Barwick, Kim v Bennett, Peter Ray - [1998] TASSC 165

165/1998

PARTIES:  BARWICK, Kim
  v
  BENNETT, Peter Ray

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  189/1996
DELIVERED:  23 December 1998
HEARING DATE/S:  9, 10 December 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Torts - Negligence - Miscellaneous defences - Inevitable accident - Defendant claimed oil on road cause of accident - Onus of proof on plaintiff to establish breach of duty.

The Marpesia (1872) LR 4 PC 212; Cook v Nash (1958) QSR 1 not followed.
Pearce v Pignitter and Adams 51/1963 noted [1963] Tas SR N15 discussed.
Antoniou v Kitsen (1972) 2 SASR 525 followed.
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 applied.
Aust Dig Torts [72]

REPRESENTATION:

Counsel:
             Plaintiff:  C H Hobbs
             Defendant:  K B Procter
Solicitors:
             Plaintiff:  C H Hobbs
             Defendant:  Murdoch Clarke

Judgment category classification:
Court Computer Code:
Judgment ID Number:  165/1998
Number of pages:  5

Serial No 165/1998
File No 189/1996

KIM BARWICK v PETER RAY BENNETT

REASONS FOR JUDGMENT UNDERWOOD J

23 December 1998

The plaintiff was injured in a motor car accident on 22 July 1995. He has brought an action for damages against the driver of the other car involved in the accident. By virtue of a pre-trial order, the only issue presently for determination is whether the defendant was negligent, it being admitted that the plaintiff suffered injury in the accident.
Just before 7am on 22 July 1995, the plaintiff was driving his car north along the Brooker Highway. He was on his way to work at his butcher's shop in Glenorchy. It was a dark, wet, winter morning. Cars had their lights on and street lights were lit. It had been raining for some time prior to the accident. At the time of the accident and afterwards, there were intermittent periods of drizzle and rain.
The plaintiff was driving at a moderate speed in the outside north bound lane. Traffic was light. He passed under the half clover leaf connecting the highway to the Domain and the Tasman Bridge. He negotiated the gentle left hand curve and was about to enter the straight that leads to the traffic light controlled intersection with Risdon Road. At about this point, the concrete wall that divides the north bound lanes from the south bound lanes comes to an end. According to the uncontradicted evidence of the plaintiff, at the end of this concrete wall there is a short length of guard rail which continues the division between the north bound lanes from the south bound lanes. Thereafter to the intersection with Risdon Road, those lanes are divided only by a narrow raised pavement.
There was no dispute about the primary facts surrounding the accident. At the same time as the plaintiff was travelling north on the highway, the defendant was driving his red Holden Monaro coupe south along the outside lane of the Brooker Highway. He, too, was on his way to work. The defendant had travelled from his uncle's home in Moonah and driven along the Risdon…

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.

Continue reading Barwick, Kim v Bennett, Peter Ray

Details

AGLC: Barwick, Kim v Bennett, Peter Ray [1998] TASSC 165
Case: [1998] TASSC 165
Decision Date: 23 December 1998

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the plaintiff, Kim Barwick, sued the defendant, Peter Ray Bennett, for damages following a motor vehicle accident on the Brooker Highway on 22 July 1995. The only issue before the court was whether the defendant was negligent, as it was conceded that the plaintiff suffered injury in the accident. The accident occurred just before 7am on a dark, wet winter morning, with cars driving with their lights on and street lights lit. The plaintiff was driving north in the outside lane while the defendant was driving south in the outside lane. The plaintiff was about to enter a straight that leads to the traffic light controlled intersection with Risdon Road when the defendant lost control of his car and collided with the plaintiff's car.

The legal issue was whether the defendant was negligent in causing the accident. The defendant claimed that the accident was an inevitable result of oil on the road surface, which he did not know about and was not warned of. The court considered the evidence of two engineers and two police officers who attended the scene of the accident. The police officers found some oily substance on the road surface, but it was not visible when the torch was shone at an angle. The substance was slippery, and it was likely that it was dropped from a vehicle travelling in the south bound outside lane. However, there was no evidence of when the oil was deposited on the road surface, and it was equally likely that it was deposited before or after the accident.

The defendant's evidence was found to be unreliable, as it was inconsistent with the evidence of the engineer who prepared a plan of the accident scene. The defendant claimed that he lost control of his car while accelerating and overtaking a slower moving white vehicle in front of him. However, his evidence was inconsistent with the distance that his vehicle travelled after he lost control, even assuming that there were some pools of oily substance on the southbound lane. The defendant's evidence that he was travelling at about 70 kilometres per hour when he lost control was rejected, as it was inconsistent with the distance that his vehicle travelled after he lost control. The evidence of the police officers satisfied the court that any speed in excess of 70 kilometres per hour presented the risk of a vehicle going out of control, even assuming that there was no oily substance on the surface of the road. The defendant was in breach of the duty of care he owed the plaintiff by travelling at an excessive speed in all the circumstances.

There will be judgment for the plaintiff for damages to be assessed.

Orders