Greg Condon Transport v Gordon

[2011] QDC 7

DISTRICT COURT OF QUEENSLAND

CITATION:

Greg Condon Transport v Gordon [2011] QDC 7

PARTIES:

GREG CONDON TRANSPORT
(Plaintiff)
-and-
David William GORDON
(Defendant)

FILE NO:

Ch Twrs D55 of 2009

DIVISION:

Civil.

PROCEEDING:

Claim and Counterclaim

ORIGINATING COURT:

District Court, Charters Towers

DELIVERED ON:

16 February 2011

DELIVERED AT:

Charters Towers

HEARING DATE:

14 February 2011

JUDGE:

Baulch SC DCJ

ORDERS:

1.   Judgment for the Plaintiff in the sum of $116,812.52, comprising $98,318.76 for claim and $18,493.76 for interest.

2.   The Defendant’s counterclaim is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – EXCESSIVE SPEED.

DAMAGES – GENERAL PRINCIPLES – DIFFICULTY OF ASSESSING DAMAGES.

LEGISLATION AND CASES:

Civil Liability Act
Jones v Dunkel  (1959) 101 CLR 298

JLW (Vic) Pty Ltd & Tsiloglou & Ors

COUNSEL:

R. Morton for the Plaintiff

D. J. O. North SC with W. Pennell for the Defendant

SOLICITORS:

McInnes Wilson for the Plaintiff

Lee, Turnbull & Co for the Defendant

1. On 15 September 2008, a head-on collision occurred on a dirt road leading to the Hyde Park Station near Charters Towers.

1. The collision was between the Plaintiff's prime mover, which at the relevant time was pulling three trailers loaded with cattle and driven on the Plaintiff's behalf by one Gregory Don Condon and the Defendant's four wheel drive tray back motor vehicle, driven by the Defendant.

1. Both vehicles suffered significant damage.  By Claim and Counterclaim the Plaintiff and Defendant seek recompense for the damage.

1. All of the damages are agreed save and except for the Plaintiff's claim for the cost of a replacement vehicle.

BACKGROUND

1. The road from Charters Towers to Hyde Park Station is a dirt road which, in the relevant part, passes through bushland.  It has a formed dirt surface approximately four metres wide and there are drains on either side of the formed surface, which are in the relevant part of the highway, trafficable. 

1. The collision in question occurred near a very significant bend in the road.

1. The bend in the road seems to be almost a 90º bend (see exhibit P1).

1. The vehicles came to rest at a position just on the Charters Towers side of the bend to which I have referred.

1. Prior to the collision, the Plaintiff's vehicle, driven by Mr Condon, was approaching the corner intending to make a right hand turn and the Defendant's vehicle was approaching from the opposite direction intending to make a left hand turn through the intersection.

1. The impact was a significant one.  Both drivers were rendered unconscious briefly and the damage to the Plaintiff's vehicle cost more than $90,000 to repair and the damage to the Defendant's vehicle was such that it was not economic to repair it.

1. On the day in question, the Plaintiff's vehicle was being followed by a vehicle driven by Edmond John Fitzgerald, who was also pulling a load of live cattle to Hyde Park Station and travelling with Mr Condon.

1. I heard evidence from those three drivers and received some photographs taken by a Mr Fitzgerald and photographs and a video film taken, if not by a Mr Gordon, then in his presence.

1. It should be noted that exhibit P2 consists of photographs taken on the day on which the collision occurred while exhibits D1 and D2 consist in images taken in March 2009 and November 2009 respectively.  I take the view that the best indication that I get of the foliage in the relevant area is from exhibit P2.  The foliage visible in those exhibits is generally consistent with the foliage demonstrated in exhibit D2 but somewhat different to that which appears in exhibit D1.  It seems to me to be likely that the intervention of a wet season affected the foliage that is demonstrated in exhibit D1 and I find it less reliable than the other exhibits as to what the surrounding area was like at the relevant time.

GREGORY DON CONDON

1. The Plaintiff's driver gave evidence that he was engaged in transporting live cattle from Croydon to the Hyde Park Station.  He had collected the cattle from Croydon at some time on the previous day and brought them to Charters Towers where there was some rest break before continuing on in the direction of Hyde Park Station.

