…torts – negligence – right-hand turn across oncoming vehicle – evidence plaintiff’s vehicle entered intersection at, or very close to, point where traffic light changed from orange to red – contributory negligence
The plaintiff was a 19-year-old provisional licence holder driving a blue Toyota Starlet Hatch.
He drove his vehicle into an intersection after, or around the time, the lights changed from orange to red. It was not contested that he entered the intersection ‘late’. The plaintiff was travelling straight through the intersection approximately one car length behind a white vehicle that safely proceeded through the intersection before him.
The defendant was driving a 6.4 tonne Iveco prime mover. He was travelling in the opposite direction with the intention of turning right across the lane that the plaintiff was travelling.
The defendant was stationary in the centre of the intersection, waiting for a gap in the traffic. The white vehicle passed through the intersection and, following this, the defendant proceeded across the intersection into the path of the plaintiff’s vehicle, causing the collision.
The defendant stated in his police statement shortly following the accident that he had a clear view of the plaintiff’s car, but thought the car was going to stop.
The plaintiff suffered serious physical injuries, including a traumatic brain injury. He had no recollection of the accident.
- the defendant breached his duty of care to the plaintiff
- the plaintiff was guilty of contributory negligence apportioned at 50%
- damages and funds management in the sum of $1,977,406, reduced to $988,703.
The principal issues for the court’s determination were whether the defendant breached his duty of care and, if so, the extent to which the plaintiff was guilty of contributory negligence.
In relation to breach of duty of care, His Honour held that the proper focus was not on whether the plaintiff entered the intersection late, but on the defendant’s conduct in the circumstances he was faced with, which included his perception of the plaintiff’s vehicle. His Honour held that the defendant saw the plaintiff’s vehicle before it entered the intersection.
It was noted that, given the height of his vehicle, the defendant had an unrestricted view and was, or should have been, aware of the plaintiff’s vehicle and the possibility that it might proceed through the intersection. Also, given the position of the plaintiff’s blue vehicle in relation to the white vehicle, and that the plaintiff was making no obvious signs that he was preparing to stop, the risk of injury from attempting the turn was both foreseeable and not insignificant.
The road rules require the defendant to only make the right turn in circumstances where he could safely do so. To safely turn right, he must satisfy himself that he would not collide with vehicles travelling straight through the intersection. His Honour held that, even if the plaintiff acted unreasonably in attempting to proceed through the intersection, this did not justify the defendant completing the right turn without satisfying himself, rather than assuming, that he could safely do so.
Accordingly, it was held that the defendant breached his duty by failing to keep a proper lookout when attempting to turn his truck.
Contributory negligence was apportioned at 50% after taking into consideration the conduct of each party and the comparative size of the vehicles. The plaintiff faced a significantly greater risk of harm relative to the driver of a prime mover, and therefore the defendant’s causal contribution was higher than the plaintiffs.
There was little dispute on quantum.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Beth Rolton, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.