Hampson v Smith

[1988] TASSC 29

[1988] TASSC 29

CITATION:              Hampson v Smith [1988] TASSC 29; A18/1988

PARTIES:  HAMPSON, Ricky
  HAMPSON, Graeme Bruce
  v
  SMITH, Neville Graeme

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 6/1988
DELIVERED ON:  5 July 1988
JUDGMENT OF:  Wright J

Judgment Number:  A18/1988
Number of paragraphs:  16

Serial No 18/1988
List "A"
File No LCA 6/1988

RICKY HAMPSON and GRAEME BRUCE HAMPSON
v NEVILLE GRAEME SMITH

REASONS FOR JUDGMENT  WRIGHT J

5 July 1988

1. This is an appeal from a decision of a Commissioner of the Court of Requests sitting in Burnie on 10 February 1988. The present appellants were defendants in an action arising out of a collision between a Holden motor vehicle driven by the respondent, and a low loader owned by the second appellant, and at the relevant time, operated by the first appellant, on the 14 May 1983. The respondent was the plaintiff in those proceedings. I will refer to him hereafter as "the plaintiff".

1. At approximately 5.30pm on that date, the second appellant (to whom I shall hereafter refer as "the defendant") was in the process of loading an excavator onto a low loader adjacent to the property of a Mr R J Jaffray which is situated beside the Natone Road near Burnie. The learned Commissioner before whom the trial took place, described the events of the day and his inferences therefrom, in the following terms:

"The defendant transported the excavator to the property on a low loader and he drove off the Natone Road along a driveway to Mr Jaffray's house which is situate about seventy yards from the road. The driveway goes downhill to the house where there is an area for the turning of vehicles. The defendant unloaded the excavator at that area and on the completion of his work he drove it back to the low loader intending to load it onto the low loader in the driveway. However, owing to the wet state of the ground the defendant was unable to turn his prime mover and low loader around so as to face the road. He then left the excavator on the ground and reversed the prime mover and low loader up the driveway and onto the Natone Road. He drove south on the road until he was able to turn his vehicle. He returned and parked his vehicle on the left hand side of Natone Road facing north at the entrance to the driveway with the right hand portion of the vehicle standing on the bitumen surface of the road. The low loader is approximately eight feet in width and one half of the low loader was on or over the bitumen surface of the road.

Before the defendant reversed his vehicle onto the road it was agreed, or clearly understood, between the defendant and Mr Jaffray that the defendant on returning with his vehicle would reverse it down the driveway so as to load the excavator onto the low loader on level ground near Mr Jaffray's house. The defendant says that he did not reverse down the driveway because he saw that, in his absence, the excavator had been driven to within twenty yards or so of the road and that it was standing on sloping ground which was unsuitable for the loading operation. Mr Jaffray says he did drive the excavator after the defendant had reversed out of his driveway but only for a distance of ten feet or so in order to put it in a suitable position for loading on level ground. I accept Mr Jaffray's evidence on this point in preference to the evidence of the defendant.

After the defendant had parked his vehicle on the road he walked to the excavator and drove it up to the road and he was completing the loading when the plaintiff drove his vehicle in a northerly direction and collided with the rear of the low loader and part of the excavator. The time period between the parking of the low loader and the collision was between five and ten minutes. At the time of the collision it was dusk or nearly dark, the road was wet and it was drizzling with rain.

I find that the plaintiff drove around a bend and onto the straight section of road in a northerly direction leading to the entrance to Mr Jaffray's driveway at about 70kph. I also find that the distance from the bend to the entrance was about 140 yards.

In order to lower the ramps of the low loader for the loading operation the tail light assembly of the low loader was removed. I find that the headlights of the prime mover, which was facing north, were illuminated as were the marker lights on the sides of the low loader and the marker lights on the top of the cabin of the prime mover. I also find that there was a light lit in the cabin of the excavator and a light lit on the boom of the excavator. The light on the boom was shining in the direction of the plaintiff's motor car but was directed towards the ground.

