A G & a J Shield Pty Ltd v Ley & Motor Accident Insurance Board

[1992] TASSC 96

COURT:                 SUPREME COURT OF TASMANIA

CITATION:A G & A J Shield Pty Ltd v Ley & Motor Accident Insurance Board [1992] TASSC  96; B17/1992

PARTIES:  A G & A J SHIELD PTY LTD
  v
  LEY & MOTOR ACCIDENT INSURANCE BOARD

FILE NO/S:  297/1987
DELIVERED ON:  15 May 1992
JUDGMENT OF:  Green CJ

Judgment Number:  B17/1992
Number of paragraphs:  9

Serial No B17/1992

List "B"

File No 297/1987

AG & AJ SHIELD PTY LTD v LEY & MOTOR ACCIDENT INSURANCE BOARD

REASONS FOR JUDGMENT  GREEN CJ

15 May 1992

Negligence – country road – both motor vehicles approaching corner on right hand side.

1. The plaintiff claims damages for damage caused to its motor truck in a collision with a motor vehicle driven by the defendant. The defendant counterclaims for damages for personal injuries. The Motor Accidents Insurance Board has been joined as a defendant to the counterclaim. All damages have been agreed.

1. There was little conflict in the evidence although, partly because the defendant has no memory of the collision, it was incomplete. I make the following primary findings.

1. During the afternoon on 22 September 1986 Mr Brian Coulson was driving the plaintiff's motor truck on the North Huon Road (referred to in the pleadings as the North Glen Road) from Judbury towards Ranelagh at a speed of about 40 kmph As he approached what was for him a left hand bend the truck was straddling the centre of the road. After glancing in his rear vision mirrors to check the safety of his load Mr Coulson saw a motor vehicle driven by the defendant approaching in the opposite direction. Mr Coulson estimated that the motor vehicle was then about 50 – 100 metres away and travelling at about the same speed as his truck. The motor vehicle travelled towards its right hand side of the road and Mr Coulson formed the impression that the brakes of the motor vehicle were being applied. Mr Coulson steered his truck towards the left hand side of the road. The motor vehicle straightened up and Mr Coulson thought it was going to pass. Suddenly the motor vehicle veered again to its right and collided with the right hand corner of the truck. At the time of the collision the truck was stationery, its left hand front wheel was in the table drain on the left of the road and its left hand rear wheels were on the left hand gravel verge. The road was a sealed country road which was just wide enough to allow two motor trucks of the same dimensions as the plaintiff's truck to pass each other.

1. In making my findings I am not greatly assisted by the evidence given by Mr Cohen who arrived at the scene of the accident shortly after it had occurred. Mr Cohen saw skid marks extending from the back wheels of the truck to the right hand side of the road beyond the skid marks shown in photographs before me. However Mr Cohen's evidence was not such as to enable me to make a finding as to how long those skid marks were. I was properly not invited to infer from the skid marks that Mr Coulson's estimate of the speed of his truck was wrong. The only significant inferences I could draw from Mr Cohen's evidence is that the truck was a little further on the right hand side of the road than Mr Coulson thought it was and that Mr Coulson applied the brakes of his truck whilst the truck was to some extent over the centre of the road.

1. The collision occurred when the defendant's motor vehicle travelled onto her right hand side of the road and struck the plaintiff's truck whilst it was stationary and as far to the left hand side of the road as it could be. Taken by themselves those findings would prima facie lead to a conclusion that the collision was caused by the defendant's negligence in not keeping a proper lookout or causing her motor vehicle to go out of control because of the way she steered the motor vehicle or applied the brakes and that Mr Coulson was not negligent. However counsel for the defendant submits that I should find that as she negotiated the corner the defendant was suddenly confronted with the plaintiff's large truck travelling towards her on her side of the road, heavily applied the brakes and as a result lost control of her car so that it skidded into the truck. Counsel submits that upon those findings I should find that Mr Coulson's negligence was the sole cause of the collision.

1. In my view, and I do not understand counsel for the defendant to be submitting otherwise, the mere act of driving on the right hand side of the road as Mr Coulson approached the corner was not of itself negligent. It would only amount to negligence if the configuration of the corner was such and Mr Coulson drove the truck on the right hand side when it was so close to the corner that he ought to have foreseen that there was a risk that the driver of an oncoming motor vehicle might be suddenly confronted with the truck when the two vehicles were in such close proximity that the driver of the oncoming motor vehicle might react in such a way that the motor vehicle might go out of control.

1. I accept that one conclusion which could be drawn from the findings I have made is that upon seeing the plaintiff's truck the defendant applied her brakes heavily causing the motor vehicle to skid or otherwise go out of control so that it collided with the truck. However upon the evidence before me I very much doubt whether I could conclude that it is more probable than not that that is the correct hypothesis. But even if that finding is the correct finding for the following reasons I am not satisfied that it has been shown that the defendant's reaction was caused by Mr Coulson's negligence.

1As the evidence is not such as to enable me to make a precise finding as to the point at which the truck returned to its left hand side of the road I am unable to find how close the truck was to the corner when it was on the right hand side of the road.

2I have insufficient evidence of the line of sight around or across the corner to enable me to find when Mr Coulson and the defendant would have first been able to see each other as they approached the corner.

3The evidence is not such as to justify a finding that Mr Coulson's view of the defendant's motor vehicle was significantly better than the defendant's view of the truck. It follows that if Mr Coulson and the defendant were both keeping a reasonable look–out they should have first seen each other at about the same time. As Mr Coulson had time to appreciate the situation, react, steer the truck right off the road and stop before the collision occurred I find it difficult to see how I would be justified in finding that the defendant's precipitate action was reasonable or forseeable.

4Mr Coulson's estimates of speed and the distance between the defendant's motor vehicle and the truck when he first saw the motor vehicle were not seriously contested and militate against any finding that the defendant was suddenly confronted with the truck.

1. I am satisfied that the defendant was negligent. I am not satisfied that Mr Coulson was negligent.

1. There will be judgment for the plaintiff for $13,685.00. The counterclaim is dismissed.