Farrow v Gordon

[1999] TASSC 70

[1999] TASSC 70

CITATION:                 Farrow v Gordon [1999] TASSC 70

PARTIES:  FARROW, Kathryn
  v
  GORDON, Brian

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 53/1998
DELIVERED ON:  17 June 1999
DELIVERED AT:  Hobart
HEARING DATES:  11 June 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Appeal and New Trial - Appeal - General principles - When appeal lies - Error of law - Vitiating error - Motor vehicle accident - Whether negligence - Appeal from Commissioner - Whether error of law.

Austin v Connaire A30/1987; Rundle v Furley 71/1962, considered.
Aust Dig Appeal and New Trial [6]

REPRESENTATION:

Counsel:
             Appellant:  M R Bowman
             Respondent:  C W Law
Solicitors:
             Appellant:  Michael Bowman
             Respondent:  Page Seager

Judgment Number:  [1999] TASSC 70
Number of Paragraphs:  15

Serial No 70/1999
File No LCA 53/1998

KATHRYN FARROW v BRIAN GORDON

REASONS FOR JUDGMENT  WRIGHT J

17 June 1999

1. Brian Gordon, the respondent, sued Kathryn Farrow, the appellant, in the Court of Requests, for $2,440.50, being the cost of repairing his motor car which had sustained rear end damage in a collision with the appellant's vehicle on 4 July 1996 at Magra.

1. At the time of the accident, the appellant was driving her vehicle to work from her home, in the direction of New Norfolk.  After rounding a corner about 150 - 200 metres from the respondent's home, she drove along a straight stretch of road in relation to which there is a 100 kilometre per hour speed limit.  The appellant was alone in her car and she says that she was travelling at 45 - 50 kilometres per hour.  She says that it was a foggy morning and visibility was reduced to about 30 metres.  Nonetheless, she says she saw the tail lights of the respondent's vehicle on its incorrect side of the road, but facing in the same general direction as her own vehicle.  She realised that the driver of the respondent's vehicle was intending to proceed along the road towards New Norfolk, but she thought that the driver of that vehicle was waiting until her car had gone past before doing so.  She said that shortly before she drew level with the respondent's vehicle, it pulled out across the road in front of her.  She was unable to avoid a collision.  She did not apply the brakes as she thought this may cause the vehicles to spin if a collision occurred.  Instead, she accelerated and tried to go around the other car to the right hand side.  She did not sound her vehicle's horn and she was unsuccessful in avoiding a collision.  The front of her car hit the rear of the respondent's vehicle.

1. The respondent's wife was driving his car at the relevant time.  She was accompanied by her daughter Wendy who had sustained serious neck injuries in a previous accident and was consequently a nervous and, it was claimed, an observant passenger.  Both Mrs Gordon and her daughter gave evidence that it was their intention to travel to a neighbour's house so that Miss Gordon could obtain a lift with that neighbour to her place of work in Hobart.  Both of these witnesses gave consistent evidence that Mrs Gordon had driven the vehicle from a nature strip outside the family home for a short distance along the road towards the direction from which the appellant was travelling and that Mrs Gordon then turned across the road into the driveway of a nearby house for the purpose of completing a three point turn.  Both said that the vehicle entered the driveway of this home and both said that they checked carefully to ensure that the roadway behind was clear before reversing.

1. Having satisfied herself that the road was clear, Mrs Gordon then reversed the vehicle on to the road, brought it to a complete stop and then changed from reverse to forward gear and proceeded slowly up the road towards New Norfolk on the extreme left hand side.  Neither of them saw the appellant's vehicle before the collision.  Mrs Gordon said it was still dark at the time.  Her daughter said it was just beginning to get light.  Both denied that there was a heavy fog as claimed by the appellant.

1. In his particulars of claim, the respondent alleged that the appellant was negligent in failing to keep a proper or sufficient lookout, driving at a speed which was excessive in the circumstances, and failing to brake, stop, slow down, swerve or so manoeuvre as to avoid a collision.

1. The appellant denied these allegations and, alleging that Mrs Gordon was the respondent's agent, she counterclaimed for the cost of repairs to her vehicle against the respondent.

1. It may have been arguable that Mrs Gordon was not acting as the respondent's agent, but this fact was formally admitted by counsel for the respondent at the commencement of the trial which took place before Commissioner Matterson at New Norfolk on 10 June 1998.

1. At the conclusion of the trial, the learned Commissioner gave ex tempore reasons for his decision.  He found in favour of the respondent.  He found that the collision was caused solely by the negligence of the appellant.  He regarded inconsistencies between Mrs Gordon and her daughter's estimates of time as an insufficient basis for declining to accept their evidence as to the circumstances leading up to the collision.  He preferred their evidence to that of the appellant and found that the appellant had failed to keep a proper lookout and had also failed to brake, slow down, or manoeuvre so as to avoid a collision.  He found that the allegations of contributory negligence against Mrs Gordon had not been established.

1. The appellant has appealed against the learned Commissioner's judgment on the following grounds:

"1THAT the Learned Commissioner erred in law in that he attached insufficient weight to the inconsistencies in the evidence of the witnesses for the respondent.

2THAT the Learned Commissioner erred in law in disregarding the evidence of the witness Wendy Gordon in relation to the assessment of time.

3THAT the Learned Commissioner erred in law in finding that the failure of the Respondent's agent to see the Appellant's vehicle before the accident did not constitute a lack of due care and attention by the Respondent's agent.

4THAT the Learned Commissioner erred in finding that the Appellant was not keeping a proper lookout.

5THAT the Learned Commissioner erred in law in attaching greater importance than was reasonable to the nervousness of the witness for the Respondent Wendy Gordon."

