Kevin John Frankenfeld v Dianne Margaret Fox No. 4254 Judgment No. SCGRG 92/2695 Number of Pages 8 Negligence Apportionment of Responsibility and Damages
[1993] SASC 4254
•5 November 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ
CWDS
Negligence - apportionment of responsibility and damages - Negligence - collision - apportionment of responsibility - very high speed on the part of the appellant - respondent emerges from a side street on to a main road - apportionment in the light of the appellant's speed at 75/25 in favour of the respondent upheld - trial Judge made no finding about the amount of alcohol consumed by appellant nor of its effect on him - those findings should have been made but in the circumstances would not have affected the result. Kilminster v Rule (1983) 32 SASR 39, discussed.
HRNG ADELAIDE, 10-13 September 1993 #DATE 5:11:1993
Counsel for appellant: Mr S Walsh QC
Solicitors for appellant: Stratford and Co
Counsel for respondent: Mr M I Bell
Solicitors for respondent: Fairclough Dowd
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J This is an appeal by the defendant in an action for damages following a collision on the road. It is an "appeal against apportionment". There is no doubt but that each driver was guilty of lack of care which contributed to the collision and, therefore, to the damage. 2. The learned trial Judge correctly found that the defendant (appellant) had been guilty of negligence and that the plaintiff (respondent) had been guilty of contributory negligence. 3. The leaned trial Judge apportioned liability between the parties at 75/25 in favour of the plaintiff. The appropriate amount of damages had been agreed. The learned trial Judge, therefore, entered judgment for the plaintiff (respondent) for 75 per cent of that agreed amount. 4. It is important to note at the outset that the plaintiff alleged in her particulars of negligence that:-
"The defendant was negligent in that he:
(a) Drove at a speed that was excessive in the circumstances
and
(b) Drove whilst so affected by alcohol so as to be incapable
of exercising effective control over the defendant's motor
vehicle." 5. The defendant (appellant) appeals urging that the apportionment be altered so that the respondent be held to bear the greater responsibility for the collision. 6. The collision occurred at the junction of an unnamed access road and Main South Road at O'Halloran Hill. It happened at about 9.45 pm on 23rd January 1988. 7. The learned trial Judge described the scene thus:-
"The accident occurred at about 9.45 pm on 23 June, 1989, at
the junction of Main South Road and an un-named access road at
O'Halloran Hill. The un-named access road adjoins Main South
Road at a point just south of Resthaven Road and north of The
Lane. A service road runs parallel with Main South Road between
Resthaven Road and The Lane and the un-named road to which I
have referred connects that service road to Main South Road. In
that area, Main South Road and the service road I have
mentioned, run north and south and the access road runs east and
west.
The accident occurred when a Holden Torana Sedan being driven
by the plaintiff in a westerly direction along the access road
came into collision with a Mazda RX7 Coupe being driven by the
defendant in a southerly direction along Main South Road.
In the vicinity of the accident, Main South Road is divided
into two carriageways; an eastern carriageway consisting of
three lanes for vehicles travelling in a southerly direction and
a western carriageway also consisting of three lanes for
vehicles travelling in a northerly direction. The carriageways
are divided by a raised centre median strip. Each of the lanes
in the eastern carriageway is about 3.5 metres in width. North
of the opening of the access road on to Main South Road is a bus
lane on the eastern edge of the eastern carriageway of Main
South Road designated by an unbroken white line; so that,
immediately north of the junction of the access road and Main
South Road, the eastern carriageway of Main South Road is
divided into a bus lane and three traffic lanes. In Main
South Road, directly opposite the opening to the access road, an
elongated triangular shaped raised traffic island is situated to
guide traffic entering and leaving the access road. A larger,
painted triangle surrounds this island. For traffic leaving the
access road to travel north on Main South Road, there is
provided an integrated right-turn lane. At the time of the
accident, the road-way was dry, although it had rained earlier.
There is street lighting in the service road running parallel
with Main South Road and there is a service station on that road
just south of the junction of Main South Road and the access
road which, at the time of the accident, was open for business.
