Farrer v Tasmanian Petroleum Holdings Pty Ltd

[1987] TASSC 86

Serial No B16/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Farrer v Tasmanian Petroleum Holdings Pty Ltd [1987] TASSC 86; B16/1987

PARTIES:  FARRER
  v
  TASMANIAN PETROLEUM HOLDINGS PTY LTD
  ERIC WISE
  COMBINES GAS SERVICES PTY LTD

FILE NO/S:  LCA 135/1986
DELIVERED ON:  23 April 1987
JUDGMENT OF:  Nettlefold J

Judgment Number:  B16/1987
Number of paragraphs:  7

Serial No B16/1987
Lit "B"
File No LCA 135/1986

FARRER v TASMANIAN PETROLEUM HOLDINGS PTY LTD
ERIC WISE and COMBINED GAS SERVICES PTY LTD

REASONS FOR JUDGMENT  NETTLEFOLD J

23 April 1987

1. Notice of appeal against an order of a Commissioner of the Court of Requests whereby judgment was given for the defendant against the plaintiff in the sum of $565.00 together with costs to be taxed. The amended grounds of appeal read as follows:–

"1That the learned Commissioner erred in law in finding upon the facts as he found them that negligence as a question of law could not be inferred against the driver of the defendant's vehicle.

2That the learned Commissioner erred in law in finding upon the facts as he found them that as a question of law the plaintiff was negligent."

1. AT the conclusion of a short case which concerned a collision between two vehicles at a roundabout his Honour said:–

"Yes, well I'll give my decision now, although r find some difficulty in the case I think I should because it is a question of fact, a question of negligence of course, and it's appropriate that I should give it while the facts are fresh in your mind. The accident happened at the Russell Roundabout, I think it's proper that I should say that I know the general nature of the Russell Roundabout, on the Brooker Highway, as a driver, as I suppose most drivers around Hobart do know that particular roundabout. I can also say that entering a roundabout at any point is something with regard to which a driver has to exercise care, particularly in busy traffic as it often is busy of course along one of the main Highways in Hobart. This accident happened about 8.40am on the 23rd of November and I assume from what I have heard that there was a good deal of traffic in the area. There is of course no doubt as Mr Farrer admits the tanker driver, that he had the obligation to give way to traffic to his right as he entered the intersection and there's no doubt that the accident took place because a car coming from his right driven by the Plaintiff collided with his vehicle, his tanker, and one might say prima facie the responsibility for the accident lies with the Defendant. I mean prima facie in the sense that he obviously didn't give way to the vehicle which came from his right. However, he says in reply that he did take care that traffic did pull up on his right, he took advantage of a break in the traffic and entered the intersection and traffic did in fact, was giving way in the left hand lane which would have approached him but it came to a halt and I've heard a supporting witness Mr Barrett who says that he was in the line of traffic. He approached, he in fact paused so as to let the tanker into the intersection, and unfortunately there was a second lane of traffic along which the Plaintiff came and the collision occurred. It's not an uncommon situation perhaps in some ways for traffic or a pedestrian to appear to give way and then the view is obscured in another lane and unfortunately a collision occurs because the driver is deceived into thinking that all traffic is giving way to him. I think I should add that driving a tanker I can well imagine is a different proposition from driving an ordinary motor vehicle. In other words it takes some degree of care and it can't be manoeuvred as quickly as an ordinary motor vehicle. I think I could assume that. I think I can also assume that other drivers on a busy highway ought to be aware at a roundabout such as this that some, I think, extreme degree of care is needed so as to avoid exactly the kind of situation that arose. That is, that if traffic appears to be stopped in the left hand lane it behoves the driver in the right hand lane not to be too anxious to claim the, his[i] right of driving on and claim the, his right that other drivers coming from his left as it were and entering the intersection should give way to him.

One only has to look at roundabouts such as this to see that drivers exercising due caution negotiate a roundabout such as this at a slow speed and with care such that they can come to a quick stop if necessary.

