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 Road to its junction with the highway.  There he stopped to wait for the red light to turn green.  When it did so, the defendant made a right turn onto the Brooker Highway and travelled south in the middle of three lanes.  He came up behind a slower vehicle and moved to his right to change into the outside lane, accelerating as he did so.  Not long after commencing to pull out, the defendant lost control of his car.  The rear end moved to one side of the direction of travel.  The defendant attempted to correct this by easing off the accelerator and by steering in the opposite direction.  However, the rear of the vehicle then swung in the opposite direction and the defendant was unable to regain control.  The defendant's vehicle swung right around and, while still sliding, crossed the dividing footpath and onto the north bound outside lane, directly in front of the plaintiff.  The plaintiff was unable to take evasive action and the front of his car hit the left hand rear of the defendant's car.  Both cars were then in the outside north bound lane. 

Had the evidence stopped at this point, a finding of negligence against the defendant would have been inevitable.  In Nominal Defendant v Haslbauer (1967) 117 CLR 448, Barwick CJ said at 452:

"An inference of [the defendant's] negligence may be drawn where, in the ordinary course of human affairs, such an occurrence is unlikely without want of care on the part of a person in the situation of the defendant."

In Richley (Henderson) v Faull [1965] 1 WLR 1454, it was held that when a car moves across on to its incorrect side of the road and collides with an oncoming vehicle, an inference of negligence can be drawn, such inference not being dispelled upon proof of no more than that the defendant's car skidded. Similarly, in Piening v Wanless, also reported in 117 CLR at 498, it was held in a case where a vehicle swerved off the road and overturned, that the clear inference of negligence on the part of the driver is not displaced by proof of no more than that the accident was due to a failure of the steering mechanism.

The defendant accepts the foregoing as correct, but by his defence, par 8 pleads:

"The Defendant says that the collision referred to in the Statement of Claim was an inevitable accident resulting from him losing control of the vehicle he was driving by reason of the presence on the roadway of pools of oil the presence of which the Defendant knew not, and of which he was given no warning."

After the accident, the defendant, who escaped unscathed, assisted the plaintiff until the ambulance arrived.  He believed that he had been negligent.  He accepted responsibility for the accident and made arrangements to borrow the money to pay for the damage done to the plaintiff's car.  However, just as he was about to hand the money over, one of the police officers who attended the scene of the accident spoke to him.  This officer told the defendant that he saw oil on the road surface of the lane way in which the defendant had been driving and it was his belief that the oil had been the cause of the accident.  Thereupon, the defendant denied liability to pay any damages and this action was subsequently commenced.

At the trial, evidence was given by two engineers, one called for the defendant and one called for the plaintiff.  Both gave evidence about the effect of oil on the road surface.  However, before turning to any opinions expressed by the engineers, it is necessary to examine carefully the evidence concerning the presence of oil on the road.  Neither the plaintiff nor the defendant saw any sign of oil on the outside south bound lane of the Brooker Highway.  The only evidence concerning the presence of oil on the road surface was given by Constables Pyke and Hossack.

On the day of the accident, these police officers were stationed at the Hobart Uniform Section of Tasmania Police.  They were due to start work at 7am that morning and were waiting in the muster room when a call came through that there had been a serious accident on the Brooker Highway.  Constables Pyke and Hossack were directed to attend.  They immediately left the muster room, took the lift to the basement and got in a car.  Constable Hossack drove the car out from under the building and turned left onto Argyle Street.  He turned left at the next intersection, drove for two blocks and then turned right onto the Brooker Highway.  Constable Pyke said that the road was wet and slippery.  On arrival at the scene, the police officers saw that an ambulance had already arrived, as had Sergeant McDonald from the Accident Investigation Squad. 

Sergeant McDonald was travelling to work when he heard about the accident on his radio and as it sounded as if people had been seriously injured, he changed direction and went directly to the scene.  On finding that the defendant was uninjured and that the plaintiff then appeared not to have been seriously injured, he did not investigate the cause of the accident.  However, he did stay to lend a general hand to the other officers who arrived shortly thereafter.  Sergeant McDonald said he saw no oil on the road surface, but he made no inspection of the scene of the accident.

Constables Pyke and Hossack said that it was still very dark when they arrived and that rain was falling intermittently.  I find that not less than something in the order of ten minutes elapsed between the occurrence of the accident and the arrival of Constables Pyke and Hossack.  I find that during that time both south bound lanes were open to traffic, but both north bound lanes were blocked by the damaged vehicles.