1. He said that he was aware that the Defendant was driving towards him because of a radio conversation he had had with another vehicle which he passed on the dirt road, the driver of that vehicle having informed him that the defendant was following with a view to unloading the heavy equipment that was loaded on the first mentioned vehicle.

1. Alerted to the likely presence of another vehicle, Mr Condon spotted dust which he took to be being created by the approaching vehicle and commenced to slow his vehicle down.

1. He said that he had been aware of the oncoming vehicle by reason of its dust for a kilometre or two having noticed the dust drifting up through the timber.  He said he knew there was a bad bend coming and that after the bend the road would be winding through timber and so he thought that it would be best to pass on the Charters Towers side of the bend.  He said he slowed his vehicle right down to a crawl to give the Defendant's vehicle time to get there and to pass him but that before he got to the corner, the Defendant's vehicle rounded the corner and commenced to slide across the road before colliding with the front of his vehicle.  He said that he could not have got further left and that his vehicle was either stopped or moving very slowly at the moment of the collision.

EDMOND JOHN FITZGERALD

1. This driver confirmed that he was following the Plaintiff's vehicle at a distance of a kilometre or two.  He came upon the scene of the accident shortly after it had happened.  He confirmed that earlier in the trip he had passed another vehicle carrying a bulldozer and heard some conversation on the radio.

1. On coming on the scene of the accident he said he stopped his vehicle behind the Plaintiff's vehicle and went to see what was going on.  He said that subsequently he moved his truck by driving past the Plaintiff's vehicle and continuing on up to the Hyde Park Station house where he left the trailers attached to his vehicle and returned to the scene of the accident to lend assistance.  He said that he passed the Plaintiff's vehicle on its right hand side and that there was enough room for him to drive up the road on the right hand side of the Plaintiff's vehicle.  When he did that he had the Defendant with him in his vehicle.

1. In cross-examination he was asked whether it was necessary to move the Plaintiff's prime mover to the left to get his vehicle past it and he said that it was not.  He was not challenged about that answer.

DAVID WILLIAM GORDON

1. Mr Gordon said that Hyde Park Station is approximately 280 kilometres south of Charters Towers by road and that he had been to the station in connection with a bulldozer that was located there.  He said that the dirt road was a gravel road formed up by graders and that grass grows in the table drains on either side of the road.  He said the road was usually about four metres in width and that he had measured the road near the corner relevant to the accident.  He said that the aerial photograph which was exhibit P1 was taken on 19 November 2009.  I mention that I find that photograph less helpful than the other material as to the nature and extent of the foliage present simply because of the scale at which it is taken.

1. Exhibit D1 was produced through Mr Gordon.  It was a series of photographs taken in March 2009 which depict the foliage present at that time.  Mr Gordon said in relation to the foliage that the photographs were taken after the rain and showed the foliage a little greener than it had been at the date of the accident.  He thought however that the density of the trees was much the same but the grass might have been a little thicker.

1. As to the collision itself he said that he was travelling at about 65 kilometres an hour before he got to the corner and that he slowed to about 40 kilometres an hour coming into the corner.  He said that he had no warning that there was any oncoming vehicle.  He said that when he drove into the corner as he usually did, he slowed down and started turning the corner.  As he did so he saw the bullbar of a truck coming the other way, hit the brakes and skidded on the loose gravel and collided with the truck and the force of the collision rendered him unconscious.  He said that when the brakes were applied, the vehicle slid "in a straight direction".  He said he had not completed the turn.

1. Mr Gordon was asked to mark on exhibit P1 the point at which his vehicle was when he first saw the Plaintiff's vehicle and he did so by placing a red cross on the exhibit.  He was subsequently asked to indicate the position where the collision occurred and he did so by placing a red square on the exhibit.  Subsequently he was asked to place another marking on exhibit P1 to indicate the position of the tree that is shown in photograph A of exhibit P2 and he did so.

