Fenton v Packett

[1989] TASSC 92

Serial No. B14/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Fenton v Packett [1989] TASSC 92; B14/1989

PARTIES:  FENTON
  v
  PACKETT

FILE NO/S:  329/1987
DELIVERED ON:  5 May 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B14/1989
Number of paragraphs:  19

Serial No B14/1989
File No 329/1987

FENTON v PACKETT

REASONS FOR JUDGMENT  CRAWFORD J

5 May 1989

1. The plaintiff has sued the defendants for damages for negligent driving. The evidence of the plaintiff, Mr Fenton, was that at about 7.45am on 3 February 1987 he was driving his Falcon sedan in a southerly direction on the West Tamar Highway, approaching Legana. He was on his way to work and knew the road well. At the junction of Craythorne Road with the highway, he came up behind a Toyota Hi–Ace van driven by the third defendant, Mr Sims (in the course of his employment by the first and second defendants). He followed the van for a distance of three kilometres to the top of Muddy Creek Hill. When he came up behind the van there was a utility in front of the van and two trucks six or seven car lengths ahead of it. When he came to the top of the hill he was confronted with a downhill straight. The highway there consisted of three lanes. The line of traffic, of which he was a part, was in the left lane. He was entitled to overtake in the centre lane.

1. Mr Fenton said that he was travelling at 80 kilometres per hour when, at the top of the hill, he decided to overtake. He was then two or three car lengths behind the van driven by Mr Sims, which was travelling at the same speed. He indicated his intention to move to the right to overtake. He thought it likely that the van might itself endeavour to overtake the vehicles in front of it and so he checked it before he went to overtake. There was no indication from it of an intention to overtake. He moved into the centre lane and commenced to overtake. There was no traffic coming from the opposite direction. As Mr Fenton proceeded to overtake he was concentrating on the road further down the hill, to make sure that no vehicle was coming in the opposite direction out of a dip ahead. He was "pretty sure" there was no such vehicle but he wanted to make sure. The Falcon was fully abreast of the van when Mr Fenton saw out of the corner of his eye that the van was about one third of the way into the centre lane. He said it was two or three feet into the centre lane. Prior to then the van had been in the middle of the left lane. When he realised the position he considered that there was definitely going to be a collision unless he did something. He swerved to the right. It was a reflex action. The two vehicles got within two centimetres of each other.

1. The plaintiff said that as a result of swerving to his right, the tail of the Falcon started to swing to the left. He tried to correct the vehicle and the tail then swung to the right, which caused the vehicle to go to the left side of the highway. It then went off the highway in front of the van and behind the utility. Damage to the vehicle occurred as a result. At no stage had he seen any indicator light on the van. At the time he swerved, that is when the van was one third into the centre lane, it was heading out from the left lane into the centre lane. The road was dry. He did not apply his brakes initially because it did not seem to him correct to do so, being out of control. However later he did apply his brakes when he realised that his efforts to control the vehicle were not slowing it up. There was definitely no noise from his tyres before he took evasive action. Once he was out of control, as described above, there may have been noise from his tyres, but he could not remember hearing it. The distance he travelled from the time he took evasive action to where the vehicle ran off the side of the highway was at least one hundred metres.

1. The evidence of Mr Fenton was that when he decided to overtake he was travelling at 80 kilometres per hour and he then accelerated. He did not know his exact speed when overtaking, but at a guess it reached 90 to 100 kilometres per hour before he had to take evasive action. He repeated that his swerving to the right was a reflex action to avoid an accident. He did not think he over reacted. He did not simply steer further to the right instead of swerving, because a collision was definitely going to occur then and there unless he swerved. He had one thing in mind and that was to get out of the way of the van. It was a split second decision. He said that the van had not commenced to move into the centre lane before he got right alongside it. He did not notice any change in the van's speed at any time. When his car left the highway its speed was still between 90 and 100 kilometres per hour. It left skid marks of two or three metres on the left side of the road just before it left the road surface. He disputed the suggestion that his tyres left skid marks for about 100 metres from where he took evasive action. He did not check the road surface after the accident, but he travelled the highway every working day and he saw the skid marks at the side of the road for a long time after.