There is no street lighting on Main South Road itself in the
area. North of the access road, Main South Road has a medium
down hill grade for vehicles travelling south." 8. The access road is a road which is used to get access to shops. Those shops are set back from the main road. 9. The unnamed access road joins Main South Road as a junction at the relevant spot. A motorist using the access road can enter Main South Road. There the motorist can turn to go south or drive to the west across the eastern carriageway of Main South Road and turn right to go north along the western carriageway. 10. The respondent drove to the junction. She halted her car. Her headlights were on. Her car could have been easily seen by any south bound motorist coming from the crest "downhill" driving to the south. The respondent allowed about ten vehicles to pass. Then she thought there was a gap in the traffic. No doubt there was. There was still traffic coming from the north. But to the respondent it seemed to be afar off. And as things now appear she was not far wrong. The respondent thought that the nearest vehicle was 100 to 150 metres away. She began slowly to drive across the eastern carriageway. As the learned trial Judge said, "the next thing she knew the collision occurred". 11. The appellant was driving to the south. He probably saw the motor car driven by the respondent momentarily before impact. 12. The impact happened at the junction on the eastern carriageway. It matters not exactly where in the junction it happened. 13. The speed limit for the area (or "zone") was 80 kph. The respondent was obliged by law to concede right of way to the appellant. That is to say, she should have remained standing to allow the appellant to drive past the front of her vehicle. The respondent did not remain standing. 14. The respondent entered the junction and the collision occurred. If there were no more to the case it would follow that the respondent would be required to bear at least the greater responsibility for the collision. But there is more. The two significant other things were, or should have been, "speed" and "alcohol". I say "or should have been" because the learned trial Judge made no finding about the amount of alcohol consumed by the appellant nor the effect of it on him. 15. But the central issue was speed on the part of the appellant. How fast was he driving? And what does the answer mean in law? 16. There was quite an abundance of evidence about the speed at which the appellant was driving. Several other motorists or persons in motor vehicles spoke about it. Mr Bell, for the respondent, handed in a summary of the "evidence of the appellant's speed". It should be said that the appellant and his passenger denied that the appellant was driving at any more than very little above the speed limit of 80 kph. 17. The learned trial Judge did not accept the evidence of the appellant and his passenger. Nor should he have done so. It was obviously not correct. The weight of evidence was very much against it. 18. The learned trial Judge summed up the evidence of speed and made his finding about the speed at which the appellant was travelling immediately prior to the collision in these words:
"The defendant was travelling south along Main South Road
with his brother as a passenger. They had been together at the
Marion Hotel. They were on their way home. The defendant saw
the plaintiff's vehicle when it was about 20 metres from him.
He had no time to take any evasive action. Immediately prior to
the collision, he was travelling in the centre lane. He said he
was in the left lane. He must have been mistaken about that. A
witness, Mr Jaeger whose evidence I accept, was travelling in
the same direction as the defendant along Main South Road and
saw the defendant travelling in the centre lane just prior to
the collision. Another witness, Mr Philips, whose evidence I
also accept, said the defendant was in the centre lane
immediately before impact. The point of impact is also
consistent with the defendant travelling in the centre lane up
to the moment of impact. At a point along South Road, somewhere
north of the crest in that road to which I have earlier
referred, the defendant overtook a vehicle driven by the witness
Mr Giles at a speed of about 130kph. I accept the evidence of
Mr Giles as to the estimate of the defendant's speed at that
time. Mrs. Giles, who was a passenger in the car being driven
by her husband saw the speedometer in that car was showing about
95kph at the time the defendant's vehicle passed. At the time
the vehicle being driven by Mr Giles was overtaken by the
defendant's vehicle, the defendant was travelling in the right
lane. Mr Giles was travelling in the centre lane. After
overtaking the vehicle being driven by Mr Giles, the defendant
overtook the vehicle driven Mr Jaeger. Mr Jaeger was travelling
in the centre lane. The defendant overtook Mr Jaeger on his, Mr
Jaeger's, left. At the time it overtook Mr Jaeger's vehicle,
the defendant's vehicle was travelling at 100kph or more. This
is Mr Jaeger's estimate and I accept it. After overtaking Mr
Jaeger's vehicle, the defendant's vehicle moved into the centre
lane. Mr Jaeger lost sight of the defendant's vehicle for a few
seconds. He next saw it when it was about 20 metres from the
point of impact and when he, Mr Jaeger, was at the top of the
crest to which I have referred.