DISCUSSION

1. There was some conversation between Mr Condon and Mr Gordon following the accident.  I will not dwell on it at length as I find it of little assistance.

1. I note that there was some debate as to whether or not the Defendant used the word "sorry" in that conversation although ultimately he conceded that he did use that word.

1. I proceed on the basis that in the event that that constitutes an apology, I should disregard it having regard to the provisions of the Civil Liability Act and I attach no weight to it at all.

1. There was also considerable cross-examination of the Plaintiff’s driver as to times.  It is true that the evidence he gave is difficult to reconcile both internally and with the evidence of Mr Fitzgerald and the documents which became Ex. P4.  However, in my opinion the discrepancies are not unexpected given the passage of time and the time recorded in P4 may well be incorrect.

1. Further there was some cross-examination of directed as to whether or not the Plaintiff's driver was concerned as to whether or not he was working outside the hours of his log book but I do not think it necessary to resolve that issue as there was, in the upshot, no evidence that fatigue contributed to the occurrence.

1. Having considered all of the material, I have reached the conclusion that the evidence of the Plaintiff's driver is to be preferred to that of the defendant.

1. That is so for the following reasons.

1. First, I conclude that the impact occurred on the Charters Towers side of the relevant corner and not at the position indicated by the Defendant on exhibit P1.

1. Second, I think it more likely than not that the marking made on exhibit P1 to indicate the position of the tree shown in photograph A of exhibit P2 is incorrect.

1. Third, I think that the Defendant was guilty of exaggeration of his evidence when he said that the cattle crates were on a significant lean when Mr Fitzgerald drove past the vehicles after the accident.  This had not been suggested to Mr Fitzgerald in evidence or indeed to the Plaintiff and I think that the defendant had become aware that it might pose a significant obstacle to acceptance of his case.

1. Fourth, I find the evidence of Mr Condon to be supported by the photographs and consistent with what appears in them.

1. Fifth, I accept the evidence of Mr Fitzgerald that there was room to pass to the right (from his direction of travel) of the vehicles following the collision.

1. Sixth, the Plaintiff’s witness was not challenged in respect of the allegation that the Defendant told him that his radio was switched off and that he had been “daydreaming”.

1. Seventh, I think that the Defendant was mistaken when he marked the position of the tree that he marked on exhibit P1. The tree that he marked was amongst a clump of trees and I find that the tree in exhibit P2(A) is one of the two single trees shown closer to the arrow marked on the map by Mr Condon.

1. On that basis I am satisfied that the following significant facts are established on the evidence:

1.        That the collision occurred on the Charters Towers side of the 90º   bend, probably at about the position indicated by Mr Condon on   exhibit P1.

2.        That Mr Condon's vehicle was stationary or moving very slowly at   the moment of the collision.

3.        That the Plaintiff’s vehicle was at the left hand extremity of the trafficable surface when the impact occurred.

4.        That there was no significant movement of the vehicles after impact.

5.        That on sighting the Plaintiff's vehicle, the Defendant applied his   brakes and lost control of the vehicle and skidded across the   roadway before colliding with the front of Mr Condon's vehicle.

6.        That the Defendant's vehicle was travelling at approximately 40   kilometres an hour when it commenced to negotiate the corner.

7.        The Defendant did not have the radio turned on in his vehicle.

8.        The Defendant's explanation of his conduct after the accident was   that he was "just daydreaming".

NEGLIGENCE

1. Both drivers owed a duty of care to other road users to exercise reasonable care.

1. Both were familiar with the road and in particular familiar with the corner and the dangers that it posed.

1. I am not able to find that the Plaintiff's driver was guilty of any relevant negligence.

1. Being aware of the impending arrival of the defendant's vehicle, he slowed, if not to a stop, almost to a stop and pulled as far to the left of the highway as was practicable.  True it is, that the position of his vehicle indicates that that may have been done rather late in the piece but I am satisfied that there was room for the Defendant, had he been able to maintain control of his vehicle to have safely passed the Plaintiff's vehicle.

