A case study of a judge’s assessment of contributory negligence in a motor vehicle accident
On 29 June 2014 a motor cycle ridden by the claimant collided with a car driven by the defendant. The accident occurred on a lane in a semi-rural setting in NSW. Both vehicles were travelling south. The car was in the process of turning right into the driveway of a fruit stall. The motor cycle was in the process of overtaking the car.
The claimant sued the defendant, claiming compensation for the injuries he sustained in the accident. The defendant disputed that he was negligent, and in the alternative alleged that the plaintiff was guilty of contributory negligence.
The claimant gave evidence that as the Mercedes approached a road on their left, it had a left blinker on and it slowed down. At that point the claimant proceeded to overtake all three vehicles – the other motor cycle, the utility and the Mercedes. As the claimant was so overtaking, the Mercedes, instead of turning left as was indicated, turned right into a fruit stall. The claimant hit the rear quarter panel of the Mercedes and flew up the road, somersaulting and eventually landing on his feet. He was injured and could not stand up. An ambulance came and took him to Westmead Hospital. He there had surgery for some fractures.
The cousin (the other rider) saw the Mercedes start to turn right but did not see any indicator light on the vehicle. His attention was drawn to the car by it turning right across his path. He managed to stop without colliding with the Mercedes. He stopped just at the driveway entry to the fruit stall.
The driver of the utility told the police that the left-hand indicator of the Mercedes was on as it approached the road on the left.
The defendant (the driver of the Mercedes) said that as he approached the road on the left, he decided to go straight through to the fruit stall a bit further down the road. He thought that the stall was about 50-100 metres further on.
He said he signalled, checked in his side mirror and proceeded to turn. As he was about to complete the turn into the driveway he heard a massive thud at the back of the car. He proceeded slowly further into the yard of the fruit stall. He got out of the car and saw two people on the road and a motor cycle. He could not recall how far before he started to turn that he put his right indicator on. He said that he was going reasonably slowly because he was looking for the driveway.
The judge’s findings on liability (negligence)
The judge made the following findings of fact:
- On 29 June 2014 a line of four motor vehicles was proceeding south on the lane. The first car in the line was a Mercedes sedan driven by the defendant, in which the defendant’s wife was a passenger. The second car in the line was a utility. The third vehicle was a motorcycle ridden by the cousin and the fourth and last vehicle was a motor cycle ridden by the plaintiff, who had a pillion passenger.
- As the vehicles neared the intersection with the lane on the left, the defendant put on his indicator to indicate a left turn into that lane.
- The Mercedes did not turn left. The Mercedes did not move or pull to the left side of the road, but continued straight ahead in a southerly direction.
- At some point while the left-hand indicator on the Mercedes was showing, the cousin started to overtake the utility and the Mercedes on his motor cycle.
- The plaintiff also pulled out to overtake, and rode behind his cousin in the northbound lane.
- Shortly prior to the Mercedes arriving at a driveway into a fruit stall on the right-hand side of the road (the western side) the defendant put on his right-hand indicator.
- The Mercedes was by this stage driving slowly, and the utility slowed down behind the Mercedes with no apparent difficulty.
- The cousin braked his motorcycle hard. The plaintiff did not brake at all.
- The Mercedes made a right-hand turn at a slow pace into the fruit stall. As it was half way through the turn the motor cycle ridden by the plaintiff approached at high speed and the front of the cycle collided with the right-hand rear side of the Mercedes.
- The utility pulled up on the left-hand (eastern) side of the road almost adjacent to the point of impact.
- The cousin pulled up his motor cycle and by the time he got level with the point of impact he was almost stopped.
- While the cousin slowed and almost stopped his motor cycle and thus avoided a collision, the plaintiff in effect overtook the cousin (on his left) and proceeded down the northbound lane at about 70kph.
The defendant was negligent
The judge found that that the failure of the defendant to give an adequate right-hand turn signal was a necessary condition of the occurrence of the harm and negligent.
Was there any contributory negligence on behalf of the claimant?
The judge found there was finding that for whatever reason, the other rider could brake heavily and bring his motor cycle almost to a halt just prior to the point of impact. He must have been keeping a proper lookout, and while he had a shorter distance than the plaintiff to avoid the collision, he managed to do so. He would have had a better view than the plaintiff, who was behind him, but he must have had sufficient warning that the right hand turn was going to occur, most probably by seeing the right hand indicator, to stop his overtaking manoeuvre in time.
By contrast, the claimant did not take any steps to avoid the collision, which means one of two things. Firstly, he either did not see the right-hand indicator or if he did he ignored it.
Secondly, the other rider was braking heavily right in front of his motor cycle, and this alone should have warned him that he should have dramatically reduced his speed.
Instead, the claimant approached the point of impact without any discernible decrease in his speed. The plaintiff gave no evidence that he braked at all before the impact. Nor did anyone else give that evidence.
The Judge found the plaintiff was negligent, in that a reasonable person, being given those two sources of a warning about the right-hand turn being made, would have reduced speed and stopped.
The apportionment of liability
The judge found that the defendant was the party primarily responsible for this accident, as by his driving he placed the claimant in an emergency situation when he was overtaking in the northbound lane.
My finding on contributory negligence is that the claimant is 25% to blame for the accident, therefore there will be a reduction of 25% in the compensation awarded to the plaintiff.
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