Neither the plaintiff nor the defendant took any evasive
action prior to the point of the impact. The defendant thought
he swerved to the right. He might have formed the intent to do
that in the short time available to him after seeing the
plaintiff's vehicle, but he had no time to convert the intent to
action. The defendant was clearly negligent. He should have
seen the plaintiff's vehicle long before he did. He was not
keeping a proper lookout. He was also going too fast. If he
had been travelling at 80kph, the speed limit, it is unlikely
the accident would have occurred, even allowing for his
defective lookout. It is impossible to find the exact speed at
which the defendant's vehicle was travelling immediately prior
to the impact, but I think it probable that it was in the
vicinity of 100kph; perhaps more; certainly not less. By
comparison, the plaintiff's vehicle was travelling slowly;
certainly less than the 30kph estimated by the defendant. I
should say that in considering the speed at which the
defendant's vehicle must have been travelling, I have taken into
account the evidence of Mrs. Giles that, after the defendant's
vehicle had overtaken the vehicle in which she was travelling,
she observed the brake light on the defendant's vehicle appear." 19. Mr Bell submitted that the learned trial Judge could well have found that the appellant was driving at much more than about 100 kph. In his Outline he wrote:-
"3. As to speed the Trial Judge does not find that the
appellant was travelling at 100 km per hour. He found a speed
in the vicinity of 100 km per hour, perhaps more, certainly not
less. All the evidence accepted by the Trial Judge is to the
effect that the speed was greater than 100 km per hour. (See
evidence of Mr Giles, Mrs Giles and Mr Jaeger. The Trial Judge
did not accept the evidence of the appellant and his brother as
to his speed).
4. Most significantly the distance that the appellant's
vehicle got ahead of the vehicles of Giles and Jaeger after
passing them and prior to impact indicates that the appellant
must have been travelling closer to 130 km per hour than 100 km
per hour." 20. I think that there is much force in these submissions (which Mr Bell developed in argument). It will be remembered, however, that the finding of the learned trial Judge is a finding about the speed at which the appellant was driving
"immediately prior to the impact. The evidence of Mr Giles,
of the appellant's passing at about 130 kph relates to a time
earlier than that immediately prior to the impact. After the
passing of her husband's car Mrs Giles, from her seat in that
car, saw the "brake light on the defendant's vehicle appear". And Mr Jaeger said that the appellant overtook him at 100 kph or more. 21. I think it would have been open to find that the speed of approach prior to the late braking was 130 kph. But the finding of no less than 100 kph immediately prior to impact was open to the learned trial Judge on the evidence of the brake light and of Mr Jaeger. That, of course, does not negate a faster speed as the appellant approached the junction prior to applying the brakes. On the evidence of the witnesses, whose evidence was accepted by the learned trial Judge, I think this Court can safely say that the appellant must have been approaching for some of the distance between the crest in the road and the braking at a speed of no less than 120 kph. 22. On this finding and on the finding of the learned trial Judge the appellant was clearly guilty of negligence. It really was much too fast. It does not help to apply adjectives such as "gross" to the noun "negligence". Suffice it so say that the very fast speed calls for a finding that the appellant was required to bear a substantial proportion of the responsibility of the collision. Had the appellant driven at the speed limit or even a little faster it is probably the accident would not have happened. The respondent would have had time to cross the eastern carriageway before the appellant reached that position. 23. Mr Walsh QC in his forceful argument reminded us of the obligation to give way, of the crossing of a main road, and of the need to recognise that drivers do travel fast along main highways. He submitted:-
"If one looks at the responsibilities of the drivers, it is
absolutely correct that the defendant was negligent in
travelling too fast. It is absolutely correct, that as His
Honour found, neither party took any evasive action, but if one
considers whether it be 80 kph or 120 kph 100 kph, whatever; a
car coming out at night time, merging into a freeway with
vehicles behind, not far behind that vehicle, merging into the
freeway as it was at that time, that is a fairly gross breach of
duty by the plaintiff.