1. The Defendant on the other hand was not having due regard to the driving that he was undertaking.  He was aware that he was following the vehicle with the bulldozer on it and that his radio might have been used to reveal the presence of other vehicles on the roadway.  I am satisfied that he was daydreaming and that he did not have his radio on.

1. However, the most significant failure to take reasonable care on his part was the speed at which he drove into the corner.  He knew of the risk that other vehicles would be on the roadway and a proper discharge of his duty to take reasonable care was to keep his vehicle "in hand" so that he could avoid a collision of the sort that occurred.

1. Accordingly, I find that the collision in question was caused by the negligence of the Defendant and was not contributed to by any negligence on the part of the Plaintiff's driver.

DAMAGES

1. It is agreed that the Plaintiff's damages include the following items.

1.        Towing costs $4,000

2.        External repairs and labour $37,868.20

3.        Replacement parts $56,450.56

1. I mention that had it been necessary for me to assess damages on the counterclaim, the damages were agreed in the sum of $20,000 and would only have been necessary to consider interest.

1. The matter that remains in dispute is the costs of a replacement vehicle obtained by the plaintiff from A H Pastoral Co Pty Ltd, whilst the plaintiff's vehicle was off the road for repairs between 15 September and 7 November 2008.

1. The relevant period was specified in the pleadings as a period of seven weeks but I was told at the trial that it was agreed between the parties that the relevant period was eight weeks and that the only matter in issue was the rate at which the cost of provision of the vehicle was claimed.

1. The evidence in respect of this part of the claim is in short compass.

1. In the course of his evidence in chief, Mr Condon was shown an invoice which subsequently became exhibit P3.  He said that that invoice was for the hire of a truck from a person named Mick Pimble and that the hire had been entered into so that he could carry on doing his work of pulling his trailers.  He said that to get a vehicle big enough to pull three trailers that he was accustomed to pulling was almost impossible because the vehicle had to be "140 tonne" rated.  He said that he enquired of a commercial organisation named Rentco and was told that an appropriate base rate was $3,800 a week.  This evidence was received over Mr North's objection but I allowed it to be given because it seemed to me that while part of the question was whether or not the rate itself was reasonable, part of the question might revolve around the reasonableness of the Plaintiff's conduct in entering into an agreement at that rate.

1. After the objection he was asked some further questions and said he made some enquiries of hire companies as to the rate for hire of a 140 tonne rated truck and he was told that

1. Mr Condon's evidence continued to the effect that there would be charges for kilometres in excess of 500 kilometres a week and that his usual use of a vehicle would be to do 5,000 kilometres a week.  He said that he told A H Pastoral Co Pty Ltd that $3,800 a week was the starting figure and that he and Mr Pimble agreed upon that figure.  He went on to say that he never in fact paid any money and that he and Mr Pimble had some sort of "contra" arrangement in which they would set off amounts owed one to the other for various jobs performed.

1. Mr Condon was cross-examined at some length about this topic.  He was quite unable to be specific as to the way in which the accounting was done and what number of jobs he might have done to "work off" the amount due to A H Pastoral Co Pty Ltd.  It seemed to me that there might be some significance in the form of the pleading as paragraph 11 of the further amended Statement of Claim (document 18 on the court file) was responded to in the amended Defence and Counterclaim of the defendant (document 15 on the court file) in this way.

"The defendant denies that the allegations in paragraph 11 of the   Statement of Claim in so far as the loss and damage was caused by the   defendant's negligence."

1. It seemed to me that such a qualified denial might have led the Plaintiff to think that there was not a serious issue about the quantum of any amount claimed.

1. Counsel for the Plaintiff, however, disclaimed any reliance on a pleading point and said that he accepted that it was necessary for the plaintiff to prove both the amount of the claim and the reasonableness of it.

1. I have no reason to think that the Plaintiff was dishonest when he gave the evidence that he gave in respect of the replacement of the vehicle.  I do, however, think that the Court is entitled to expect that evidence proving a significant claim for damages ($30,400) would be provided with some more certainty than was provided here.

1. It would have been a relatively simple matter for the Plaintiff to produce evidence from A H Pastoral Co Pty Ltd confirming the plaintiff's evidence concerning the matter.