Constable Pyke said that a police car from Glenorchy attended the scene of the accident and he believed that it was there when he and Constable Hossack arrived.  Constable Pyke said that he believed that the Glenorchy car was then stationary in the north bound lanes.

Constable Pyke said that the north bound traffic held up by the accident was building up and it was necessary to get it moving.  In order to do this, the Glenorchy unit crossed to the outside south bound lane (the one in which the defendant had been travelling) some distance to the north of the accident scene and parked there to prevent north bound traffic using that lane.  I find that this was done something in the order of fifteen - twenty minutes or so after the accident.  Constables Pyke and Hossack then directed the blocked north bound traffic over the dividing pavement into the south bound lane, around the accident and back on to the correct side of the road.  Eventually another police car blocked the north bound traffic above the clover leaf and directed all of it over the highway and around to the intersection with Risdon Road via Cornelian Bay. 

Constables Pyke and Hossack said that they were using torches they had borrowed from Sergeant McDonald to assist them to direct the traffic.  Constable Pyke said that whilst he was doing this he noticed oil on the surface of the road and Constable Hossack said that Constable Pyke directed his attention to it.  Constable Pyke said:

"It was actually why [sic ? while] we were directing traffic.  We were standing on the median strip when I shone the torch down and identified that there were pools of oil in the right lane and the distance between these pools did vary, with the larger pools anything up to 3 to 4 metres but in between there were intermittent smaller pools of oil that would have been only around a foot in diameter."

Constable Pyke added that the oil was not visible when the torch was shone at an angle to the road surface, but that "the rainbow patterns that is [sic] consistent with oil mixing with water became visible when the torch was shone directly down on to the road".

Constable Hossack, who had been a fuel tanker driver for 7½ years, bent down and gathered some of the material on his fingers to see how thick it was.  He said it was not thick and gave off no odour of either petrol or diesel.  He said that the mixture he picked up off the road surface was slippery.

By the time the police left the scene over an hour later, the rain had so dispersed the oil that it was not considered by them to be a traffic hazard.  Constable Pyke walked about 100 metres down the south bound outside lane towards the Risdon Road intersection and noticed that the spreading pools he had observed continued for the whole of that distance and probably further.  Constable Hossack noticed the same thing when he traversed the same lane for a short distance south of the accident scene.

I accept the evidence of the two police officers and find that some oily substance had been deposited on the south bound outside lane of the Brooker Highway.  I am unable to make a finding with respect to the exact nature of this oily substance, but do find, in accordance with Constable Hossack's evidence, that it was slippery.  Having regard to the distribution of the substance, I infer that it was dropped from a vehicle travelling in the south bound outside lane.  I am unable to make any finding with respect to the quantity of the material dropped, but do find that immediately after its deposit on the road surface, it floated to the top of the water on the road, thinned and spread out with the rain that was falling intermittently to the extent that it presented no hazard to traffic by the time the two constables left the scene of the accident.

The problem is that there is no evidence of when the oil was deposited on the road surface.  Given the dispersing effect of the rain, I find that it was deposited at some time during a period commencing about half an hour or so before the accident and ending about fifteen to twenty minutes thereafter, when the lane was closed to traffic by the Glenorchy police car.  ("The critical period.")

There was no evidence of the volume of south bound traffic during the critical period.  A traffic counter stationed on the south bound lanes approximately 300 metres south of the point where the defendant crossed the dividing pavement, counted 241 vehicles passing south along the Brooker Highway between 6am and 7am on the day of the accident.  However, although it may be inferred that the higher percentage of these vehicles travelled south towards the end of the measured period, the counter tells no more than it was quite likely that a number of vehicles travelled in the south bound outside lane during the critical period.  In these circumstances, I am unable to find that there was oil on the south bound lane prior to the accident.  The state of the evidence is such that it is equally likely that it was deposited before the accident, as it is that it was deposited after the accident.

The defendant's evidence was to the effect that he started to accelerate and move out to overtake the slower moving white vehicle in front of him when he was about 100 metres past the Risdon Road intersection.  The defendant said that he believed he was then in second gear.  According to a plan drawn by Mr England, the engineer called on behalf of the defendant, this was some 200 metres back from the accident scene.  The defendant said to Mr Hobbs in cross-examination that it was "a little way up the road ¾ it was not long" after he started to pull out to overtake the white car that he lost control.  The defendant said that at the time he lost control of his car, he was "accelerating through the gears" and thought that he was probably then in third gear, although he denied accelerating heavily.  The defendant said that he believed his car had started to aquaplane on the wet surface because of its extra wide tyres.  The defendant denied travelling at an excessive speed.  In his report to the Motor Accidents Insurance Board, he estimated his speed at the relevant time to have been 70 - 80 kilometres per hour, slightly in excess of the estimate he gave in evidence.