1. The approach to an appeal of this kind was discussed by me in Austin v Connaire 30/1987 at 9.  Grounds 1 and 2 refer to the inconsistencies between Miss Gordon and her mother to which I have already referred.  Miss Gordon estimated that particular events leading up to the accident took minutes rather than seconds.  This material was elicited under cross-examination.  It was not led in chief.  Neither witness claimed to be an expert or to remember the times accurately.  During the course of the final addresses, the learned Commissioner suggested to counsel for the appellant that witnesses are "notoriously inaccurate when it comes to measurements of time".  I agree with his observations.  I have no hesitation in saying that in my experience lay witnesses called upon to make estimates of time in relation to a particular sequence of events occurring during a motor vehicle collision or, indeed, any circumstances occurring suddenly or unexpectedly, rarely make reliable or even sensible estimates of the time which has elapsed.  This does not mean the witness is lying or is unreliable as to the occurrence of particular events or their sequence.  It simply means that the witness is hopelessly inaccurate in making retrospective assessments of time intervals.  This is a conclusion more readily drawn in cases such as the present where a particular witness consistently over-estimates or under-estimates distinct time intervals.  I am referring here to the fairly obvious over-estimates of time made by Wendy Gordon during the course of her cross-examination.  I consider that no basis has been shown for doubting the evidence of either Wendy Gordon or her mother as to the circumstances leading up to the collision and that there is no substance to grounds 1 and 2 of the notice of appeal.

1. As to ground 3 ¾I am of the view that no convincing argument has been presented to sustain the complaint that upon the evidence Mrs Gordon should have been found guilty of at least contributory negligence.  She and her daughter gave evidence, which was plainly accepted, that the turning manoeuvre had been completed and the vehicle in which they were travelling was moving slowly ahead on its correct side of the road when the collision occurred.  Neither, on the basis of their evidence, nor that of the appellant, could it be said that their vehicle had stopped or turned suddenly in the path of the appellant's motor car and thereby created an unexpected impediment to its progress.  If Mrs Gordon had been travelling ahead of the appellant's vehicle at a substantial speed and she had suddenly applied the brakes without being aware that another car was following closely behind, it may have been argued that there was a failure to keep a proper lookout which was partly causative of the collision, but even in those circumstances the driver of the following car would almost inevitably bear the greater share of responsibility (cf Rundle v Furley 71/1962 per Gibson J).

1. It must also be said that Mrs Gordon's failure to see the appellant's vehicle before the accident can scarcely be regarded as causative of the collision, given the learned Commissioner's acceptance of her evidence that she had completed the turn and was heading straight along the road towards New Norfolk.  In such circumstances, it is difficult to see what steps were reasonably open to her to avoid the collision, even if she had seen the appellant's car approaching from the rear when it was still some distance away.  She was on the extreme left and she could not have gone further off the road in that direction.  The photographs show that there is a fairly deep ditch and an embankment on that side which would have made such a manoeuvre dangerous.  The vehicle she was driving was not powerful enough to accelerate swiftly to keep ahead of the car bearing down on her from behind.  To swerve to the right would court disaster if the overtaking car attempted to pass on that side.  Stopping suddenly would only have enhanced the force of the collision between both cars.  In short, there was no evasive tactic which she could have been expected to employ once she had moved out of the driveway, straightened up and commenced to move ahead.  The appellant was, in a very real sense, the master of the situation.  In my opinion, ground 3 cannot succeed.

1. As to ground 4, it seems to me to be inevitable that once the learned Commissioner accepted the evidence of Mrs and Miss Gordon as to the way in which the appellant's car was being driven at the moment of collision, he would find that an element of the appellant's lack of care lay in her failure to observe the other vehicle which was travelling ahead of her on this straight stretch of road.  There is an over-riding obligation on all drivers to drive within the limits of their vision, ie, to be sufficiently observant in the circumstances and weather conditions which exist at any given time, to notice developing problems and, by doing so, avoid colliding with other vehicles being driven in a prudent and lawful manner.  It may be noted in passing that the learned Commissioner's finding that the appellant also failed to brake, slow down or manoeuvre so as to avoid a collision, has not been challenged, so even if this ground were to be sustained, the appellant would not necessarily succeed.  Ground 4 fails, in my opinion.

1. Ground 5 relates to one of the features which helped persuade the learned Commissioner that the balance of probabilities were in favour of the truth of the version of events recounted by the respondent's witnesses.  There were other features which he referred to, as well.  For example, the repair quotes (D1) and the overall consistency of their accounts.  The learned Commissioner was entitled to consider all of these factors as assisting in his assessment of the credibility of the witnesses and, in my opinion, there was no error in law in his doing so.  He made no specific findings as to the qualified admissions of liability alleged to have been made by the appellant after the accident by the respondent's witnesses, but it was unnecessary for him to do so.  The appellant did not allege that Mrs Gordon made any admissions to her.  The learned Commissioner quite clearly decided the case, not on the basis of anything which either driver may have said at the time, but rather on an evaluation of the competing accounts given by the witnesses.  Whatever else may be clear, it is quite clear that the appellant at no time attributed the accident to the sudden rearward emergence of the respondent's vehicle from the neighbour's driveway into the path of her oncoming car.  Even on her version of events, the respondent's car was facing towards New Norfolk when she first saw it and she appreciated that it was being driven by a person who was intending to drive off in that direction.  In such circumstances, she was under a clear duty to drive carefully and in such a manner that she could pull up if necessary if that vehicle should move out onto the roadway to commence its journey.  This, of course, was not the version accepted by the Commissioner.  I am quite unable to conclude that he was in error in coming to the conclusions which he did.

1. In my opinion, ground 5 fails and the appeal must be dismissed.