I think it is clear that the Plaintiff was not doing this. He was proceeding at a speed such that he was prepared to claim his right of way, although I find he had earlier stopped, he had accelerated to such a speed that he thought he could negotiate the roundabout in an emergency, in the emergency which arose by accelerating and he almost succeeded in escaping the accident altogether. What happened of course is that neither the Defendant nor the Plaintiff saw each other until the last moment. The reason being, I think very probably, that the vehicle driven by Mr Barratt which was also a bigger vehicle than normal, a tanker, obscured the view of both of them. The one thing I find in Mr Wise's favour is that he had taken advantage of a break in the traffic and as best as he could, having regard to the fact that traffic had stopped to enable him to make the manoeuvre as best he could he was entering the round–about. In fact I find he'd crossed what was the equivalent of the left lane and was entering into the right lane which posed the emergency which was faced by Mr Farrer. Whether Mr Farrer actually drove onto the verge of the roundabout or not is not really the point. I think it is quite possible that he did having regard to the evidence of Mr Barratt, that he did his best to avoid the tanker in the circumstances, but didn't succeed as it happened so he may well have taken evasive action as well as trying to accelerate, something that perhaps he doesn't recall.

Having stated the facts in this way it's obvious that there is a good deal to be said on either side, that is the tanker driver can't wait there all day, he has to assume that when he has a break in the traffic, having regard to the size of his vehicle and manoeuvrability and the fact that people are stopping to let him go he can rely on people being cautious enough in lanes, driving in lanes where they haven't got a view, cautious enough to stop if necessary. That's really what driving in these conditions I think amounts to. One has to have regard to the realities. I think Mr Wise in the circumstance didn't act unreasonably. I think the fault really lies with the Plaintiff who assumed that he was able to claim his right of way without exercising due caution. I suppose part of the fault lies with the intersection itself, in that people entering the round–about T should say, not intersection, have to traverse across two lanes and the situation must frequently arise where traffic is not seen by drivers in the right lane and traffic coming down Derwent Park Road as it would happen to be. As I say I am familiar with roundabouts. I also happen to be familiar with the situation that accidents have occurred at precisely the same places for the same sorts of reason in the past, but in my view the fault that does exist lies with the Plaintiff. To put it another way I'm not at all satisfied the Plaintiff has proved negligence on the part of the Defendant. Accordingly I would dismiss the claim.

There will be judgment for the Defendant and the Third Party."

1. One feels some sympathy for the plaintiff/appellant. However, the grounds of appeal cannot be sustained. The learned Commissioner did not rule that negligence could not be inferred against the driver of the defendant's vehicle. Had he so ruled, no doubt, it would have been a ruling on a question of law. The following passage from Bolton v Stone [1951] AC 850 at 858–9 makes that clear:–

''It must be remembered and cannot too often be repeated that there are two different standards to be applied when one is considering whether an appeal should be allowed or not. The first is whether the facts relied upon are evidence from which negligence can in law be inferred; the second, whether, if negligence can be inferred, those facts do constitute negligence. The first is a question of law upon which the judge must actually or inferentially rule; the second, a question of fact upon which the jury, if there is one, or, if not, the judge, as judge of fact, must pronounce. Both to some extent, but more particularly the latter, depend on all the attendant circumstances of the case."

1. Mr Justice Windeyer put the same point with conspicuous clarity in Buckland v The Commissioner of Taxation (1960–61) 34 ALJR 60 at 62:

"Whether there is any evidence of facts sufficient to justify a particular conclusion of law is a question of law. But in every case, an appellant cannot simply by posing this as the question of law involved, invite this Court to consider not whether the Board could on the evidence come to the conclusion it did, but whether the Court considers it came to a correct conclusion in fact. To approach the matter in that way would be to render nugatory the provision that only where there is a question of law involved is there an appeal from the decision of a Board."

1. The learned Commissioner found that the plaintiff was negligent but that was a finding of fact. If he were in error in making that finding the error was one of fact and not of law as the above passages show (cf May v O'Sullivan (1955) 92 CLR 654 at 658).

1. I have reviewed the argument for the plaintiff/appellant. There is much in it to support the view that on the facts there should have been a finding that the defendant was liable in negligence. But the conclusion that such a finding ought not to be made is one of fact as the above authorities show and immune from attack under these grounds of appeal. And, of course, the conclusion that such a finding ought to be made against the plaintiff is also one of fact.

1. The appeal is dismissed.

tasInLaw: Sic.
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