Frost v Ford

[1995] QCA 334

IN THE COURT OF APPEAL	[1995] QCA 334
SUPREME COURT OF QUEENSLAND

C.A. No. 165 of 1994

Brisbane
[Frost v. Ford]

BETWEEN:

GEOFFREY ELLIS FROST

(Plaintiff) Appellant

AND:

KAY LORRAINE FORD

(Defendant) Respondent

McPherson JA
Moynihan J

Ambrose J

Judgment delivered 08/08/1995

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	PERSONAL INJURY - motor vehicle - apportionment of responsibility
Counsel:	Mr G. Reithmuller for the appellant Mr C. White for the respondent
Solicitors:	Lee Turnbull & Co for the appellant Middletons for the respondent
Hearing date:	5 May 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 164 of 1994

Brisbane

Before McPherson JA

Moynihan J Ambrose J

[Frost v. Ford]

BETWEEN:

GEOFFREY ELLIS FROST

(Plaintiff) Appellant

AND:

KAY LORRAINE FORD

(Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 08/08/1995

This is an appeal against apportionment of responsibility for a motor
vehicle collision that occurred at an intersection of roadways in Townsville.
Both motor vehicles involved in the collision were travelling about the

same speed at the time of collision. That speed was a reasonable one in the

circumstances.

The appellant did not see the respondent until moments before the impact. The respondent had no memory of the collision but probably saw the appellant before she entered upon the intersection.

The appellant approached the intersection on his correct side of the roadway some little distance from the edge of the carriageway. As he approached the intersection, the respondent was approaching it from the right hand side of the appellant, although there was a traffic sign requiring her to yield right of way to him.

On the facts there is no reason why, had either the appellant or the respondent been keeping a proper lookout on approaching the intersection and/or entering upon it, he or she would not have seen the other approaching and been able to avoid the collision.

The respondent suffered injuries in the accident which led to a post traumatic retrograde amnesia. She was unable to recall events immediately preceding the collision.

Just prior to the collision the respondent's daughter was standing on
or near the intersection and observed relevant events preceding the collision.

There was an independent witness driving a vehicle some distance behind the appellant and he also had the opportunity to observe relevant events preceding the collision.

The respondent's daughter made statements in writing concerning her observation of events preceding the collision which were inconsistent to a significant extent with the evidence which she gave upon trial. She was cross-examined on these inconsistencies because the statements first given would arguably have justified an apportionment of responsibility which would have been more favourable to the appellant.

The learned trial judge, however, accepted the daughter of the respondent as an honest and reliable witness in the evidence which she gave upon trial and disregarded the former inconsistent statements which she had made. The finding of the trial judge in this regard was not challenged as indeed it could not in the circumstances have been.

It is clear from the evidence that the point of impact was between the driver's side front of the appellant's motor vehicle and the rear passenger side of the respondent's vehicle. At the time of impact, therefore, the respondent had crossed about three quarters of the width of the intersection, which was from kerb to kerb a distance of about 23 metres. On the other hand, the appellant had barely emerged past the kerb alignment of the street down which the respondent was proceeding.

The learned trial judge apportioned responsibility for the collision 60/40 in favour of the respondent.

The appellant contends that the collision occurred on an intersection where he had right of way and there was no special circumstance to justify an apportionment being made in respect of which he was required to bear the greater proportion of responsibility.

The appellant had been proceeding along a street called Stokes Street and the respondent along a street called Wills Street prior to the collision. In summarising his findings, the learned trial judge said:

"The plaintiff (appellant) accelerated after turning into Stokes
Street and approached the Wills Street intersection. His
vehicle hit the defendant's vehicle on the passenger side.
The defendant's vehicle had driven from right to left across
the path of the plaintiff's vehicle."

The learned trial judge found upon the evidence that when the appellant saw the respondent's vehicle it was then too late for him to avoid collision.