1. Mr Sims said that he had been driving on that highway almost every day for two months. He was following a Datsun one tonne utility, in front of which was a laden gravel truck towing a laden pig trailer, which was also laden with gravel. The traffic was virtually bumper to bumper. He had been following the other vehicles from where the road to Grindelwald junctioned at the highway (which was also where Craythorne Road junctioned with it). When he got to the top of Muddy Creek Hill he decided to overtake the utility and the gravel truck. He was travelling at 80 kilometres per hour. He looked in his centre mirror and on seeing nothing behind he put on his right indicator, waited a couple of seconds, or two or three seconds, to gather speed and proceeded to move out into the centre lane. He had a right wing mirror but did not look in it. He had previously fixed it so that he could see the right rear corner of the van so as to assist him when reversing. He said that if there was a car level with the back of the van and three feet out from it he could not have seen it in either mirror. He said that there was a blind spot there. Before he looked in the centre mirror he was not conscious of any vehicle behind him. He was "pretty sure" nothing was following close behind. He had checked ten or fifteen seconds before, he said. He could not categorically deny that the plaintiff's Falcon had followed him for three kilometres. It depended on how far back it had been. The only window on the right side of the van was the window in the driver's door.

1. It was the belief of Mr Sims in the witness box that at the time he looked in his centre mirror, when he was preparing to overtake, the plaintiff's car was already in the centre lane and not visible in the mirror. Because at the time he thought that it was safe to overtake he proceeded to move out. He got the nose of the van out into the centre lane and then heard the screech of tyres which frightened him. His vehicle was then at an angle and he agreed with Mr Fenton as to his position in the centre lane, that is, he said, he was two feet into the centre lane. On hearing the screech of tyres he immediately pulled back into the left lane and looked out his driver's side window. He saw nothing at first, but after about two seconds he saw the plaintiff's Falcon come past. It was slightly angled to its right, by about ten to fifteen degrees. It is hard to estimate its speed but it was going considerably faster than he was. There was no oncoming traffic. He did not think he braked but he was not "real sure". If he did it was not a hard braking. He certainly slowed, taking his foot off the accelerator.

1. Mr Sims said that he saw the Falcon straighten up and then its rear swerved to the right. It proceeded down the road with tyres screaming. Blue smoke was coming from the tyres. Then it spun around and ended up nearly facing back towards the van. It then ran off the road, about one hundred metres in front of the van. Following that day Mr Sims travelled on that road three or four days a week for twelve to fifteen months. He saw the tyre marks left by the Falcon on the road. They were one hundred metres long. He said that there were two of them and for a distance of ten to fifteen yards there were four of them. He did not measure or step them out. In fact the impression I gained was that he only saw them as he travelled along the highway, and he did not stop to closely examine them.

1. Evidence was given by Mr Michael Hutton who was a passenger in the van, sitting next to Mr Sims. He said that he saw Mr Sims look in the centre rear vision mirror and indicate to move right. The van then moved two to two and a half feet into the centre lane. There was a screech of tyres and Mr Sims moved straight back into the left lane. The time between the indicator going on and the squeal of tyres was approximately two to three seconds. The squeal of tyres occurred just as Mr Sims moved out into the centre lane. It happened at the same time. Mr Hutton looked right and saw the Falcon coming past out of control. There was a gap of three to four seconds between hearing the squeal of tyres and seeing the Falcon. It was pointing to its right and was approximately one and half to two metres from the van. He estimated its speed in excess of 110 kilometres per hour. Mr Sims started to decelerate down to 60 kilometres per hour. The Falcon came across the road to the left in front of the van, out of control and went over a bank on the left side of the road. It travelled in front of the van for 80 to 100 metres before doing so. He saw smoke coming from its tyres until it went off the road. It all took four to five seconds. At all times when he had the Falcon in his sight, it was out of control.

1. Generally I accept the evidence of the plaintiff as to what occurred up to the taking of evasive action by him. He could see and in fact basically knew what was happening ahead of him and certainly knew what he was doing. On the other hand neither Mr Sims or Mr Hutton knew that the Falcon was behind, nor that it was moving alongside in the course of overtaking, until the dangerous situation had been created by Mr Sims and Mr Fenton had taken evasive action.