I find that the defendant's evidence is unreliable.  He instructed Mr England that after first losing control of his car, he regained it for a short time and then lost control again.  However, his evidence was quite clear that at no stage did he regain control of his car after he first lost it.  Further, the defendant said nothing to Mr England about the presence of a white car in the lane in front of him, nor of him overtaking this white car.  Mr England said that in order to be instructed for this case, he and the defendant visited the scene of the accident and measured the relevant features.  Mr England said that the defendant pointed out where certain events had occurred.  Mr England's plan of these features depicts the defendant's car going out of control at a point 191 metres south of the Risdon Road intersection and 100 metres from the point of the accident.  This is at variance with the defendant's evidence given at trial, even after making due allowance for the difficulty of making estimates of distance.  The variance is accounted for by Mr England's understanding that for about 100 metres the defendant had regained control of his car.  However, in his evidence, the defendant said that from the moment he lost control of his car, he never regained it.  According to the defendant's evidence, this means that his car moved sideways and out of control over a distance of something in the order of 150 metres or more and then mounted the dividing pavement with sufficient force to spin it almost completely around.  In cross-examination the defendant estimated the distance he travelled whilst out of control to have been in the order of 50 to 75 metres but I reject that evidence.  It accords with Mr England's plan which shows that for about 100 metres after commencing to change lanes, and after a moment's loss of control, the defendant was in control of his vehicle before losing it again.  The defendant's evidence that he was out of control for a distance of about 50 to 75 metres is completely inconsistent with his other evidence.

For the defendant, Mr Procter urged that the plaintiff had to establish more probably than not that the oil was not on the road surface before the accident, but I reject that submission.  The onus is on the plaintiff to establish more probably than not that the defendant was in breach of one or more of the particularised duties of care that he admittedly owed the plaintiff.  The onus falls to be discharged upon the facts that are established by the evidence. 

It has been said that when a defendant pleads inevitable accident, there is an obligation upon the defendant to show what was the cause of the accident and that the result of the cause was inevitable, or alternatively the defendant must show all possible causes and with regard to each, much show that the result could not have been avoided.  See The Marpesia (1872) LR 4 PC 212; Cook v Nash (1958) QSR 1 at 4 - 6; The Merchant Prince (1892) P 179 at 189. This approach was adopted by Neasey J in this Court in Pearce v Pignitter and Adams 51/1963 noted [1963] Tas SR N15 at 187.  Although at 4 of the unreported decision, Neasey J said:

"A pleading of inevitable accident makes no difference to the ultimate burden of proof, and simply appears to mean that the defendant takes up a positive attitude with regard to the cause of the accident and his own conduct, rather than the tactically inferior one of merely denying negligence."

Doubt about the applicability of the principle stated by The Merchant Prince and Cook v Nash was expressed by Bray CJ in Antoniou v Kitsen (1972) 2 SASR 525. As his Honour pointed out at 528, the dicta in The Merchant Prince, if applied to cases such as the present one, seems to run contrary to decisions of the High Court such as Mummery v Irvings Pty Ltd (1956) 96 CLR 99 and The Nominal Defendant v Haslbauer (supra). See also a critical note in (1958) ALJ 164.

Were this a case of res ipsa loquitur and the only evidence the unexplained presence of the defendant's vehicle on the incorrect side of the road, the possibility that oil may have been present on the roadway prior to the accident may prevent an inference being drawn that otherwise would have been drawn from proof of no more than the presence of the defendant's car on the incorrect side of the road.  However, this is not a res ipsa loquitur case.  Constable Pyke said that the surface of the Brooker Highway was such that as they were travelling to the scene of the accident, the police car began to slip on the wet surface.  He said at that time they were travelling at about 80 kilometres per hour.  He said that accordingly, the police car slowed to travel at a speed that was between 70 and 80 kilometres per hour, as anything in excess of that speed was considered unsafe in the wet conditions.  The defendant's evidence that he was travelling at about 70 kilometres per hour when he lost control is rejected.  It is 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 evidence of the police officers satisfied me that having regard to the weather conditions, 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.  Any such speed would be a breach of the duty of care that a driver owed to other users of the road.  Even assuming that there had been some pools of oil on the surface of the road over which the defendant was travelling when he lost control, as described by the police officers, had he been travelling at a speed in the order of 70 kilometres per hour or a little less, he would not have careered out of control over a distance of something in the order of 150 metres and crossed the dividing pavement to end up in front of the plaintiff's northbound car.  I find that 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.