Kaup v Breen & Duggan (No 2)
[1992] TASSC 122
•15 October 1992
Serial No B45/1992
List “B”
CITATION: Kaup v Breen & Duggan (No 2) [1992] TASSC 122; B45/1992
PARTIES: KAUP, Arvo
v
BREEN, John Patrick
DUGGAN, Rory (No 2)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO: LCA16/1992
DELIVERED: 15 October 1992
HEARING DATES: 25 June, 5 October 1992
JUDGMENT OF: Zeeman J
CATCHWORDS:
Judgments and orders—In general—Reasons for judgment—Findings of fact—Sufficiency thereof.
REPRESENTATION:
Counsel:
Appellant: R E Sugden
First Respondent: D Smith
Second Respondent: S C Chopping
Solicitors:
Appellant: Finlay Watchorn
First Respondent: Archer Bushby
Second Respondent: Stephen Chopping
Judgment Category Classification:
Court Computer Code:
Judgment ID Number: B45/1992
Number of paragraphs: 15
Serial No B45/1992
List "B"
File No LCA 16/1992
ARVO KAUP v JOHN PATRICK BREEN and RORY DUGGAN (No 2)
REASONS FOR JUDGMENT ZEEMAN J
15 October 1992
I am determining two appeals from orders made by Mr Commissioner Bryan in the Court of Requests at Hobart in an action in which the first respondent, as plaintiff, sued the appellant and the second respondent, as defendants, for damages allegedly suffered by him as a result of the negligent driving of each of the appellant and the second respondent. Each of the appellant and the second respondent served a co–defendant notice on the other of them. The action was heard by the learned Commissioner on 26 March 1992 when he found that the appellant had been negligent and that the second respondent had not been negligent. The quantum of damages having been agreed, his Honour directed that judgment be entered for the first respondent against the appellant in the agreed amount. By the first appeal, the appellant appeals against that judgment. Subsequently the learned Commissioner dismissed the co–defendant proceedings which the appellant had taken against the second respondent. The second appeal is against that order of dismissal. Each notice of appeal also seeks to have set aside consequential orders which were made in relation to costs.
Relevant undisputed facts appear to be as follows. On 9 August 1988 the first respondent resided at 75 Beach Road, Kingston and was the owner of a Toyota motor vehicle. At about 8.00pm on that day that vehicle was parked in Beach Road alongside the kerb facing in the general direction of Kingston Beach outside the first respondent's house. At that time the appellant resided at 73 Beach Road. He drove a motor vehicle from the direction of Kingston Beach along Beach Road. When he was in the vicinity of his house he commenced to effect a manoeuvre which may have been a U–turn or a three point turn. The precise nature of the manoeuvre is of significance and I will refer to that further in due course. At about the same time, the second respondent was driving his motor vehicle in the opposite direction along Beach Road towards the area where the first respondent’s vehicle was parked. Had the second respondent continued along Beach Road he would have passed Nos 77, 75 and 73 Beach Road in that order. The second respondent's vehicle came into collision with the first respondent’s parked vehicle which was then unattended. The first respondent sued each of the appellant and the second respondent upon the basis that the negligence of each of them was causative of that collision.
Extensive particulars were provided of the negligence alleged against each of the appellant and the second respondent. It is unnecessary to reproduce those particulars in full. What was alleged against the appellant was that he executed a U–turn, or alternatively that he reversed his motor vehicle onto Beach Road, in circumstances which would lead the second respondent to take evasive action, that the second respondent took such evasive action and that in the course of that the second respondent's motor vehicle collided with the first respondent’s motor vehicle. As against the second respondent, it was alleged that he drove at an excessive speed, that he failed to take the appropriate evasive action to avoid a collision and that he failed to brake sufficiently, or at all, so as to avoid a collision. The particulars of negligence alleged by the appellant against the second respondent in the appellant's co–defendant notice largely reproduced the particulars of negligence alleged by the first respondent against the second respondent in the grounds and particulars. One additional particular of negligence was pleaded in the co–defendant notice, but that was unsupported by any evidence and may be ignored.
On the facts of this case it seems to me that there were two critical matters as to which it was incumbent upon the learned Commissioner to make findings of fact, namely the nature of the manoeuvre executed by the appellant and the speed at which the second respondent’s vehicle was being driven. In the circumstances of this case it was the clear duty of the learned Commissioner to articulate the issues, to make findings of fact thereon and to state his reasons for such findings (see eg Stojkovski v Fitzgerald [1989] WAR 328).