The plaintiff says that as he came around the bend he saw a bright white light above the edge of the bitumen on his left hand side at the entrance to Mr Jaffray's driveway. He was surprised to see the light some 12' to 15' above the ground and he thought that Mr Jaffray had attached a spotlight to a telephone pole at his entrance. He saw no other lights and continued to drive along the road with his attention on the white light but without lessening his speed and with his headlights on full beam. He saw the low loader when he was about 15' from it whereupon he swerved to his right but he was unable to avoid the collision.

The bitumen surface of the road at Mr Jaffray's entrance is six yards wide or a little less, so the low loader was occupying nearly one half of the side of the road on which the plaintiff was driving his car. If the plaintiff had seen the low loader earlier than he did he would have needed to drive partly onto his incorrect side of the road in order to avoid it. There is evidence that one or more vehicles had driven north past the low loader shortly before the accident. The light which the plaintiff saw was not, of course, a light affixed to a telephone pole but one of the lights on the low loader; probably the light on the boom.

The plaintiff says that he did not see any of the marker lights on the low loader or prime mover.

The defendant says that he saw no risk in parking on the road as he did. In evidence he says, 'I intended to go back down there – just as easy – I thought it would be safer. I loaded on the road as the excavator had been moved.' As he put it, 'I didn't think about the risk'. He says that he parked the low loader on the safest place to park on the road. On the evidence the defendant used the available four feet of gravel verge but on Mr Jaffray's evidence there were a few feet of grass verge which was level and on which the low loader could have been parked so as to be entirely off, or further off, the bitumen surface of the road. I accept Mr Jaffray's evidence as to this.

The defendant says that he asked Mr Jaffray to stand on the road and keep an eye out for traffic and that as far as he knows he did so. Mr Jaffray does not agree that he was so asked. The defendant agrees he carried no warning signs or triangles to place on the road. I find that Mr Jaffray did not stand on the road to warn any approaching traffic of the presence of the low loader.

I find that there was nothing to prevent the defendant reversing the low loader down the driveway in order to load the excavator onto the low loader off the road. Instead the defendant parked the low loader on the road, occupying four feet of the bitumen surface when it could have parked further off the road. Then, in dusk or nearly dark conditions and drizzling rain, the rear lights of the low loader were removed to enable the excavator to be loaded onto the low loader. The marker lights, which I find were illuminated, were small and the white lights on the excavator were higher above the ground than lights which a driver would expect to see at that point on the road.

In my opinion the defendant was negligent in loading the excavator onto the trailer on the road as he did without any warning lights, except the small marker lights and the lights on the excavator. It would have been more prudent for the defendant to have carried out the loading operation in the driveway as he had intended. It would also have been more prudent for the defendant to have parked the low loader further off the road than he did. The low loader was a largely unlit obstruction on the road left there for several minutes.

The defendant's negligence was causative of the accident. But if the plaintiff had kept a proper lookout he would have seen the low loader earlier than he did and he could probably have avoided the collision.

The primary cause of the collision was the defendant's action in carrying out the loading operation on the road but I find that the plaintiff also was negligent in failing to keep a proper lookout."

1. Upon the basis of these findings, the learned Commissioner apportioned liability as to 80% to the defendant and as to 20% to the plaintiff. In accordance with that finding, he entered judgment in the plaintiff's favour against both defendants for the sum of $3,744.00 being 80% of the plaintiff's agreed damages of $4,680.00.

1. In the present appeal it is contended that the learned Commissioner erred in several respects, both in law and in fact, but having considered carefully the submissions made by learned counsel for the defendant, and bearing in mind the function of this Court in reviewing those findings, I am bound to say that none of the defendant's complaints of error have been sustained. As I said in Austin v Connaire 30/1987:

"The nature of an appeal to this court from the Court of Requests has been discussed in many cases. It is an appeal stricto sensu (Foster v Simpson 21/1965 Burbury CJ; Kelly v Kernan 100/1966 Crisp J) but the distinction between such an appeal and one by way of 'rehearing' has no practical significance in the present circumstances particularly as no attempt has been made to persuade me to depart from the essential findings of fact made by the learned Commissioner or to impugn his assessment of the credibility of the parties. I am required to form my own judgment on matters of fact, but in doing so I must bear in mind the undoubted advantages which the learned Commissioner enjoyed in hearing the oral evidence given before him and in following the progress of the case, (Wiggans v Tasmanian Breweries Pty Ltd 45/1975 Nettlefold J and Wilton v Banks 27/1978 Green CJ). In addition the appellant carries the onus of persuading me that the learned Commissioner came to a wrong conclusion (Kelly v Kernan (supra))."

