Deegan and Deegan v Vines

[1995] QCA 13

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 137 of 1994

Brisbane
[Vines v. Deegan]

BETWEEN

JAMES RAYMOND VINES

(Plaintiff) Respondent

AND

FRANCIS C. DEEGAN

(First Defendant) First Appellant

AND

HAZEL JEAN DEEGAN

(Second Defendant) Second Appellant

Macrossan C.J. McPherson J.A. Lee J.

Judgment delivered 15/02/95

Joint reasons for judgment by McPherson J.A. and Lee J.

Separate dissenting reasons by Macrossan C.J.

APPEAL ALLOWED WITH COSTS, AND THE AMOUNT OF THE JUDGMENT
VARIED BY REDUCING IT TO $48,057.57.

CATCHWORDS CONTRIBUTORY NEGLIGENCE - Motor vehicle accident - Personal Injury - Duty of care to traffic approaching from behind - Duty of driver to drive at safe speed and keep proper lookout - Braund v. Henning (1988) 7 M.U.R. 97.

Counsel:	P. Munro for the appellants Grant-Taylor for the respondent
Solicitors:	McInnes Wilson & Jensen for the appellants Smith & Stanton for the respondent

Hearing Date: 11 November 1994

IN THE COURT OF APPEAL	[1995] QCA 013
SUPREME COURT OF QUEENSLAND	Appeal No. 137 of 1994
Brisbane
[Vines v. Deegan & Anor]
Before: Chief Justice

McPherson JA

Lee J

BETWEEN:

JAMES RAYMOND VINES

(Plaintiff) Respondent

AND:

FRANCIS C DEEGAN

(First Defendant) First Appellant

AND:

HAZEL JEAN DEEGAN

(Second Defendant) Second Appellant

JUDGMENT OF THE CHIEF JUSTICE

Judgment delivered 15/02/1995

I have had the advantage of reading the reasons of
McPherson JA and Lee J where the circumstances relevant to
this appeal are fully canvassed.

In my view, certain critical conclusions of the Trial Judge are supported by the facts.

The second appellant was in this case not necessarily blameworthy in choosing one exit rather than another that was available further to the west where her view of traffic approaching from the west would have been better. Still that very choice imposed an obligation on her to drive her vehicle in a manner particularly responsive to the situation which thus prevailed. Aware that traffic could be expected to approach from her right along Robinson Road and also that it would, due to the intervening crest, have a severely limited opportunity to observe her exiting manoeuvre and the consequent position of her vehicle upon the roadway, she should, after choosing a safe moment to exit, have accelerated briskly with due consideration for any approaching traffic that might come suddenly upon her over the crest and she should, as well, have kept some view behind in her rear vision mirror and otherwise kept her vehicle to the left as far as was possible. The effect of the Trial Judge's findings is that the second appellant did not do these things but, in practical terms, having emerged from the driveway proceeded slowly and moved to occupy a position on the roadway towards the middle rather than to the left of her traffic lane. Her lack of consideration for the presence of the respondent who happened to be approaching from the other side of the crest when she exited, justified the finding of negligence against her.

The respondent, for his part, made the mistake of glancing towards his speedometer at what turned out to be a critical moment and this delayed his first sighting of the second appellant and introduced a further dimension to the emergency which may well have induced him to veer left on observing the second appellant's car being driven progressively towards the middle of the traffic lane ahead of him. The respondent's actions justified the finding of negligence against him.

However, bearing in mind the particular obligation which lay upon the second appellant when she chose to exit at a point which imported particular hazards to traffic travelling east on Robinson Road and with a consciousness that courts will always feel reluctance to interfere in assessments on which apportionments are based, I would, with respect, for my part conclude that interference in this case is not justified. I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 137 of 1994

Brisbane

Before Macrossan C.J. McPherson J.A. Lee J.

[Vines v. Deegan]

BETWEEN

JAMES RAYMOND VINES

(Plaintiff) Respondent

AND

FRANCIS C. DEEGAN

(First Defendant) First Appellant

AND

HAZEL JEAN DEEGAN

(Second Defendant) Second Appellant

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & LEE J.

Judgment delivered the 15th day of February 1994

This is an appeal from a judgment given in an action in the District Court for damages for personal injuries arising out of a collision between the respondent plaintiff's motor cycle and a car driven by the defendant second appellant. The motor cycle collided with the rear right hand corner of the car.

On 15 February 1992, which was a Saturday, the second appellant parked a car belonging to the first appellant (who is her husband) in the car park at the rear of the Aspley Village Shopping Centre in Brisbane. Access to and from the shopping centre complex is provided by two entry and exit points on to Robinson Road (the eastern and western exits).

Robinson Road is a two-way suburban road, which runs in an
east-west direction, with the shopping centre to its north.
Although Robinson Road is generally undulating there is a

noticeable crest ("the crest") some 40 metres to the west of the eastern exit from the shopping centre. Driver vision to the west is limited by the crest. A driver who uses that exit as a means of entering Robinson Road has the crest to his or her right, and to the left an area in front of the shops where vehicles may be parked "nose in". Travelling along Robinson Road in the direction of the shopping centre, the western exit is situated before reaching the crest and so provides clear views along Robinson Road further to the west. It is a feature of the case that both the respondent and the second appellant were well acquainted with the area and with the traffic conditions that tended to prevail there.