As to the nature of the manoeuvre, the only evidence came from the appellant and the second respondent. The appellant's evidence was to the following effect. He had been at Kingston Beach exercising his dogs. At the relevant time he was returning home and had his dogs in the vehicle. It was his intention when reaching his house to drive past it for a short distance and then to execute a U–turn and park his vehicle immediately in front of a vehicle which was parked outside his house. When he reached the point from which he intended to execute the turn, he bought his vehicle to a stop against the gutter. He looked ahead and behind and saw nothing. He then commenced a U–turn, intending to execute it in one manoeuvre. When about three–quarters of the way through the turn he heard a bang, which was in fact produced by the impact between the respondents’ vehicles. The second respondent gave evidence of first seeing the appellant's vehicle when it was turning into the driveway of 77 Beach Road. He assumed that the appellant’s vehicle would go into the driveway, but nevertheless he took his foot off the accelerator causing it to slow a little. The next thing that occurred was that the appellant reversed his vehicle back onto the roadway. The second respondent applied the brakes and swerved to the left to avoid the appellant's vehicle, in the process of which he collided with the first respondent’s vehicle which he said was closer to him than the appellant's vehicle. If that was so the second respondent may have been in error when he said that the appellant turned into the driveway of 77 Beach Road or the first respondent’s vehicle may have been parked some distance from his house. He said that he could not swerve to the right as another vehicle was approaching from the opposite direction.
There was no precise evidence as to the distance between the point where the appellant was executing his manoeuvre (whatever was its nature) and the point on Beach Road where the second respondent would first have been in a position to see the appellant's vehicle. It was somewhere between the point of impact and the junction of Beach Road with Roslyn Avenue. The undisputed evidence was that the distance between the point where the appellant was executing his manoeuvre and that junction was some 260 metres. It was put to the second respondent that the point at which he would first have been able to see the point on the road where the appellant was making his manoeuvre was when he was some 200 metres away. The second respondent did not dissent from that proposition but did not adopt it. There was no other evidence of that distance, although the photographs in evidence suggest that 200 metres may well have been a reasonable estimate.
If the appellant was engaged in making a U–turn in one manoeuvre at the time his vehicle first came into the line of vision of the second respondent, and if at that point some 200 metres separated the two vehicles, it might be thought that the second respondent ought to have been found to blame for the collision to a significant degree. Nevertheless, had the learned Commissioner considered the question it seems that the evidence inevitably would have led him to the conclusion that he ought to reject the proposition that if the appellant was engaged in executing a U–turn that the second respondent’s vehicle was not in sight when the appellant commenced to make that turn. The appellant's evidence was that he heard the sound of the impact before completing his U–turn. It is inconceivable that in the time that it took the appellant to partially execute a U–turn the second respondent’s vehicle travelled a distance of some 200 metres or anything like that distance. If at the time that the appellant's vehicle first was able to be seen by the second respondent it was in the process of making a right hand turn into a driveway and if at a time subsequent to that he reversed his vehicle back on to the roadway (at a time when the second respondent’s vehicle must have been very much closer to it than 200 metres) the appellant might be considered to have been wholly, or at least, very significantly to blame.
There was evidence relating to the speed at which the second respondent was driving his motor vehicle. The second respondent's evidence was that he was driving at some 50 kmh. There was other evidence before the learned Commissioner as to the existence of skid marks (which his Honour found were caused by the second respondent’s vehicle whilst its brakes were being applied) which, if accepted, might have led the learned Commissioner to the conclusion that the second respondent's vehicle was being driven at a speed in excess of 75 kmh. True it is that there were certain unsatisfactory features of attending the evidence of skid marks, but nevertheless it was incumbent upon the learned Commissioner to carefully evaluate all the evidence relevant to the issue of speed and to make such findings of fact as were appropriate upon that evidence. That does not mean that the learned Commissioner was required to find that the second respondent’s vehicle had been driven at a particular speed. It did require him to make findings as to the relevant primary evidence going to this issue and then to express his ultimate conclusions, to the extent that he was able, as to the speed at which the second respondent's vehicle was being driven. The learned Commissioner proceeded upon the basis that a speed limit of 60 kmh applied in the relevant area (as to which there was evidence), but that even if the second respondent’s vehicle had been driven at 75 kmh then that could not have constituted negligence on the part of the second named respondent in the circumstances. In proceeding upon that basis the learned Commissioner erred. If the second respondent's vehicle had been driven at 75 kmh, then that speed undoubtedly was excessive, and might well have constituted negligence which was causative of the first respondent’s damage.
The learned Commissioner was required to make findings of fact as to the nature of the manoeuvre being executed by the appellant and as to the speed at which the second respondent's vehicle was being driven because those matters were primarily determinative of whether negligence had been established against each of the appellant and the second respondent and, if it was established against both, the proportions in which ultimately they ought to bear the first respondent’s damage. The evidence at least appears to admit to each of the following conclusions as to the facts:
(a)that the appellant executed a U–turn, commencing the turn whilst the second respondent's vehicle was approaching at a proper speed and when it would have been seen by the appellant had he been keeping a proper lookout;
(b)that the appellant executed a U–turn, commencing the turn whilst the second respondent’s vehicle was approaching at an excessive speed and when it would have been seen by the appellant had he been keeping a proper lookout;
(c)that the appellant turned his vehicle into a driveway, commencing the turn whilst the second respondent's vehicle was approaching at a proper speed, that the appellant’s vehicle was first capable of being seen, and in fact was seen, by the second respondent whilst the appellant was executing that turn and that the appellant then reversed his vehicle back on to the roadway;
(d)that the appellant turned his vehicle into a driveway commencing the turn whilst the second respondent's vehicle was approaching at an excessive speed, that the appellant’s vehicle was first capable of being seen, and in fact was seen, by the second respondent whilst the appellant was executing that turn and that the appellant then reversed his vehicle back on to the roadway.