1. The findings of the learned Commissioner which were challenged by Grounds 1 and 2 were characterized as findings of law and fact, but were essentially findings of fact. The findings attacked in Grounds 3 and 7 were findings of fact alone. The other Grounds (4, 5, 6, 8 and 9) were specific challenges to the learned Commissioner's findings as to causation and contributory negligence and were argued within a general framework of submissions rather than as individual points. I will deal firstly with Ground 7.

1. It may well be that the learned Commissioner's finding that the plaintiff was travelling at only 70 kmh as he approached the scene of the accident, displayed a somewhat unusual reliance upon an estimate given by a witness who had previously estimated his speed in the vicinity of 80 kmh. Nonetheless, the plaintiff was accepted by the learned Commissioner as a credible witness and the explanation that he gave for changing his estimate does not appear to me to be unconvincing; but in any event, even if the plaintiff had been travelling at 80 kmh, I think that in the circumstances of this case, no significant difference would have been made to the result. It is true that it was nearly dark, the road was wet, and it was drizzling with rain. But this was a country road, apparently of good quality and the plaintiff was not in a restricted speed area. Until immediately before the accident, he had no reason to anticipate the existence of a poorly lit vehicle occupying a substantial part of the lane in which he was travelling. In these circumstances, I would be quite unable to find that a speed of 80 kmh on the part of the plaintiff, should in any way be characterized as excessive or negligent.

1. Indeed, as I read the learned Commissioner's reasons and compare them with the evidence, the only area in which it appears to me that he misinterpreted the evidence given before him, is when, with apparent acceptance of the evidence referred to, he said :

"The defendant says that he saw no risk in parking on the road as he did."

1. I will deal with this observation as I consider Grounds 1 and 2.

1. In the course of cross–examination by Mr Mackey, the defendant gave the following evidence:

"Question:Why did you originally intend to load down there (at the foot of Mr Jaffray's driveway) rather than load on the roadway?

Answer:Well I was down there. It saved walking the machine back to the road.

Question:Yes but you intended to go back down there once you had brought the truck out hadn't you?

Answer:Mm.

Question:Why were you going to take the truck back down there rather than, why did you intend to go back down there rather than to load on the roadway?

Answer:Well probably just as easier to load down there as it is on the road way.

Question:Didn't you think it would be safer down there?

Answer:Yeah I did.

Question:It wouldn't involve any risk to traffic would it?

Answer:No.

.......................................................

Question:So you thought it would be safer to load down there?

Answer:Originally yes.

Question:So in other words you knew that there was a bit of risk about loading on the roadway didn't you?

Answer:Well I didn't think about it really.

Question:And in fact Mr Jaffray had spoken to you about loading down the driveway hadn't he?

Answer:Not that I recall.

Question:And you had answered him that it would be alright it will only take a minute something to that effect hadn't you?

Answer:I can't recall.

Question:Well do you deny that conversation?

Answer:I can't recall having that conversation with Mr Jaffray.

Question:So it could have occurred?

Answer:It could have occurred yes."

1. In conjunction with this passage of evidence, the evidence of Mr Jaffray may be considered. It is plain from the learned Commissioner's findings that generally speaking, he was prepared to accept Mr Jaffray's evidence, and having read that evidence myself, I see no reason to come to a contrary conclusion. Mr Jaffray made it plain that he had suggested to the defendant that for the purpose of loading the low loader it should have been driven right off the road onto the grassy verge, and that this suggestion was made as a consequence of a certain amount of apprehension that he (Jaffray) felt concerning other traffic using the road. In these circumstances, it appears to me that the learned Commissioner would have been well justified in making a finding that the defendant actually adverted to and appreciated that in carrying out the operation as and when he did, he was creating a risk for other road users. This may well be a factor which, though unexpressed by the learned Commissioner operated upon his mind when he came to the task of apportionment, as it is quite plain that in this difficult process the relative culpability of the joint tortfeasors involved may be taken into account (Smith v McIntyre [1958] Tas SR 56). At all events, the findings of the learned Commissioner which were challenged in Grounds 1 and 2 were, in my view, fully justified.