According to the independent witness proceeding along the roadway behind the appellant, the appellant was not speeding as he approached the intersection. He first saw the respondent's vehicle when it entered onto the intersection. He confirmed that both vehicles were travelling at about the same speed immediately prior to impact. The respondent's daughter said that she saw the respondent's vehicle slow down to a walking pace at the give way sign at the intersection which she drove past and then accelerated across the intersection at a "normal" speed and was three-quarters away across the intersection when the collision occurred. The learned trial judge summarised the facts relevant to the determination of the issue of apportionment in the following way:

"The defendant (respondent) approached the intersection slowing her vehicle to a walking pace at the give way sign. She then proceeded to cross the intersection at a normal speed. Her vehicle proceeded to cross the inbound lane and was partly across the outbound lane when struck at the rear by the plaintiff's (appellant's) vehicle."

The learned trial judge found that the appellant's vehicle was in Stokes Street when the respondent commenced to cross the intersection and found "She therefore made an error of judgment in proceeding across the intersection at that time and a prudent driver would have waited." An alternate inference open to the trial judge was that the respondent simply failed to keep a proper lookout - as did the appellant.

With respect to the appellant's manner of driving the learned trial judge found that he had not seen the respondent's vehicle until immediately before the collision, although it had been driving across the intersection in front of him for some distance as he approached that intersection. He found that there was no obstruction to the appellant's view of the respondent. He said:

"Had he been keeping a proper lookout, he would have seen the vehicle in plenty of time to slow down or stop to avoid the collision."

In making his apportionment, the learned trial judge made the

following observations:

"Normally where a collision occurs in these intersections, the driver who passes a give way sign will bear all or most responsibility for the collision. However, the Court must look at the circumstances of each collision. Here, having regard to the distance the defendant's vehicle had gone through the intersection, the speed the defendant's vehicle was travelling and the length of time the plaintiff would have had the defendant's vehicle under observation had he been keeping a proper look out, I am satisfied that the plaintiff must bear the greater proportion of responsibility for this particular collision."

In our view, it is clear from the observations of the learned trial judge that he did give weight to the failure of the respondent to yield right of way to the appellant as required by the give way sign facing her as she approached the intersection.

It is clear from the terms of his judgment that he inferred that the respondent probably had seen the appellant's motor vehicle approaching the intersection but that she had "made an error of judgment in proceeding across the intersection at that time and a prudent driver would have waited." Another inference open was that having observed the distance to be travelled by the appellant she assumed he would slow down to the extent necessary to allow her to cross the intersection without a collision occurring.

In our view, upon the evidence it is clear that the findings of fact made by the learned trial judge were open on the evidence.

While it is clear that the "error of judgment" reflected negligent driving on the part of the respondent, it is equally clear that she had committed herself to crossing the intersection and had commenced to cross it an appreciable time before the appellant entered upon it and had he been keeping a proper lookout it would have been obvious to him that she had embarked upon the crossing in circumstances where, if he continued on to the intersection, there was danger of a collision.

In our view, upon those facts it cannot be said that in making the apportionment which he did the learned trial judge was guilty of such an error as to call for correction by this Court. It is not sufficient for the appellant to demonstrate that an apportionment more favourable to the appellant might have been made by the learned trial judge.

There is nothing in the judgment of the learned trial judge to suggest
that he overlooked what was said in Sibley v. Kais (1967) 118 CLR 424 at 427:

"The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."

In Pennington v. Norris (1956) 96 CLR 10, the High Court of Australia allowed an appeal against a 50/50% apportionment and substituted in lieu an apportionment 80/20%. At p. 15 of the report it was observed:

"It is clear that the Act intends to give a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much a latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged. ... But, giving full weight to those considerations in the present case, we are unable to avoid the conclusion that, in apportioning the responsibility equally, his Honour must have overlooked certain features of the case, and that the amount by which he reduced the assessed damages cannot really be supported."

Upon the facts of this case, in our view, it does not appear that the learned trial judge overlooked any of the relevant facts. It cannot be said upon the facts as he found them that his apportionment was so unreasonable that it cannot be supported.

We would dismiss the appeal.