1. My findings are as follows. The plaintiff came up behind the van and the other vehicles three kilometres before the accident scene. He followed Mr Sims' van and the other vehicles for that distance. In making these findings I am influenced by the facts that Mr Sims said he came up to the other vehicles at the same place and that both Mr Fenton and Mr Sims said that when they decided to overtake they were travelling at 80 kilometres per hour.

1. At the time of reaching Muddy Creek Hill both Mr Fenton and Mr Sims made a decision to overtake vehicles in front. However Mr Fenton made the decision first. He knew that it was likely that Mr Sims might also move to overtake. He checked and saw that the van was showing no signs of doing so and he then indicated, accelerated, moved into the centre lane and moved up to the rear of the van in the course of overtaking. Mr Sims decided to overtake during this time. He looked in the centre mirror and did not see the Falcon because it was already in the centre lane, probably approaching and close to the rear of the van. If his wing mirror had been properly adjusted for use when travelling and if it had been used by Mr Sims, he would have been able to observe the Falcon moving up along side. However in the circumstances Mr Sims made no such observation and wrongly assumed that it was safe for him to move out into the centre lane.

1. Mr Fenton stopped concentrating on the van but instead concentrated further down the highway, and as a result he failed to observe the fact that the van was moving into the centre lane until the collision was imminent and then the van was about one third of the way into the centre lane. If Mr Fenton had paid closer attention to the van, which he had known might well make a move to overtake itself, he would have observed the movement of it earlier than he did. It is possible that he would also have been able to see the right indicator which was put on by Mr Sims, although at the time it was put on he would have been close to the rear of the van and to its right. There was no evidence as to the position of the indicator light and I cannot find whether it would have been visible in those circumstances.

1. At the time Mr Sims commenced to move the van to his right towards the centre lane, it is probable that the Falcon's front was close to the rear of the van, and by the time the van was two or three feet into the centre lane the Falcon's front had advanced to somewhere alongside the van. I do not accept that the front of the Falcon was level with the front of the van at that time, because I am satisfied that having heard the squeal of tyres, Mr Sims and Mr Hutton were unable to see the Falcon at first until it came past out of control, but not under brakes, a second or two after. I believe that Mr Hutton's estimate of three or four seconds was an unconscious exaggeration of time.

1. When Mr Fenton realised that the van had moved partly into his lane he also realised that a collision was imminent. As a reflex action he swerved to his right, just avoiding contact between the two vehicles which almost touched. As a result he lost control and he was not able to regain control to prevent the Falcon running off the highway, one hundred metres or so further down the hill. It is likely that when he moved back into the left lane, Mr Sims also braked, but whether he did does not matter. Mr Hutton in fact said that the speed o f the van reduced to 60 kilometres per hour.

1. I find that the speed of the plaintiff's car may have increased from 80 to 100 kilometres per hour by the time he took evasive action, but would not have exceeded 110 kilometres per hour.

1. I am satisfied that the primary causes of the accident were the failure of Mr Sims to keep a proper lookout and his action in moving the van out into the centre lane when it was not safe to do so. It was his duty not to change lanes without making sure that no other vehicle was using the centre lane for the purpose of overtaking. He had a blind spot behind him so far as use of the mirrors was concerned. He had created that blind spot himself by the way in which he had fixed the wing mirror. I am therefore satisfied that Mr Sims was negligent and caused the plaintiff's damage.

1. I make no finding adverse to the plaintiff so far as his speed and inability to bring his vehicle back under control, once he had lost control, are concerned. However, I consider that he did not keep a proper lookout. He was aware that Mr Sims might commence to overtake but once he had pulled out he failed to pay attention to the van, with the result that it had moved from the centre of the left lane to a position two or three feet into the centre lane before he realised it. I am satisfied that if he had paid closer attention to the van he would not have lost control. He would have observed its movement earlier than he did and he could have simply steered to the right instead of swerving, safely braked and probably also sounded his horn.

1. The responsibility of Mr Sims is greater than that of Mr Fenton. He created the dangerous situation. There is a heavy obligation on a driver not to change lanes unless it is safe to do so. In such circumstances I apportion liability 70% against the third defendant, Mr Sims, for whom the first and second defendants are vicariously liable, and 30% against the plaintiff, Mr Fenton.

1. The damages were agreed at $8,097.00. There will therefore be judgment for the plaintiff against the defendants for 70% of that sum, that is for $5,667.90.