1. On the appeal, counsel for the defendant argued that there was no basis upon which the learned Commissioner could properly have found that his client was guilty of contributory negligence causative of the accident. Relying on Alford v McGee (1952) 85 CLR p 437, he argued that this was a case of "last opportunity", ie the plaintiff was the master of the situation and could and should have avoided the accident by the exercise of due care on his part.

1. I do not intend to embark upon, or rekindle the debate in relation to the "last opportunity" rule, but it seems to me to be an artificial and strained doctrine to apply in the circumstances which existed in this case. Certainly the defendant's low loader was stationary at the time that the accident occurred and it is equally plain that once the plaintiff's vehicle hove into view, there was nothing that the defendant could effectively do to avoid the accident. But that is not the real question. It comes down to whether or not the defendant's negligent conduct can be fairly regarded as causative of the damage that ensued. In my opinion, it is quite plain that it was and I reject the appellant's initial submission to the contrary.

1. The only remaining contention of substance is that the learned Commissioner erred in making the apportionment that he did. An apportionment of this kind quite clearly involves elements of discretion and it is only when a plainly unreasonable or unjust division of responsibility has resulted that an appellate court is justified in intervention. It is possible, but by no means certain, that if I had been dealing with this matter at first instance, I may have apportioned responsibility somewhat differently. I am mindful of course that other vehicles travelling on this stretch of highway shortly before the accident in question, were able to pass the defendant's vehicle without apparent difficulty. However, it was becoming progressively darker all the time so this factor cannot be given undue emphasis. It is also apparent that there were no oncoming vehicles approaching from the opposite direction, so the plaintiff's attention was not diverted by other moving vehicles and his vision would not have been affected by oncoming headlights. His own car's headlights were on full beam and his speed was moderate. These factors have caused me some hesitation in accepting the learned Commissioner's apportionment, but after careful consideration, I remain unpersuaded that he was wrong. At the time of the collision, the road was wet and it was drizzling with rain. The defendant's vehicle was not displaying tail lights and although there were some lights displayed, they were not so bright or so placed as to give a clear indication as to what was happening on the road surface, or that there was a vehicle occupying half of the left traffic lane. The plaintiff did not see the so called marker lights (which I take to be what are commonly referred to as "width" lights) on the low loader, and it is entirely possible that these were obscured from his view in some way during the greater part of the time that his vehicle and the low loader were intervisible.

1. The boom light on the excavator, far from providing a warning, was so situated as to cause some confusion to oncoming motorists. The plaintiff said that he thought that what he saw was a light which Mr Jaffray had affixed to the pole outside his home, and, on the evidence, it does not seem that this was an unreasonable impression for him to have obtained. I do not overlook the other lights on and in the defendant's vehicles which were discussed at some length with learned counsel during the course of argument. However, taking all of these factors into account, and mindful of my own role in the appellate process, I remain unpersuaded that the learned Commissioner was wrong in any of the respects attributed to him in Grounds 3, 4, 5, 6, 8 and 9.

1. This was not a case of a vehicle which had broken down unexpectedly on the side of the road, nor was it a case in which the defendant's only realistic option was to load his vehicle from a position in which it was partly obstructing the highway. It was rather a case in which an obstruction was created in circumstances in which the risk was clearly foreseeable, and an alternative course of conduct should have been readily apparent. In such circumstances, notwithstanding the plaintiff's clear failure to keep a proper lookout and take timely avoiding action, thus rendering him partly responsible for the occurrence, I am unable to say that an apportionment resulting in the defendant bearing four fifths of the resultant loss is inequitable or unfair. The defendant created the dangerous situation and in my opinion, should bear the greater share of responsibility. (Van Essen v Lee 97/71; A V Jennings Construction Pty Ltd v Maumill (HC) 30 ALJ 100).

1. Accordingly, the appeal will be dismissed with costs.