In our respectful submission, whilst we accept, and must, His
Honour's finding that we were negligent, to say the
responsibility of the defendant is as high as 75 per cent in
those circumstances, is, in our submission an incorrect
estimate; grossly incorrect estimate of the responsibility of
the parties." 24. I cannot agree. I recognise the importance of all matters mentioned by Mr Walsh. I agree that great care is needed is crossing main highways. I recognise the importance of the obligation to give way. 25. All these matters and imperfect lookout on her part demonstrated that the respondent was guilty of contributory negligence. Of course, the learned trial Judge recognised the importance of all these matters. 26. I agree, too, that the apportionment so favourable to the respondent is unusual in a "give way at a main highway" case. But very fast speed changes this from a usual type of "give way at a main highway case". That very high speed gave the respondent a false sense of safety, ie safety in essaying the drive across the eastern carriageway. She must have seen the lights of the motor car driven by the appellant even though they were, as these things go, quite a long way away. No doubt they were almost afar off. The respondent should have been more attentive in her lookout. She should have appreciated that something was coming at a fast speed. She should have waited for a longer time. But her moving off in the belief that the nearest vehicle was a long way away is understandable. 27. It is well settled both that apportionment depends on responsibility for the collision and that an appellate court should be slow to interfere in the apportionment fixed by the trial Judge. I think that there was more than one point of view available about the apportionment here. But I cannot say that the learned trial Judge was wrong. I think that the rate of speed at which the appellant drove was so great that he should bear by far the greater responsibility for the collision despite the fact that he was on a main road and that the respondent emerged from a side street. I cannot say that the apportionment fixed by the learned trial Judge is wrong. I think that a finding that the appellant should bear 75 per cent of the responsibility of the collision is reasonable in all the circumstances. 28. There was evidence that the appellant had drunk alcohol before beginning his journey that night. There was evidence from the well known and well respected pathologist, Dr Ross James, about the "blood alcohol level" of the appellant at the time of taking alcohol and by calculation of the time of the accident. Dr James spoke of the effect the amount of alcohol shown in the test would have had upon the appellant. There was evidence that the appellant had drunk alcohol after the collision and before the testing of his blood. 29. The learned trial Judge made no finding. He said:-
"The defendant was taken to the Flinders Medical Centre
after the accident. A blood sample was taken from him and
analysed for alcohol. At 11.15 p.m., he had a blood alcohol
content of 0.113 grams of alcohol per 100 millilitres of blood.
Some time and evidence during the trial was devoted to the
amount of alcohol the defendant would have had in his blood at
the time of the accident and the likely effect thereof on his
ability to drive. I have not deemed it necessary to make any
findings about those matters because, even assuming the
defendant's ability to drive was to some extent impaired by the
alcohol he had consumed before the accident, and I do not say it
was, the amount of the alcohol he had consumed was not such to
have contributed to the accident beyond those areas where I have
found the defendant departed from the standard of care required
of him; namely, his look-out and speed. In all the
circumstances, it does not matter whether the alcohol consumed
by the defendant prior to the accident contributed to his
failing to keep a proper look-out out or driving at an excessive
speed; the important thing for present purposes being that,
however caused, at the relevant time, his look-out was defective
and he was driving too fast." 30. Mr Bell wrote in his Outline (and spoke to the point) -
"The Trial Judge erred in not making a finding on the
question of alcohol consumption by the appellant. The degree of
responsibility of the appellant for the collision is increased
when an error of lookout or judgment is caused or contributed to
by the impairment of faculties resulting from the consumption of
liquor. (See Kilminster v Rule (1983) 32 SASR 39 at pp41-45).
If the evidence of the appellant and his best friend Mr English
as to the appellant consuming alcohol at the hospital was
rejected as it should have been, the evidence of Dr James was
that the breath alcohol reading at the time of the accident
would have been between .13 and .14. At this reading there
would have been a significant impairment of speed and distance,
including a visual impairment and delayed reactions to a given
image." 31. I agree with Mr Bell. Mr Bell has correctly applied the decision and reasoning of the majority in Kilminster v Rule (1983) 32 SASR 39. The powerful dissenting judgment in that case said much the same as did the trial Judge here. The learned trial Judge must be held to have erred in not making 11 a finding. It could have been important in a number of ways. But I do not think that as it happens the failure to make the finding matters here. I do not think that the most adverse finding possible to the appellant "on alcohol" could or should have produced an apportionment of liability different to the amount fixed by the learned trial Judge. Whether the appellant was affected by alcohol or not he came along the main road with his lights on in a straight line. The respondent should have paid more attention to her right and to the progress of the lights which she had seen afar off. Had she done so she would have realised that there was a risk of moving away from her position into the path of a car which was coming very fast. And, of course, the appellant was coming from her right on a main highway. That is enough whatever the condition of the appellant to cast 25 per cent of the responsibility and no more on the shoulders of the respondent. And the speed and lack of proper look out is enough to cast 75 per cent of the responsibility on the shoulders of the appellant. The evidence does not suggest that he was badly affected by alcohol. Whatever effect could be proved on the evidence would not alter the apportionment. 32. I think that the learned trial Judge came to a sound decision. I would dismiss the appeal.
JUDGE2 DUGGAN J I would dismiss the appeal for the reasons given by Bollen J.
JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed for the reasons expressed by Bollen J.
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