At approximately 1.05 p.m. the second appellant left the eastern exit and commenced moving in an easterly direction along Robinson Road. After she had travelled no more than about 10 metres the incident which is the subject of this appeal took place in which the respondent's motor cycle collided with the rear of the second appellant's car in Robinson Road. The Queensland Transport Accident Report (ex. 16) contains the second appellant's statement of what happened at that moment:

"I was coming out of the shopping centre. I looked down Robinson Road and didn't see anything so I pulled out. I was headed up the hill when I heard a crash and felt the impact on the right hand side of the car. I looked in the mirror and couldn't see anything. I slowed up the hill and looking back I saw the man on the road. I stopped and walked back."

The respondent to the appeal had, shortly before, left the home of his sister and brother-in-law in Robinson Road and set off riding his motor cycle along that road also in an easterly direction. He testified that when he reached the crest, he was travelling at 62 k.p.h. His evidence was that at the top of the crest he glanced down at the speedometer, and then looked up and saw a motor vehicle ahead of him proceeding eastwards at a slow pace. He said the motor vehicle was about 30 feet in front of him when he first saw it. His memory of events immediately before the collision was imprecise, but he said he attempted to take evasive action but struck the right rear corner of the motor vehicle. He was thrown from the motor cycle and sustained serious injuries principally to his legs.

In the District Court at Brisbane the trial judge apportioned responsibility between the appellants and the respondent as to two thirds against the appellants and as to one third against the respondent. In their notice of appeal the appellants challenged the whole of the judgment given below, or alternatively the trial judge's apportionment of liability. On appeal, counsel for the appellants submitted that there was either no negligence on the part of the second appellant or alternatively that the apportionment of liability did not reflect the relative culpability of the parties in the accident. It was argued that the apportionment was manifestly in conflict with the objective evidence and with the trial judge's own findings.

In holding that the second appellant was negligent the learned trial judge found that, as the driver of a vehicle entering on to a road, the second appellant was required by the Traffic Regulations to give way to any vehicle on the road with which hers might collide. Having said that, his Honour went on -"Insofar as that regulation gave priority of passage to the motor vehicle and insofar as, because of the presence of the crest, Mrs Deegan could never have presumed that another motor vehicle was more than about 40 metres away to her right, there was, I consider, a clear obligation on Mrs Deegan not only to move onto the carriageway and to proceed with maximum expedition in order not to present as an obstacle to any oncoming vehicle but also to keep a lookout to her rear in order that she might become aware of the presence of a following vehicle which had come over the crest and could react to its presence. I have come to the firm conclusion that, by moving onto the carriageway slowly, by taking up a position in or about the middle of her lane, by progressing at a slow speed and by failing to keep a watch to her rear so as properly to inject her vehicle into any traffic flow, Mrs Deegan was guilty of such a want of care for her fellow road- users as to amount to negligence causing the collision between the plaintiff's motor cycle and her vehicle."

On appeal the respondent disavowed any reliance on the relevant Traffic Regulation, which had not been invited in the Court below. Instead, the respondent emphasised two matters which it was said demonstrated a want of reasonable care on the part of the second appellant. The first was that the appellant had not used the alternative western exit from the complex. It was submitted that in using the eastern exit there was a foreseeable risk of an accident when the range of vision there was limited to only about 40 metres in a westerly direction toward the crest of the hill, whereas the alternative exit afforded a clear field of vision back along Robinson Road. The second particular of the negligence relied on was the second appellant's failure on entering Robinson Road to accelerate away from the point of entry at an appropriately fast speed. It is not disputed that at the moment of collision the appellant's vehicle had already completed her manoeuvre and was moving slowly ahead along Robinson Road on her correct side of the road. The argument nevertheless is that, as a regular user of the particular exit, the appellant should have been aware of the speeds at which traffic came over the crest of the hill, and so should have accelerated away from that danger point at an appropriate speed.

The learned trial judge was not persuaded that the second appellant's action in entering the road from the eastern exist from the shopping centre resulted in what he called "an automatic finding of negligence" against her. By implication, he seems to have found that her failure to use the western exit did not amount to negligence on her part. We are not disposed to interfere with the findings to that effect. The underlying fault may ultimately lie with the form of town planning permission in permitting entry on to the road at that point; but in the circumstances it cannot be said that, once such access was afforded to a driver using the car park, it was negligent of the second appellant to use it as a means of access to the road.

