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

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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 its incorrect side of the road, so he began to slow down. He then saw the plaintiff move to his correct side of the road and then back towards his incorrect side of the road braking heavily until the point of impact. The defendant said that although the plaintiff's car moved from its incorrect side to its correct side and back again, its direction of travel was a continuous straight line which he presumed was taken to "cut the corners". The defendant, anticipating a collision, continued to slow and had almost stopped when the two cars collided. The only eye witnesses were the plaintiff and the defendant.

1. I prefer the evidence of the plaintiff to the evidence of the defendant. From the defendant's cross–examination, I am satisfied that a substantial amount, if not all, of his evidence was based upon a reconstruction effected when he revisited the scene and took measurements some considerable time later. The defendant denied making a damaging admission at the scene but agreed that otherwise, the plaintiff's evidence detailing the conversation between the two of them was accurate. The plaintiff's account is consistent with the objective evidence as noted by the police officer whose evidence I accept.

1. The skid marks made by the plaintiff's Falcon started on the brow of the hill, just 10 or 12 inches out from the inside edge of the plaintiff's correct side of the road and extended for 20 metres in a straight line across the road to the point of impact which was marked by oil and debris. From this, I conclude that, as soon as the plaintiff could see around the bend, he became aware of an emergency situation and immediately went to apply his brakes. At the time the wheels locked, his vehicle was wholly on its correct side. The plaintiff's account is more in accord with these conclusions than the defendant's account of his vehicle gradually slowing on its correct side of the road. I find that, when the plaintiff came around the bend, the defendant's vehicle was on its incorrect side of the road and this caused the plaintiff to brake heavily and swing to his right. I reject the defendant's evidence that he first saw the top part of the plaintiff's Falcon and it was then on its incorrect side of the road approaching the brow of the hill. At the time the defendant was a stranger to the area and conceded that as he did not then know the lay of the road after it disappeared from his sight over the brow of the hill, his claim that the plaintiff was first seen by him on the incorrect side of the road must be a piece of reconstruction. I find that the plaintiff's vehicle did not go onto his incorrect side of the road until after it commenced to skid.

1. In evidence there was no dispute that after the accident, the defendant came over to the plaintiff, introduced himself and offered his hand and that the plaintiff said, "Jesus Christ do you always go around introducing yourself like that?" Nor was it disputed that the defendant then said he was sorry. However, the defendant did dispute that he went on to admit that he had lost concentration and control of his vehicle on the previous bend. According to the defendant there was no conversation between them with respect to the cause of the accident; a circumstance I find unusual if the defendant's account is correct that an appalling piece of negligent driving by the plaintiff had caused what was thought to have been a serious injury to the defendant's wife, who was a passenger in his car. It was common ground that, whilst waiting at the hospital later in the day, the defendant discussed the prospect of employing the plaintiff to work on his property. I am quite satisfied that the admission was made by the defendant and that, in substance, it was true. That admission is consistent with the objective evidence and the plaintiff's evidence of the cause of the accident.

1. I find 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. There is no evidence that the plaintiff failed to do anything that a prudent driver would have done in the circumstances to avoid the collision. Accordingly, there will be judgment for the plaintiff on the claim for the agreed sum of $11,251.30. The counter claim will be dismissed.