. He said he recalled quite clearly that he braked “on the point of impact” (p.132).

Cross-examination then returned to the question of any previous sighting of the motorcycle. At p.132:
“Q...... Is it your evidence that until you heard that bang at no time as you drove along Wireless Road East (sic) did you see the motorcycle ridden by Mr Wilson.
A.I don’t recall.”

Mr Maywald further went on to say that he had actually moved his vehicle closer to the centre line of the roadway prior to reaching the 60 kilometre speed sign, but he was asked again about checking in his rear vision mirror. At p.133:

“Q...... After you say you changed gears, put your indicator on and looked in the rear vision mirror near the 60 km sign, before you turned right into Acacia Avenue did you check your rear view mirrors again.
A.I can’t recall. I think I must have. I can’t recall.
Q...... I suggest that you didn’t.
A.I wouldn’t like to say that, no.”

Mr Maywald was tested about the operation of the indicators on his car and said that after the accident, the police came to the scene and tested his indicators. He sat in the car and activated them and they were clicking, but the police checked them. There was no other evidence led at trial as to the operation of those indicators, but I infer from the defendant’s evidence that the police who conducted the check did not discover any fault in their operation.
The defendant presented to me as a witness who made a genuine attempt to tell the truth, but, even so, I felt he unconsciously sought to reconstruct whilst giving his evidence. It seemed to me inherently unlikely that he could have achieved braking instantaneously with the point of impact and not before it. Likewise, it would seem very unlikely that he would have twice checked his rear vision mirrors and not seen the plaintiff’s motorcycle. On the agreed facts, the distance between the crest of the hill and the junction was 450 metres. On the plaintiff’s own account, he first checked in the rear vision mirrors at a point further than the speed sign, which was 50 to 60 metres west of the junction. He then had a clear view of the roadway behind him to the crest of the hill, a distance of something near 390 metres, and he did not see the plaintiff’s motorcycle. Plainly, on any understanding of the evidence, the plaintiff’s motorcycle must have been present in that stretch, but was simply not observed by the defendant. He then said that he checked again in both mirrors just prior to the junction and again did not see the plaintiff’s motorcycle. If that evidence is accepted, then that omission would seem to be inexplicable, as the motorcycle was either directly behind him or behind him to his right and, on either account, it ought to have been visible.
I think it inherently unlikely that the defendant could have twice missed seeing the plaintiff’s motorcycle and, given the uncertainty exhibited in the quoted extracts from his evidence about whether he saw the motorcycle before the collision, I have little doubt that he has, albeit innocently, reconstructed events as he thought they must have happened. There are other aspects of his evidence which I will deal with in due course.

Marisha Garrod

Marisha Garrod was the driver of a motor car which, at the time of the collision, was stationary and facing north in Acacia Street at its junction with Wireless Road West. She had travelled north along Acacia Street, intending to make a right-hand turn into Wireless Road West. She had then seen the defendant’s car coming down the hill to her left, but the roadway to her right had been clear. She said the defendant’s car was at that moment 50 to 60 metres away and at a point where the slope of the hill levelled off. She did not at that time see the plaintiff’s motorcycle, although, on all the evidence, there can be little doubt that it was then positioned somewhere between the crest of the hill and the defendant’s car. She said that, having seen the approach of the defendant’s car, she decided to wait for it to pass her before completing her turn.
The sequence of events she described was that, on arriving at the intersection, she first looked left and saw the defendant’s car only, then looked right and saw a clear roadway and then when she returned her gaze to the left, she saw that the defendant’s car was indicating a right-hand turn. She said that she then saw the plaintiff’s motorbike come over the hill, that it had not been in her vision when she had first looked. She thought that when she looked at the car a second time and saw its indicators operating, it was 40 to 50 metres from the junction and it was at that point, she said, that the plaintiff’s motorcycle came over the crest. She thought that on her second glimpse, the car had actually slowed down and she said it did not accelerate from that time until it commenced the turn. She did not see it appear to brake or change speed at all from that time.
Whilst still in-chief, she was asked, at p.104:
“Q...... When did you first become aware of the motorbike that was involved in the incident.
A.When I looked to my left the second time and it seemed to just appear there basically. It wasn’t there the first time I looked but when I looked back the second time it was almost halfway down the slope or down the hill.”