1. I am assisted in respect of this part of the matter by the decision in JLW (Vic) Pty Ltd & Tsiloglou & Ors[1] where there is a significant review of the authorities concerning a Plaintiff's obligation to produce evidence to establish the loss in the judgment of Brooking J. where he said (at p. 241):

   [1] (1994) 1 V.R. 237

"The nature of the damage may be such that the assessment of damages   will really be a matter of guesswork, as in the well-known case of Chaplain             v Hicks (1911) 2 K.B. 786 where the plaintiff has lost a chance of winning an engagement as an actress as a prize. So damages will be assessed for wrongful detention of a racehorse even thought it may be necessary to guess at the amount: Wilson v Matthews (1913) VLR 224; compare Howe   and Teefy (1927) 27 S.R. (NSW) 301. Claims for damages for loss of publicity are another example of cases of inherent difficulty in assessing the plaintiff's loss with any approach to certainty …"

Later (at p. 242) he said:

"It all depends on the circumstances.  Where a vessel is damaged by   negligence and there was evidence that it was impossible to make a   reasonably accurate estimate of the cost of repairs, the Full Court of   Queensland upheld a direction that in estimating the cost of repair the jury                    must do its best on what seems to have been the exiguous material before   it:  Wheeler v Riverside Coal Transport Co Pty Ltd (1964) Qd.R. 113. The plaintiff may have been fortunate in the briefly noted case of Bovet v   Walker (1917) 62 Sol. Jo. 104 where no evidence to enable the diminution             in value to be quantified seems to have been led; I should have thought that   expert evidence would have been available and should have been called."

Still later (at p. 243):

"There is no rigid dividing line between cases in which guess work is   permissible in assessing damages and cases in which it is not.  The   borderline between guesswork and rational assessment is itself indistinct as                is the line between evidence that is 'precise' (the Permanite case dictum)   and evidence that is not."

1. I identify two difficulties with the evidence called in relation to this aspect of the damages.

1. First, it was apparent from the evidence of Mr Condon that he and Mr Pimble (the proprietor of A H Pastoral Co Pty Ltd) were friends and enjoyed a close working relationship.  Where a claim of this sort is made and it is admitted that no actual payment is made but rather that some sort of “contra” arrangement between the parties has occurred, I would have thought that the minimum evidence that would be produced would include evidence from the recipient of the benefit.  As I have said, the absence of such evidence is simply unexplained but has a significant effect on the weight to be given to the evidence which was produced[2].

   [2] Jones v Dunkel  (1959) 101 CLR 298

1. Secondly, it seems that the estimate of an appropriate weekly rate for the hire is based entirely on inadmissible hearsay evidence obtained by Mr Condon from an organisation called "Rentco". 

1. It was clear on the evidence that A H Pastoral Co Pty Ltd were not in the business of renting vehicles and it seems that Mr Pimble simply accepted the information passed to him by Mr Condon.

1. In my opinion, there is no admissible evidence as to what is a reasonable rate for a replacement vehicle.

1. Counsel for the Plaintiff accepted that it was the Plaintiff's obligation to prove not only the loss but that the amount claimed was a reasonable amount.

1. I find it impossible to conclude on the evidence before me that the rate claimed was a reasonable rate.

1. For those two reasons, I find myself not satisfied that the Plaintiff suffered loss quantified in paragraph 11(d) of the further amended Statement of Claim and I do not make any allowance for damages under that heading.

1. It seems to me that while it is likely that the plaintiff did suffer some loss the case is not one in which guesswork is permissible in making an estimate.

1. I was advised after the hearing concluded that the parties had agreed that interest at 5.5 % should be allowed on any amounts awarded and that the calculation should be from the date of the accident until judgment except in the case of the replacement vehicle claim where the commencement date should be the 10^th November 2008.

1. There will accordingly be judgment for the Plaintiff in the sum of $116,812.52, comprising $98,318.76 for claim and $18,493.76 for interest.

1. The Defendants counterclaim is dismissed.

1. I will hear submissions as to costs.