Hammond v Pascoe

[1992] QCA 380

IN THE COURT OF APPEAL	[1992] QCA 380
QUEENSLAND

Appeal No. 1599 of 1986

BETWEEN:

PETER GERRARD HAMMOND

(Plaintiff) Appellant

- and -

MARK EDWARD PASCOE

(First Defendant)

- and -

BRISBANE CITY COUNCIL

(Second Defendant) Respondent

JUDGMENT OF FITZGERALD P.

Delivered the Ninth day of October, 1992

The circumstances are set out in the joint Judgment of

McPherson JA and White J. and I need not repeat them.
However, I disagree with their Honours' conclusion. My
reasons may be briefly stated.

There was no evidence that either vehicle was travelling at an excessive speed, but it is clear the appellant's motor cycle was travelling more quickly than the respondent's motor vehicle, which was travelling slowly. The first respondent was aware both of the slow speed at which he was travelling and that the appellant's motor cycle was following and would inevitably catch up with his motor vehicle. It was also obvious that the road was straight and suitable for overtaking, with appropriate lines marked on the road.

In such circumstances, it seems to me that it was grossly negligent for the respondent to turn right without checking whether another vehicle was overtaking or about to do so, and that this negligence was not significantly reduced by the respondent activating his right traffic indicator a relatively short time before the commencement of the turn. In the absence of more precise findings as to when that occurred or where the appellant was at the time, it is difficult to understand the basis for finding the appellant had an opportunity to observe the traffic indicator and that, as he did not do so, he must have failed to keep a proper lookout. However, I respect the finding made by the trial judge against the appellant on this point.

As their Honours have correctly pointed out, this Court should be slow to interfere with the trial judge's apportionment of blame for the collision. Nonetheless, His Honour's own findings seem to me clearly to indicate that the respondent bears a far greater responsibility for the accident than the appellant. In my opinion, 80% of the fault should be attributed to the respondent and 20% to the appellant.

The appeal should be allowed and the cross-appeal dismissed. The judgment below should be set aside and, in lieu thereof, there should be judgment for the appellant for 80% of the damages assessed ($417,745.30), that is, $334,196.24. The respondent must pay the costs, including any reserved costs, of the trial and this appeal, to be taxed.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 1599 of 1986

Before the Court of Appeal
The President
Mr. Justice McPherson

Justice White

BETWEEN:

PETER GERRARD HAMMOND

(Plaintiff) Appellant

- and -

MARK EDWARD PASCOE

(First Defendant)

- and -

BRISBANE CITY COUNCIL

(Second Defendant) Respondent

JUDGMENT OF FITZGERALD P.

Delivered the ninth day of November, 1992

MINUTE OF ORDER: APPEAL AND CROSS APPEAL DISMISSED WITH

COSTS.

CATCHWORDS: Negligence. Apportionment of responsibility. Applicant/motor cyclist held two-thirds to blame for collision with motor vehicle attempting to execute u-turn - whether relevant respondent may have breached traffic regulations - whether trial judge over looked any feature of evidence he ought to have taken into account in apportioning blame.

Counsel:	Mr R.A.I. Myers for the Appellant Mr R.W. Trotter for the Respondent
Solicitors:	Messrs. Stephens & Tozer for the Appellant
Messrs. O'Mara Patterson and Perrier for the Respondent

Hearing date: 16th October, 1992
IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 1599 of 1986

BETWEEN:

PETER GERRARD HAMMOND

(Plaintiff) Appellant

- and -

MARK EDWARD PASCOE

(First Defendant)

- and -

BRISBANE CITY COUNCIL

(Second Defendant) Respondent

The President
Mr Justice McPherson
Justice White

Judgment delivered on the Ninth day of November, 1992. Reasons for judgment delivered by Mr Justice McPherson and Justice White jointly. The President dissenting.

APPEAL AND CROSS APPEAL DISMISSED WITH COSTS.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 1599 of 1986

BETWEEN:

PETER GERRARD HAMMOND

(Plaintiff) Appellant

AND:

MARK EDWARD PASCOE

(First Defendant) First Respondent

AND:

BRISBANE CITY COUNCIL

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A. AND WHITE J.

Delivered the Ninth day of November, 1992.