She was asked to estimate its speed when she first saw it and said she could not. She then sought to reconstruct its speed, whereupon proper objection was taken.

She said the defendant’s car came towards her close to the centre line of the roadway, before commencing its turn at a point when it had almost gone past the front of her car. She did not observe the defendant’s car brake abruptly at any time, but as it was making its turn, she saw the motorbike coming on and realised a collision was inevitable. She was not able to estimate the speed of the motorbike at that time, but again sought to reconstruct its speed on the basis of her observations. This was again objected to, but she commented (p.105):
“The only thing is that it appeared - when it was there, when I saw it, it just seemed to have come over very quickly. I don’t know whether it was speeding or not.”

She said that at the point of impact, the defendant’s car was basically turned towards Acacia Street and had almost completed that turn, albeit that it had not entered Acacia Street. Its right-hand turn indicator was operating.

As to the motorcycle, under cross-examination she said she could remember the motorcycle coming down the hill and “keeping going basically” (p.107). She did not observe whether it was accelerating, decelerating or maintaining a constant speed. She conceded it was possible that the motorcycle had been on the hill at the time she first looked to the left. She said that on the second occasion she looked to the left, the car was in the vicinity of the 60 kilometre sign, which on the agreed evidence was a distance of 50 to 60 metres away. She herself estimated that the car was then a distance of 40 to 50 metres away and she said that the sign was approximately 40 metres away. At that same time, she first saw the motorcycle halfway down the hill and in the middle of its carriageway.
She was challenged as to whether it might have been nearer to the centre of the roadway and became a little less sure of that. She had no recollection of whether she heard the sound of the motorcycle. She said that on her second glimpse of the car, it had obviously slowed down from what she regarded as a normal speed and was not going very fast. She then estimated that on that second glimpse, the motorcycle was probably 40 metres behind the car. She then suggested that it was 40 metres “at least” and then she said it was 30 to 40 metres and then “about 30” (p.111). She observed that the motorcycle was going quickly in relation to the speed of the car and, clearly, that observation is consistent with all the rest of the evidence.
She said the force of the impact appeared to change the direction of the car from pointing towards the other carriageway of Acacia Street to that of pointing towards her car. She then saw its front right-hand turn indicator working. She did not see the rear indicator at any time. She could not remember whether the motorcycle had moved out to the right as though attempting to overtake the car. She said that the car’s front right-hand turn indicator had been operating since the position of the 60 kilometres per hour sign, which she estimated was 40 metres distant.
She said she thought the motorcycle was travelling quickly because it approached the car quickly as the car slowed down. She was asked, at p.116:
“Q...... Is this the situation, that your impression of the speed is based essentially on the fact that the motorcycle was gaining on the slower vehicle at a fast rate.
A.No, I just thought that it came into my vision a lot quicker than I would have expected, put it that way.”

She was then asked to accept the possibility that the motorcycle had been on the roadway when she had first looked to her left, but she had not seen it, and she answered in this way (at p.116):

“A...... When I first saw the motorbike the second time I looked to my left I thought, where did that come from. Basically it appeared there. That’s why it seemed like it was going faster than normal.
Q.You were surprised to see it there.
A..... Basically, yes. Perhaps not surprised but not expecting it to be there.”

She was confident that the defendant’s car had not attempted to cut the corner and said it had turned to the right from its normal position on the roadway. As it approached her car or Acacia Street, it had come to the centre of the road to begin the right-hand turn. She realised a collision was inevitable just before the car commenced to make its turn.

Ultimately, she agreed that her estimation of distances was not good.
Ms Garrod was clearly an independent witness and, as with all the other witnesses in the case, I felt that she did her best to offer her recollection of the circumstances surrounding the accident. She plainly, albeit unconsciously, sought to reconstruct in estimating the speed of the motorcycle. Her every approach to that estimate appeared to be based on her failure to see it when she first looked to the left, her view of it when she next looked there and on the fact that it quickly closed the distance separating it from the defendant’s car. Her estimates of distances were clearly poor, as can be noted from the quoted extract, but she adhered to her view that the defendant had activated his right-hand turn indicator near the speed sign, a distance agreed by the parties at 50 to 60 metres short of the junction.

