Callander v Pearson - [1989] TASSC 134

Serial No B56/1989
List “B”

COURT: SUPREME COURT OF TASMANIA

CITATION: Callander v Pearson [1989] TASSC 134; B56/1989

PARTIES:  CALLENDER, Gerald Paul
  v
  PEARSON, Nicholas David

FILE NO:  LCA 8/1989
DELIVERED ON:  30 November 1989
JUDGMENT OF:  Underwood J

Judgment Number: B56/1989
Number of paragraphs: 10

Serial No B56/1989
File No LCA 8/1989

GERALD PAUL CALLANDER v NICHOLAS DAVID PEARSON

REASONS FOR JUDGMENT UNDERWOOD J

(DELIVERED ORALLY) 30 November 1989

This is an appeal against a judgment of a Commissioner of the Court of Requests. The single ground of appeal is that the learned commissioner erred in finding that a reasonably prudent driver in the appellant's circumstances would have sounded his horn before commencing to overtake the respondent. The learned commissioner found that the appellant's failure to sound his horn was negligence which contributed to his injuries and accordingly, reduced his damages by 25%.

No attack was made on the finding of primary facts made by the learned commissioner. They are, that on the day of the accident, the appellant was driving his car west along the Bass Highway. Shortly after passing through Westbury, the appellant came up behind two cars which were also travelling west. As the road in front was clear, the appellant decided to overtake. He remained behind the respondent's vehicle, which was immediately in front of him, for four or five seconds to ensure that he did not pull out to overtake the vehicle in front of him. The respondent gave no indication and made no signal of an intention to overtake, so the appellant pulled over to his incorrect side of the road and commenced to pass the respondent's vehicle. When the front of the appellant's vehicle was approximately next to the respondent's driver's door, the respondent pulled out to overtake the first vehicle. There was no contact between the two vehicles, but the respondent's clear breach of his duty of care forced the appellant to leave the road and his vehicle was damaged.

With respect to the issue of contributory negligence, the learned commissioner said:

"I find contribution on the part of the appellant and his failure, after considering the situation to be one such where he ought to give the defendant time to indicate his intentions. I find that he was guilty of contributory negligence in failing to go further and sound his horn so as to make his intention to overtake perfectly clear. After all, he was facing a situation where the defendant was following a slow moving vehicle in front of it and there was ample room for that vehicle to overtake. The fact that four or five seconds had been allowed for the defendant to indicate his intention I don't think, in the circumstances, expiates or expunges the plaintiff's duty to take the added precaution of sounding his horn and making the defendant fully aware of the fact that he intended to take advantage of the opportunity to overtake, not only the defendant, but the vehicle in front."

It is…

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 Callander v Pearson

Details

AGLC: Callander v Pearson [1989] TASSC 134
Case: [1989] TASSC 134
Decision Date: 30 November 1989

CaseChat Overview and Summary

In the case of Callander v Pearson, Gerald Paul Callander, the appellant, brought an appeal against the decision of a Commissioner of the Court of Requests, Nicholas David Pearson, the respondent. The appeal centred on the Commissioner's finding that the appellant was guilty of contributory negligence by failing to sound his horn before overtaking the respondent, and as a result, reducing his damages by 25%. The appeal was based on a single ground, namely, that the Commissioner erred in law by finding that the appellant should have sounded his horn before overtaking.

The legal issue before the court was whether the appellant's failure to sound his horn before overtaking the respondent constituted negligence, given the circumstances of the case. The Commissioner found that the appellant's failure to sound his horn was negligence, which contributed to his injuries. However, the appellant argued that the Commissioner erred in finding that he should have sounded his horn. The court was required to determine whether the Commissioner's finding was correct or whether the appellant's failure to sound his horn did not amount to negligence.

The court held that the appeal should be allowed, and the Commissioner's judgment set aside. The court found that the appellant's failure to sound his horn before overtaking the respondent did not amount to negligence. The court noted that the appellant had remained behind the respondent for four or five seconds to ensure that he did not pull out to overtake the vehicle in front of him. The court found that during that time, the appellant was plainly visible to the respondent had he chosen to look in his mirror, something it was reasonable for the appellant to assume the respondent would do before pulling out. The court held that there were no circumstances which should have alerted the appellant that there existed the risk against which it was reasonable for him to guard by sounding his horn, that the respondent would pull over when the two vehicles were side by side.

The court held that the Commissioner erred in finding that the appellant's failure to sound his horn before overtaking the respondent was negligence. The court held that the Commissioner's finding was not supported by the facts of the case. The court held that the appellant's failure to sound his horn did not amount to negligence, and as such, the Commissioner's finding of contributory negligence was incorrect. The court allowed the appeal, set aside the Commissioner's judgment, and in lieu thereof, there will be judgment for the plaintiff against the defendant for damages to be assessed.

Orders