Although not without some misgivings, we have also concluded that the finding of negligence made against the second appellant cannot readily be disturbed. The driver of a motor vehicle owes a duty of care to traffic approaching from behind, which is to ensure that his or her conduct will not take that following traffic by surprise. The second appellant should, as the trial judge accepted in this case, have realised that any following traffic coming over the crest, even if travelling at about the permitted speed limit, could be placed in a position of some danger by coming upon her suddenly. In the circumstances, his Honour found that the second appellant should have been paid attention to the possibility of traffic approaching from her rear. He found that as she moved off she should have commenced to pick up speed faster than she did. He also found that the second appellant took up a position in the middle of the eastbound lane, instead of keeping her vehicle closer to the left hand side of the road.

While it is true that the second appellant did not keep a proper lookout to the rear of her vehicle, it is not clear that, had she done so, it would have had much, if any, influence on the events that followed. Nor is it by any means self-evident that she was wrong in positioning her vehicle in the middle of the lane. As regards her "take- off" speed, it must be said that her ability to accelerate swiftly was somewhat cramped or limited by the presence to her left of vehicles parked "nose-in" facing the shopping centre, and by the presence about 50 metres ahead of her of a pedestrian crossing, on which the evidence suggests there might perhaps have been a pedestrian at or shortly before she entered Robinson Road.

Nevertheless, if these three factors are considered in conjunction, it was probably open to the trial judge to conclude that there was some degree of contributory negligence on the part of the appellant, although at a much lower level than he was prepared to find. It is well settled that an apportionment of contributory negligence at trial will seldom be disturbed on appeal. The process involves discretionary elements with which an appellant tribunal is traditionally, and rightly, reluctant to interfere. However, in the present case, the trial judge's erroneous reliance on the Traffic Regulation is a matter which exposes his finding and apportionment to reconsideration by this Court. Moreover, the circumstances here are such as to suggest a substantial degree of negligence on the part of the respondent himself.

The fundamental duty of every driver of a vehicle is to drive at a safe speed and to keep a proper lookout. In the case of a following vehicle the duty is to travel at such a speed and at such a distance behind the vehicle ahead as in the circumstances to enable the driver of that following vehicle to pull up or take other evasive action in the case of an emergency. As recently as 1988 the duty of doing so was recognised by the High Court in Braund v. Henning (1988) 7 M.V.R. 97. While emphasising the limited value of earlier decisions in the circumstances of particular cases, their Honours accepted that:

"the driver of a following vehicle which collides with the vehicle which is ahead of it is usually held primarily liable for the consequences of the collision ..."

However, the court in that case went on to decide that the driver of a utility, who slowed to turn right across the highway but gave no other indication of intention to do so, was 60% to blame for the loss sustained by a following motorcyclist who collided with the rear of the utility through failing to keep a proper lookout. In doing so, the High Court varied a decision of the Full Court of Queensland, which had found there was no negligence on the part of the driver of the utility, as compared to the finding of the trial judge, who had found the collision was due solely to his negligence. The variety of decisions at various levels in that litigation may be thought to serve as a reminder of the wisdom of keeping a tight rein on appeals of this kind.

In the present case the respondent was evidently not aware, as he approached the crest, of the imminent presence of a vehicle ahead of him on the road in the vicinity of the shopping centre. He was nevertheless under a duty to anticipate that possibility. That was particularly so, given that he knew the area and so was aware of the existence on the other side of the crest of the shopping centre, of the eastern exit from it, and of the pedestrian crossing. He was or ought reasonably to have been aware, as he approached the crest, of the possible need to pull up suddenly in an emergency. In cross-examination the respondent admitted that he knew that Robinson Road in that locality was "pretty bad", and that his brother-in-law, who lived nearby, had "nearly had a couple of accidents just pulling out of his driveway". His Honour found that at 60 k.p.h. the respondent was travelling too fast to cope with any foreseeable need to stop or slow down because of some event that was beyond his view, adding that, in approaching the crest from the other side, it was reasonably foreseeable to the respondent at the time that there might be traffic moving away from or pulling into the parking area in front of the shopping centre. In fact, the respondent seems to have diverted his attention momentarily to his speedometer at a critical instant in his approach to the shopping centre.

Given those conclusions, it is difficult to see that the apportionment arrived at in this case of two thirds to the second appellant and only one third to the respondent fairly reflects their relative shares of the responsibility for the collision and the ensuing damage. It is a compelling inference that, even assuming some degree of fault on the part of the second appellant in failing to move off smartly, the collision might have been averted, or at least rendered much less likely or less serious, had the respondent slackened his speed of travel as he approached the crest, and maintained a proper lookout ahead for the presence of vehicles from a source which he knew presented a potential hazard in the direction of his travel.

Allowing some weight, as we think we should, to the trial judge's impression of the witnesses and events, we nevertheless conclude that an appropriate outcome in this case would have been to apportion responsibility as to two thirds to the respondent and one third to the second appellant. After allowing, as he did, for a reduction in the damages by one third to reflect the view he took of the respondent's responsibility, the learned trial judge gave judgment for $96,098.28. There is no appeal against the quantum of damages awarded. On the view we now take of the matter, the judgment should be further reduced to $48,057.57.

The appeal should be allowed with costs, and the amount of the judgment varied by reducing it to $48,057.57