The appellant sustained serious injury when the Ducati motor cycle which he was riding came into collision with a Sigma station wagon driven by the first respondent, an employee of the second respondent. His wife was a pillion passenger on the motor cycle and she died as a consequence of injuries sustained in the collision. The learned trial judge concluded that the appellant was two-thirds to blame for the occurrence of the accident and the first respondent one-third to blame and apportioned the damages which he assessed accordingly.

The appellant appeals on numerous grounds but those pursued most extensively were that the learned trial judge, having found that the appellant was not fabricating his evidence, ought to have accepted his version of how the collision occurred and to have rejected that of the first respondent; that he was in error in concluding that there was no obligation in law upon a motorist about to execute a right-hand turn across a highway to check on the approach of a vehicle from his rear; and that he ought to have concluded that the first respondent was engaged in the execution of a U-turn, thereby requiring, according to regulation 35(3) of the regulations made pursuant to the Traffic Act 1949, that he give way to all other vehicles on the highway including the appellant's motor cycle.

The respondents cross appealed against the apportionment of negligence seeking a finding that the appellant was entirely to blame for the accident or, alternatively, that the apportionment be in a higher amount against the plaintiff than two-thirds on the ground that the learned trial judge ought not to have concluded that the right traffic indicator was activated by the first respondent only a relatively short time before the commencement of the turn.

The great difficulty in the case which was adverted to by the learned trial judge was that the appellant's version of events and the first respondent's version were irreconcilable.

The appellant's evidence was that he was travelling outbound along Samford Road at a speed not in excess of, or not very much in excess of, the 60 kilometre speed limit. The Ducati was a new acquisition and had differently positioned gears and brakes from the Japanese motor bikes that he was accustomed to riding. In evidence in chief the appellant said that he rounded a corner and noticed a car ahead of him parked over to the left side of the road and that its brake lights were on. He estimated that the distance which separated his motor bike from the car was about half a mile or 500 metres and, as he approached, the car went further to the left of the road, slowing down to about 5 kilometres per hour or less with brake lights on. He assumed that the driver of the car was stopping and so made a decision to overtake. He proceeded without slowing down noticing that the car was now partly off the bitumen surface and onto the gravel shoulder. As he commenced overtaking the appellant became aware that the car was about to execute a turn because it started to pull out from the left-hand side of the road. The appellant tried to avoid collision by going around the front of the car but came into collision with it on the front driver's side on the door and the wheel mudguard. Because he was unfamiliar with the foot controls of his bike, they being in a different position from the motor bikes which he was used to riding, although the appellant went to brake he believes that he put the clutch in first and then the foot brake having already operated the hand brake. The appellant stuck his left leg out to keep the car out of the way and then came off the bike. In cross-examination the appellant agreed that he could not have come around a corner immediately prior to seeing the car as the photograph shown to him depicted that there was a crest on the road some 200 metres from the place of impact which would have prevented any earlier view of the first respondent's motor vehicle. The appellant did not see an activated right indicator on the respondent's motor vehicle at any stage.

The first respondent's evidence was that he was returning home along Samford Road outbound when he realised that he had left his wallet at the Enoggera Reservoir where he had been working earlier in the day. Shortly before he reached the crest of the hill to which reference has been made, he decided that he needed to return and was looking for a convenient place to turn around. He was generally familiar with the area and knew that there was a street a little further on on the right-hand side of Samford road and decided to consider making a turn at that point. Just before he came over the crest, he looked in his rear vision mirror and saw the appellant's motor cycle approximately 300 metres behind. It appears that having decided to make a turn at the entrance to the street on the right (Claverton Street), he started to decelerate down the hill after coming over the crest. He applied his brakes about half way down the incline and applied the right indicator light prior to applying the brakes. He said that he remained on the roadway next to the centre line and denied that he was on the left side of the carriageway. He said that he proposed to turn across the mouth of Claverton Street on his right, pause to ascertain if it was safe to proceed and then continue back inbound along Samford Road. In cross- examination he also added that he thought that if circumstances required he might travel a short distance down Claverton Street before turning to continue in the manoeuvre to return back up Samford Road. He admitted that he had not checked his rear vision mirror after seeing the appellant's motor bike just prior to reaching the crest of the hill before he started upon his turn. The learned trial judge found that the collision occurred on the inbound side of Samford Road just after the first respondent commenced to turn. The photographs depict the motor bike lying beyond the car which is turned to the right some feet beyond the entrance to Claverton Street.