Each set of conclusions gives rise to different considerations. Each is capable of giving rise to different ultimate conclusions as to negligence. The learned Commissioner found it unnecessary to make findings of fact on the issues which distinguishes each set of possible conclusions from the others of them. In concluding that this was unnecessary the learned Commissioner erred because it put him in the position of determining the issue of negligence without findings of fact directly relevant thereto.
The learned Commissioner proceeded upon the basis that whatever manoeuvre was being executed by the appellant it was of a type which required the appellant to take great care because of its inherent potential danger to other road users, that the fact that the appellant did not see the second respondent's vehicle indicated a lack of care because that vehicle must have been in view at the time the manoeuvre commenced, and that in that state of affairs the appellant was solely liable even if the second respondent had been travelling as fast as 75 kmh. Except for the learned Commissioner’s view as to the irrelevance of the speed of the second respondent's vehicle (which was erroneous) I do not disagree with that general approach. If the appellant commenced a U–turn or reversed on to the roadway at a time when the second respondent’s vehicle was seen to be approaching, then it is difficult to resist the conclusion that the appellant was negligent. At the same time, if the second respondent was then approaching at a speed of 75kmh, driving at that speed would also suggest negligence on his part. An examination of the photographs as to the nature and width of the road and indicating that it was in a built–up area, suggest that a speed of 75 kmh was quite excessive even in the absence of a speed restriction of 60 kmh. There was express evidence that the road conditions were such that moderate speed was called for. The fact that the accident occurred after dark also leads to that conclusion. The second respondent could hardly be exculpated upon the basis that he was acting in the agony of the moment if he put himself in that position by driving his motor vehicle at an excessive speed.
It follows that the learned Commissioner's conclusion that the collision was the result solely of the negligence of the appellant cannot stand. Nevertheless, counsel for the first respondent has submitted that the judgment for his client against the appellant ought not to be disturbed because on any view of the evidence a finding of negligence against the appellant was inevitable. He relies, in particular, upon the appellant’s own evidence that the collision occurred at a time whilst the appellant was still in the process of executing a U–turn, making it inevitable that when the appellant commenced that U–turn (if that is what he did) the second respondent's motor vehicle must have been in view.
The conclusions which I have expressed primarily relate to the learned Commissioner’s conclusion that negligence against the second respondent had not been established. The learned Commissioner's conclusion that when the appellant commenced his manoeuvre he would have seen the second respondent’s vehicle had he kept a proper lookout was a proper conclusion and inevitable having regard to the state of the evidence. There was no suggestion in the evidence that the second respondent's vehicle was driven at such a high speed, or even capable of attaining such a high speed, that it would not have been seen by the appellant when he commenced his manoeuvre had he kept the proper lookout which he was required to keep. No error has been demonstrated in the way in which the learned Commissioner concluded that the appellant had been negligent. For the reasons which I have expressed, I do conclude that the learned Commissioner erred in the way in which he came to the conclusion that it had not been established that the second respondent was negligent.
Although in those circumstances it appears that the Rules of the Supreme Court, O76, r54, would nevertheless enable me to order a new trial between all parties and on all issues, it is inappropriate that I do so. There is no reason why the first respondent ought to be put to the expense of a new trial when, on the material before the learned Commissioner, he properly concluded that the appellant had been negligent in circumstances where that was the only reasonable conclusion that his Honour could have reached. The dismissal of the co–defendant proceedings taken by the appellant cannot stand. It is not possible for me to determine what order ought to be made therein. A determination of those proceedings requires that there be findings of fact on matters in dispute between the appellant and the second respondent. Those findings of fact require conclusions as to the credit of witnesses on both sides. Not having seen or heard those witnesses I do not feel able to resolve matters of credit. As the learned Commissioner has now retired from office a new trial of the co–defendant proceedings is required.
Accordingly, the appeal by the appellant against the judgment against him in favour of the first respondent will be dismissed. The appeal by the appellant against the order dismissing the claims made by him by his co–defendant notice and the orders for costs in favour of the second respondent in the action and in the co–defendant proceedings will be upheld and I will order that those co–defendant proceedings be reheard by another commissioner of the court. The costs of the action as between the appellant and the second respondent and the costs of the co–defendant proceedings will be in the discretion of the commissioner rehearing the co–defendant proceedings.
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