Devon Contractors Pty Ltd v Hore - [1988] TASSC 82

Serial No B14/1988

List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Devon Contractors Pty Ltd v Hore [1988] TASSC 82; B14/1988

PARTIES:  DEVON CONTRACTORS PTY LTD
  v
  HORE, Terence William

FILE NO/S:  831/1987
DELIVERED ON:  18 April 1988
JUDGMENT OF:  Underwood J

Judgment Number: B14/1988
Number of paragraphs: 10

Serial No B14/1988

List "B"

File No 831/1987

DEVON CONTRACTORS PTY LTD v TERENCE WILLIAM HORE

REASONS FOR JUDGMENT UNDERWOOD J

18 April 1988

This is a claim and counter claim for property damage caused by a motor vehicle accident. The quantum of both claims is agreed.

In the late afternoon of the 3 March 1987, the plaintiff's Ford Falcon was being driven south by its manager (for convenience, hereafter referred to as the plaintiff) on the Paloona Road towards the Paloona Dam. At the same time, the defendant was driving his Holden panel van in the opposite direction. The two vehicles collided on the plaintiff's incorrect side of the road near the entrance to the dam site and power station where the bitumen road surface has been widened to provide a parking area.

Travelling south, the Paloona Road is a straight uphill run towards the dam. Just before the parking area, it flattens out and bends, first to the left and then to the right, before curving uphill again in the direction of Lower Barrington. The uphill side of the road is flanked by a rock cutting. The brow of the hill is just about on the left hand bend.

I accept the evidence of the police officer who attended the scene that a south bound driver is unable to see the road beyond the brow and around the left hand bend until he is 20 metres from the apex of the bend. This distance is somewhat longer if the south bound vehicle approaches the corner on the incorrect side of the road. The bend and the fall of the road also restrict the view for a north bound driver. Initially, this view is confined to the top of an approaching vehicle but increases as such vehicle mounts the brow of the hill and enters the bend.

The plaintiff's case is that he came up the straight at about 90 kilometres per hour and went into the left hand bend on his correct side of the road. As soon as he could see around the bend he observed the defendant's vehicle in front of him on its incorrect side of the road. Unable to get through, he slammed on the brakes and turned to his right and headed for the parking area. At the same time, the defendant's vehicle came back onto its correct side of the road and the two vehicles collided very close to the left hand edge of the defendant's correct side of the road.

The defendant's case is that he first saw the roof of the plaintiff's car as it approached the brow of the hill and the bend. He said it was then on…

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 Devon Contractors Pty Ltd v Hore

Details

AGLC: Devon Contractors Pty Ltd v Hore [1988] TASSC 82
Case: [1988] TASSC 82
Decision Date: 18 April 1988

CaseChat Overview and Summary

Devon Contractors Pty Ltd sought damages for property damage caused by a motor vehicle accident against Terence William Hore. The parties agreed on the quantum of both the claim and the counterclaim. The collision occurred on the Paloona Road near the Paloona Dam, with the plaintiff driving a Ford Falcon and the defendant driving a Holden panel van. The plaintiff was travelling south while the defendant was heading north. The plaintiff's vehicle collided with the defendant's vehicle, which was on the incorrect side of the road. Both parties gave conflicting accounts of the events leading up to the collision.

The court was required to determine which party's account of the events was more credible, and whether either party was negligent. The court had to consider the objective evidence, including the skid marks made by the plaintiff's vehicle and the police officer's observations of the scene. The court also had to consider the credibility of the parties' admissions and statements made at the scene of the accident.

The court found the plaintiff's account to be more credible, based on the objective evidence and the defendant's admission that he had lost concentration and control of his vehicle on the previous bend. The court found that the defendant was negligent in failing to keep to his correct side of the road, and that such failure was causative of the accident. The court found that there was no evidence that the plaintiff failed to do anything that a prudent driver would have done in the circumstances to avoid the collision. Therefore, judgment was entered in favour of the plaintiff for the agreed sum of $11,251.30, and the counterclaim was dismissed.

The court's final orders were that the defendant pay the plaintiff the sum of $11,251.30, together with interest at the rate of 8% per annum from the date of the accident until the date of judgment. The defendant's counterclaim was dismissed with costs.

Orders