Her evidence as to the position of the motorcycle when she first observed it, changed in the course of her examination from coming over the crest of the hill to it being halfway down the hill, an appreciable distance. She considered the defendant’s car travelled some 10 metres between her first and second glimpse and in that time, the motorcycle had taken up a position which was variously 30 metres, 30 to 40 metres, or more than 40 metres behind the car. It is barely surprising that she was, on the basis of those observations, tempted to reconstruct its speed. It is equally obvious, however, that, on any account of the evidence, the plaintiff’s motorcycle was between the crest of the hill and the defendant’s car at the time Ms Garrod first looked to the left, but she failed to observe it. That does not necessarily imply any criticism of her observation, perhaps it was obscured by the car, but it does go some way towards explaining her evidence about being surprised by its sudden appearance.

DISCUSSION AND FINDINGS

That, then, completes a discussion of the evidence in the case. The resolution of the liability question has not been without its difficulties. As I have said, I have no reason to believe that any of the witnesses have sought to actively mislead the court or to substantially exaggerate. To say that a witness has reconstructed does not necessarily imply personal criticism. It is a natural thing to do, but it is important that I identify those parts of the evidence which are clearly based upon that process.
When all is said and done in this matter, the disputes on the evidence were relatively few; indeed, there was a remarkable amount of common ground:

(1)... It was not disputed that the defendant, from the time the plaintiff first saw his car descending the hill, was travelling at a slow speed, a speed of 40 to 45 kilometres per hour. He maintained this speed to a point close to the junction. The plaintiff did not know it, but I accept as a fact that that was due in part to the defendant taking his foot off the accelerator as he descended the hill and then putting his automatic car into second gear as he travelled from near the point of the speed sign to the junction.

As to the plaintiff’s speed, I find myself satisfied that there was nothing remarkable about it. On his evidence, the evidence of Wright and that of Jennings, he was travelling at about 60 kilometres per hour for most of the relevant journey.
The defendant apparently did not observe him or, certainly, make any observations about speed and cannot challenge that evidence.
For her part, Ms Garrod was not prepared to commit herself to any estimate of the plaintiff’s speed, other than to offer by way of reconstruction that she thought he was travelling quickly, and I have discussed and discounted her reasons for that. Given that the distance from the crest of the hill to the junction was 450 metres and that the defendant was some 50 to 60 metres short of the junction when he checked his rear view mirrors and began signalling, it is inconceivable that the plaintiff’s motorcycle was not at that moment between the defendant’s car and the crest of the hill. Put another way, it is most unlikely that the plaintiff could have travelled 450 metres in the time it took the defendant, beginning at 40 to 50 kilometres per hour and slowing, to travel 60 metres.
The evidence of the defendant and Garrod does not successfully challenge the plaintiff’s account of his speed and I accept that, save for a brief period when he decelerated and slowed on approaching the defendant’s car, he was otherwise travelling at about 60 kilometres per hour.
The plaintiff said that he did not see the defendant’s brake lights operating until it was too late and the witness Wright corroborated that. The witness Jennings did not consider he was in a position to see brake lights and, in any event, he was some considerable distance away and at an angle which likely made that difficult. Ms Garrod would not have seen them operating, anyway. None of that is surprising because, on the defendant’s own account, he approached at least to the junction under the power of his engine only, and not using brakes. On his account, he only applied his brakes when the collision occurred, whereas the plaintiff says it was just before. That much is in contention, but otherwise I am satisfied that his brakes were not operating until at least just prior to the collision.
As to the position of the plaintiff on the roadway at all relevant times, I am satisfied there is no issue to be determined. I accept his evidence that he placed himself to the right of centre behind the defendant’s vehicle and that he maintained that position until he began moving out to overtake, at a point some 50 metres west of the junction. That movement took his motorcycle across the centre line of the roadway and on to the westbound carriageway. Although Wright did not fix the point at which that movement occurred, he otherwise generally corroborated that pathway. The witness Jennings made no observation about it at all, but it was hardly surprising from his vantage point. Of course, the defendant saw nothing and was in no position to comment on any of this. The evidence of Garrod was, in some measure, potentially corroborative of the plaintiff’s account. Her failure to see the motorcycle when she first looked is perhaps explicable in terms of its being positioned behind the car such that her view was obscured. Further, she expressed surprise at its sudden appearance and that is consistent with it moving out to its right in the overtaking manoeuvre and therefore being in her line of vision when she next looked.
The position of the defendant’s car on the roadway at various times was not particularly contentious. On his account, when he came near the speed sign, he moved further over towards the centre of the roadway, but then maintained that position until he commenced his right-hand turn. Garrod did not observe that movement, but did see him come closer to the centre line as he prepared to turn. For his part, the plaintiff had the defendant travelling in the centre of his carriageway until the time he commenced the turn.
Given the surprising narrowness of that carriageway, any divergence to the right by the defendant’s car would seem to me to be barely perceptible, particularly given the position I have found the plaintiff to have been on the roadway at or about the time it was occurring, that is to say, he had moved towards and across the centre line.
It cannot be doubted that at, or immediately prior to, the time that the defendant commenced to make his turn, a collision became inevitable. With the exception of the defendant, who did not see the relevant events, all witnesses concluded that. Put another way, there can be no suggestion of an opportunity to avoid the collision, at least at that point.
Finally, the distances from the crest to the speed sign and from the speed sign to the junction and the roadway dimensions were either agreed or not otherwise disputed.
Those matters upon which I am required to make findings which are either contentious or unresolved are these:

(1)... Did the defendant look in his rear vision mirrors on the occasions he claimed he did, what should he have seen and what did he see?

Did the defendant’s brake lights operate at any relevant time prior to the collision?
Did the plaintiff extend his right hand outwards, signalling his intention to overtake, as he claimed he did?
Did the defendant activate his right-hand turn indicators so that the plaintiff was able to see them at any time prior to the defendant’s commencing his turn to the right?

The Defendant’s Lookout

I am satisfied on all the evidence that the defendant did look in his rear vision mirrors at or about the point of the speed sign and that he did not then see the plaintiff’s motorcycle. Having found that, I am nevertheless satisfied that the defendant should have seen the plaintiff’s motorcycle, that it was within his line of vision. As I have noted, at that point the defendant was about 60 metres short of the junction and the crest of the hill was some 450 metres away from the junction.
I thus find that when the defendant first looked in his rear vision mirrors, he failed to observe the presence of the plaintiff’s motorcycle on the roadway.
As to the defendant’s claim that he checked his rear vision mirrors a second time and just prior to making his right-hand turn, I found his evidence on that point to be unreliable, as, indeed, I found his evidence as to whether he saw the plaintiff’s motorcycle at all prior to the collision. As to that second check, the defendant said nothing about it in his examination-in-chief, but then seemed anxious to challenge the proposition put to him that he had not checked again before making his turn. His evidence on it appeared to be based upon what he said was his usual practice, but I am satisfied that this part of his evidence was unconscious reconstruction on his part and that he did not, in fact, check in his rear vision mirrors before commencing his turn.
Whilst it would appear that he failed to see the plaintiff’s motorcycle the first time he checked, had he checked a second time, the chances of his failing to see the motorcycle again (as he claimed) seem to me to be somewhat more remote. By that time, it was very close to the rear of his car and it was out to the right in the other carriageway. The defendant was careful to explain how he habitually checked both internal and external rear view mirrors, and I consider it very unlikely that, had such a check been undertaken, he would not have seen the plaintiff’s motorcycle. Alternatively, if he did check and yet failed to see the motorcycle, it would be apparent that his lookout was defective.
All this evidence is further clouded by the unsatisfactory responses given by the defendant to questions about whether he had seen the motorcycle prior to the accident. At first, he claimed he had, but he seemed to recant that and then he was uncertain. I did not think he sought to mislead, but it suggested to me that his recollection of events was flawed and that he unconsciously reconstructed.

