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

1. 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%.

1. 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.

1. 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."

1. It is well settled that on an appellate review of an inference drawn from undisputed facts, that the appellate court is in as good a position as the lower court to decide the proper inference to be drawn. In doing so it will give respect and weight to the finding of the court below, but if a contrary conclusion is reached, that conclusion must prevail. See Warren v Coombes (1978–1979) 142 CLR 531 and the decision of Wright J in this Court of Hampton  v Smith 181988.

1. Naturally, both counsel referred to Burns v Lipman (1975) 132 CLR 157, for the facts of that case bear a striking similarity to the facts of this case. However, Burns v Lipman is only authority for the now trite proposition that findings of negligence depend upon the facts of each case. Further, it can be noted that the decision in that case to allow the appeal proceeded from the conclusion that there was no view contrary to that adopted by the trial judge which could be reached by an appellate court with sufficient certainty to warrant interfering with the decision made at first instance. This approach was taken in cases such as Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192, and Whiteley Muir and Zwanenberg Limited v Kerr (1965–66) 39 ALJR 505, but has now been firmly rejected by Warren v Coombes (supra).

1. Not unexpectedly, counsel for the respondent was able to refer to a number of cases reported in the Motor Vehicle Report series in which a court had held that failure to sound the horn before overtaking was negligence. Equally expectedly, she was able to refer to a similar number in which the court had held that such a failure was not negligence.

1. Without being critical in any way of counsel in this particular case, I cannot help observing that the value of reporting such cases appears questionable, especially if it promotes their use as authorities for propositions of law.

1. This accident occurred in daylight on a straight section of road. The speed of the respondent's vehicle just before the accident, and that of the vehicle in front, was not so slow that a prudent driver would assume it most likely that the respondent would pull out and overtake; that was a reasonable possibility however. The appellant remained behind the respondent for four or five seconds to see if that possibility was going to become a reality. It did not, nor was there any indication that it was likely to. During that four to five seconds 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.

1. Having regard to the volume of traffic, the nature of the road and the time of day, it could not be said that the appellant's failure to warn the respondent that he was about to overtake was negligence. After the pause behind the respondent's vehicle for four or five seconds, 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.

1. In these circumstances and for those reasons the appeal is allowed, the judgment of the learned commissioner set aside and in lieu thereof there will be judgment for the plaintiff against the defendant for damages to be assessed.