The appellant was not knocked unconscious by the impact, and was not considered to have suffered direct head injury, however, during the course of his hospitalisation he suffered from a fat embolism which caused diffuse brain injury. He was clinically unconscious for some days as a result of this but he himself believed that he was unconscious for a period of some eight weeks. Doctors Sale and Weidmann, both psychiatrists, called on behalf of the appellant, agreed that there is a recognised condition known to psychiatry as "reconstruction", whereby a person will replace an unacceptable recollection with something more palatable without consciously doing so. It was said by the experts that if a given version of events did not reconcile with what was known objectively to have happened, then it might well be the case that that person was engaged in reconstruction of the occurrence. Similarly a change in the several versions given of events might so indicate. Here it was proposed that the appellant felt some responsibility for the death of his wife in the accident and, accordingly, had unconsciously recalled the facts of the occurrence so as to diminish his responsibility for the accident.

His Honour the trial judge found on this point that:

"In my opinion there was a significant element of reconstruction in the account given by the plaintiff. This does not imply that he was fabricating evidence. The evidence of the medical practitioners about the processes that operate in a situation of this kind indicates why I have reached this conclusion. In the circumstances I will not treat the plaintiff's account of the accident as an accurate record."

Mr Myers on behalf of the appellant submitted that his Honour was not entitled to take this course because the appellant had not given two or more inconsistent accounts of what had occurred. That might well be so, but as the medical evidence indicated that was not the only basis upon which a reconstruction might have occurred. There was also other evidence which supported his Honour's conclusion that the appellant's recollection of what had occurred was unreliable for reasons that were entirely consistent with him attempting honestly to relate what occurred. There was evidence from the medical specialists that, whilst the appellant's memory might have been intact and continuous from the time of the accident to the administration of pethidine by the ambulance bearers, he was likely to be unreliable as to time and his recollection was more likely to be of the "snap shot" variety or that he would have "patchy" recall. The plaintiff's own evidence supported the conclusion that his recollection was unreliable. He said that when he first regained consciousness he did not recall anything about what occurred but when a friend visited him in hospital in Launceston (where he had been transferred from Brisbane) and mentioned the motor bike he started recalling what had occurred. He had absolutely no recollection of the impact itself, he admitted that he was not good at estimates of distances or time, but was adamant in his evidence that he recalled that the first respondent's vehicle was slowed right down, was to the left of the road with its brake lights on and that it was only then that he started to overtake. But at page 60 of the transcript of evidence the plaintiff was asked in cross-examination:

"When it first started to move in a turning direction, where were you positioned in relation to the centre line? -- I'm not positive about this, I don't think I can be positive about anything to do with this accident, but I am reasonably sure I was still on the left-hand side of the road."

It was thus entirely open on the evidence for his Honour to accept the concept of reconstruction and apply it to the appellant's evidence without necessarily being required to find that the appellant gave inconsistent versions. It was a medical explanation for a man who was apparently trying to be an honest witness giving evidence which his Honour did not accept. There was nothing else in the evidence which would suggest that the learned trial judge was in error in reaching the conclusion which he did as to how the collision occurred.

The appellant argued that the evidence was all in favour of an intention on the part of the first respondent to execute a U-turn and that if that evidence had been accepted by the learned trial judge he would necessarily have found complete negligence in the first respondent.

This was said to be because the traffic regulations require a driver engaging in a U-turn to give way to all other traffic. There were, without doubt, some differences in the first respondent's explanations as to his intention as to how he proposed to turn his car. But whether he intended to use the mouth of Claverton Street as part of his turning circle in the U-turn without stopping or whether he intended to pause there to check for inbound traffic, or whether, in reality, he had not thought through the entirety of his manoeuvre cannot, in our view, make any difference to the evaluation of the relative responsibilities of the appellant and the first respondent for the ensuing collision. It is well established that breach of a traffic regulation is no more than a piece of evidence which may establish want of care on the part of the person in breach, see Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 C.L.R. 438 at p. 461 and Tucker v. McCann [1948] V.R. 222 at p. 225.