Brake Lights

I am satisfied that the defendant did, indeed, apply his brakes at a point close to the intersection and before he commenced his right-hand turn.
On his own evidence, he had been travelling at 40 to 45 kilometres per hour, but, by the time he made his turn, he was travelling at 5 to 10 kilometres per hour, because of the spoon drain at the junction. He had achieved that reduction by engaging second gear in his car and also releasing the accelerator. He said he applied the brakes instantaneously at the point of impact. Contrary to that evidence, is the evidence of the plaintiff and Wright that the brake lights came into operation just before the impact and the observation of the witness Jennings that he saw the car stop suddenly and begin to turn the corner.
I am not persuaded that the defendant was, indeed, turning the corner quickly, as Jennings said he observed, but in all the circumstances, it is inherently unlikely that the defendant actually slowed his car from as much as 45 kilometres per hour to 5 or 10 kilometres per hour before the junction without using his brakes at all. It is equally unlikely that he was able to apply his brakes the minute the collision occurred, as he claimed.
The more likely explanation, and I so find, is that as the defendant came to the junction, albeit travelling slowly then, he applied his brakes in order to slow his speed on turning so that he could accommodate the spoon drain at the Acacia Street edge.
Inherent in that finding is that the plaintiff did, indeed, observe the activation of the defendant’s brake lights at a time when it was obviously too late for him to take any evasive action.

The Plaintiff’s Extended Arm

The weight of evidence is against the plaintiff’s claim that he extended his arm prior to diverging to the right in order to overtake the defendant. His passenger Wright did not observe it, nor did Jennings or Garrod, and in all the circumstances I find that he did not give such a signal. I do not consider that that finding substantially damages his credibility and it seems to me likely that he, too, has unconsciously reconstructed events.

Right-Hand Turn Indicator

I find that it is likely the defendant did, indeed, activate his right-hand turn indicator as he claimed, but perhaps not quite at the time he said he did. On his account, it was just before he got to the speed sign, but according to Garrod, it was at about that point. I am satisfied that it was at about that point. I am further satisfied that both his front and rear right-hand turn indicators were operational at that time. It is not surprising that his signal would not have been observed from Mr Jennings’ vantage point, but the critical question in the matter is why it was not seen by the plaintiff and Wright, who were behind him.
It is that consideration which, I consider, provides a key to an understanding of the likely chain of events which led to this collision. On the plaintiff’s evidence, he commenced to diverge in order to pass the defendant’s vehicle at a point 50 metres west of the junction. The agreed distance of the speed sign was 50 to 60 metres west of the junction, so it was at about the point where the plaintiff activated his indicator.
I find that the likely sequence of events was that, at the time the plaintiff began diverging to the right to overtake, the defendant’s right-hand turn indicator was not operating, but that it likely came into operation immediately the plaintiff moved across into the westbound carriageway. On the evidence, all of this was occurring at about the same point on the roadway and I find that the sequence was such that the indicators did not begin operating until after the plaintiff had left a point directly behind the defendant’s car.
I am further satisfied, and find, that at and from the moment the indicators began operating, they might have been seen by the plaintiff, who was still positioned to the rear, albeit also to the side, of the defendant’s vehicle, but that they were not. It is probable that the plaintiff was concentrating on his overtaking manoeuvre at that point and, having not previously observed any signal from the car, had concluded it was safe to proceed with his move. That is a likely reason, but, of course, not an excuse, for his failure to observe the indicator, which I am satisfied remained operating, albeit slightly ahead of him and to his left, until the collision. That scenario is also consistent with the evidence of Garrod, who first saw both the plaintiff’s motorcycle (which was then, as I have found, in a passing position) and the defendant’s indicator operating, when she secondly looked to her left.
No doubt it was as much the effect of the defendant’s slowing and braking as the appearance of his brake light, which alerted the plaintiff to the defendant’s intentions just prior to the impact, but by then it was too late.
Those, then, are my factual findings on the relevant issues and I should now consider what flows from them.
I start from the proposition that there is a heavy onus upon any person engaged in overtaking another vehicle, to not only ensure the roadway ahead is clear and the manoeuvre is otherwise safe, but also to gain a proper appreciation of the likely progress of the vehicle being overtaken, and in most cases to take steps to warn it, if possible. Such steps will include the activation of indicator lights, re‑positioning of the vehicle, perhaps in certain circumstances the use of headlights, and/or the sounding of a warning device. Contraindications for an overtaking manoeuvre will include the presence of other vehicles on the roadway ahead, whether travelling in the same direction or not, road markings warning of the risk of overtaking, inadequate view of the roadway ahead, the width of the road and the presence on or near it of pedestrians, children, animals or, indeed, intersecting or connecting roadways. The onus on the overtaking driver does not cease once the overtaking manoeuvre has commenced and, clearly, he must keep the progress and behaviour of the slower vehicle under review.
I do not suggest those factors as being exhaustive, but they are some of the matters which a prudent driver should bring into account, some of which are relevant to the determination of this matter.
For its part, the vehicle intending to make a right-hand turn in a roadway must clearly position itself in a proper way to do that, that is to say, near to the centre of the roadway, signal its intention at a reasonable distance from the turn and then slow. At the same time, it will have regard to the presence of any oncoming traffic, the access to the roadway into which it is turning and, as well, to the risk of embarrassment or danger to any following or overtaking vehicles. This latter onus was not perhaps always seen as important, but, at least since Stoeckel v Harpas (1971) 1 SASR 172, the obligations of defensive driving have assumed much greater importance in examining the reasonableness of a driver’s conduct. An awareness of, and consideration for, following or overtaking vehicles is part of prudent defensive driving.
In this case, the conduct of the plaintiff can be criticised in the following respects:

(1)... He had observed that the defendant’s vehicle was travelling slowly ahead of him and he was, or should have been, alerted to the possibility of it changing direction. He was alive to the presence of the junction ahead of both of them and, curiously, he acknowledged in his evidence that he did not overtake the car immediately as he was waiting to see what would happen (p.42). He was thus alerted at an early stage to the possibility that the car might do something other than travel directly ahead at a normal speed.

His lookout was defective in these respects:
(a).... he failed at any time to observe the presence of Ms Garrod’s vehicle at the junction ahead. Even though her intention was actually to turn to the right, had he seen the car, he might have been alerted to the possibility that she was in fact going to turn to the left, or even turn to the right quickly, thus potentially causing him some embarrassment;
(b)I am further satisfied that he failed to keep a proper lookout in that, as I have observed, he failed to see the defendant activate his right‑hand turn indicator after he (the plaintiff) had diverged to the other carriageway. I find that he remained under a continuing duty to watch the behaviour of the defendant’s car as he overtook and that he should have seen the indicators operating soon after they commenced. Had he done so, I find it is likely he would have avoided the collision.
His failures outlined above were exacerbated by his awareness that ahead of him was the Acacia Street junction and he ought to have been especially alert to the risk of overtaking at about that point.
It is tempting to criticise the plaintiff for (as I have found) not giving a signal of his intention to pass. His motorcycle had no illuminated indicators, but I find he did not extend his hand, in any event. In the particular circumstances, however, I am unable to find this neglect on his part to have been causative: the defendant looked to his rear at least once, and, on his own account, twice, yet he saw nothing. It is also tempting to suggest that the plaintiff ought to have sounded his horn before overtaking, but that matter was not raised in evidence and it might be said, anyway, that the failure of the defendant to even hear the noise of the motorcycle so as to be aware of its presence (a noise which attracted the attention of Jennings from his distance away), makes it doubtful that the sounding of a horn would have been effective in warning the defendant.
On the defendant’s part, I have already been critical of his lookout. He obviously failed to see the plaintiff on the first occasion he looked, at a point some 50 metres west of the junction, and he did not check again to his rear before commencing a right-hand turn. Had he done so, I am satisfied that in the circumstances of having a clear roadway ahead of him, he might successfully have aborted the turn and avoided the collision. His counsel urged me to take account of his particularly good driving record and I have done so, but in the context of his evidence, I am satisfied that his driving, in these respects, was found wanting.

I am thus satisfied that both parties contributed to the occurrence of the collision and the real question is as to their respective rates of contribution.
I find that the plaintiff, as the overtaking vehicle and the party with a superior view and appreciation of what he was about to do, faced the heavier onus or duty of care and, clearly, he failed to properly discharge it. I consider an appropriate apportionment of responsibility is that the plaintiff bear 70 per cent of the responsibility and the defendant 30 per cent.
My order at this stage of the proceedings is therefore that the plaintiff recover against the defendant 30 per cent of his damages to be assessed.
I will hear the parties as to the further progress of this trial.

[2000] SADC 84

12 July 2000