It is plain that the driver of a vehicle executing either a U-turn or a right-hand turn in the circumstances of this case is obliged to signal his intention to all other users of the highway in sufficient time for them to take whatever action is prudent; to keep a look out for other users of the highway and to undertake the manoeuvre when it is safe to do so, but it is by no means every circumstance which will require a turning driver to await the passing of following traffic, see McKenna v. Houghton [1960] W.A.R. 104, because following traffic will be expected to pass on the left, if able to do so, or, noting the indicator to turn right, wait behind until the road ahead is clear.

Having rejected the appellant's evidence that the first respondent pulled to the right without warning after slowing almost to a stop on the left-hand verge of the road, his Honour, in our opinion, was entitled to take the view that the car had just commenced its right turn when the appellant's motor cycle, travelling at a substantially greater speed, collided with it on the right-hand side of the centre of the road. His Honour accepted that the first respondent had turned on his indicator prior to the collision. On the evidence he was entitled to do so. His Honour had a deal of not at all precise evidence as to when the indicator was turned on. The first respondent was not certain where Claverton Street was exactly and his best estimate was that it was activated about half-way down the slope just prior to braking but after deceleration had commenced. His estimate was 75 metres, the distance from the top of the crest to the impact point was 201 metres, but his Honour was entitled, as he said, to treat the evidence of the first respondent with some reserve and to conclude that the indicator was activated "but probably only a relatively short time before he began to execute the turn" and no error can be discerned in this finding.

His Honour rejected the submission for the appellant that the first respondent was about to execute a U-turn in one manoeuvre and therefore did not consider that the provisions of regulation 35(3) applied. He was entitled to conclude that the U-turn would not be completed without a pause notwithstanding that the first respondent's car came to rest some feet below the entrance to Claverton Street.

Even had he found that a U-turn properly so described was proposed, he would still have been entitled to consider the parties' relative responsibility for what occurred without being bound by the provisions of regulation 35(3).

His Honour found that the appellant was negligent in seeking to overtake the first respondent's car by passing to the right when the indicator was showing. The inevitable conclusion was that the appellant was for a very short period not paying sufficient attention to the first respondent's motor vehicle. As to any culpability in the first respondent, his Honour observed at p. 10:

"I would be loath to find that a driver of a motor vehicle who was about to execute a right turn and who had activated his indicator in good time and had positioned his vehicle appropriately on the carriageway was guilty of negligence if an unobservant or reckless following motorist collided with his vehicle, even if he had not checked in the rear vision mirror for following traffic."

That must be considered as no more than a reflection by his Honour. If, by checking in his rear vision mirror, a turning driver sees a following vehicle which is likely to collide with his vehicle if he persists in the proposed turn, then the better view must be, in an era of defensive driving, that he will do what is reasonable to avoid the collision. But it is clear that his Honour did not apply that observation to the matter before him for he went on to say:

"However in this case I am satisfied that the indication was given a relatively short time before the commencement of the turn and the vehicle had gone somewhat beyond the usual place for a turn. As the first defendant was aware of the presence (although not the precise location) of the motor cycle on the roadway behind him, and as it should have occurred to him that it would have been closing the gap between it and his vehicle because of his deceleration, it was appropriate for him to check where it was before he executed his turn."

The appellant has not raised in his grounds of appeal the appropriateness of the apportionment, nor has he sought to ventilate it in oral submissions, although the first respondent has done so.

The apportionment legislation gives a wide discretion to the judge entrusted with the original task of making the apportionment and, as the High Court observed in Pennington v. Norris (1956) 96 C.L.R. 10 at p. 16, much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable and it will be a rare case in which the apportionment made can be successfully challenged. There is nothing to suggest that the learned trial judge overlooked any feature of the evidence which he ought to have taken into account in apportioning the responsibility as he did.

The appeal and the cross appeal are therefore dismissed

with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 1599 of 1986
Brisbane
Before The President Mr. Justice McPherson Justice White
[Re: Hammond v. Pascoe & Anor.] BETWEEN:

PETER GERRARD HAMMOND

(Plaintiff) Appellant

AND:

MARK EDWARD PASCOE

(First Defendant) First Respondent

AND:

BRISBANE CITY COUNCIL

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A. AND WHITE J.

Delivered the Ninth day of November, 1992

Counsel:	Mr. R. Myers for the appellant Mr. R. Trotter for the respondents
Solicitors:	Stephens & Tozer for the appellant O'Mara Patterson & Perrier for the respondents

Hearing Date: 16.10.92