Launceston Public Hospitals Board v George

[1991] TASSC 105

100/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Launceston Public Hospitals Board v George [1991] TASSC 105; A100/1991

PARTIES:  LAUNCESTON PUBLIC HOSPITALS BOARD
  v
  GEORGE, Robin Francis

FILE NO/S:  523/1987
DELIVERED ON:  29 November 1991
JUDGMENT OF:  Wright J

Judgment Number:  A100/1991
Number of paragraphs:  14

Serial No 100/1991
List "A"
File No 523/1987

LAUNCESTON PUBLIC HOSPITALS BOARD
v ROBIN FRANCIS GEORGE

REASONS FOR JUDGMENT  WRIGHT J

29 November 1991

1. This is an action pursuant to the provisions of s8H of the Workers' Compensation Act 1927. The plaintiff was the employer of Mrs Gloria Constance Page of Cluan. On the morning of 8 June 1985, Mrs Page was driving her Ford Laser motor vehicle on the Bass Highway in an easterly direction from her residence to her place of employment. Whilst travelling along a straight and nearly flat section of the highway a short distance east of the entrance to the Quamby Plains property, the defendant driving a Ford taxi cab in the same direction as Mrs Page attempted to overtake her vehicle. The foregoing facts are either admitted or not in dispute. It is alleged by the plaintiff that whilst attempting to return to his correct lane and when immediately in front of Mrs Page's vehicle the defendant lost control of his vehicle so that it skidded across the road in front of Mrs Page's vehicle. It is further alleged that whilst attempting to avoid the defendant's vehicle or alternatively, in the agony of the moment caused by the action of the defendant's vehicle, Mrs Page lost control of her car which also left the road and collided with a Hydro pole. The plaintiff alleges that this collision was caused by the defendant's negligent driving. His alleged negligence is particularized as follows:

(a)       drove too fast in the circumstances;

(b)       failed to keep a proper look out;

(c)       attempted to overtake when it was unsafe to do so;

(d)       lost control of his motor vehicle;

(e)       attempted to resume his lane when it was unsafe to do so.

1. Mrs Page was severely injured as a result of her car striking the Hydro pole and she died in August 1990 as a consequence of her injuries. Before her death the plaintiff paid to her or on her behalf weekly compensation and medical and other expenses being monies to which she was entitled under the provisions of the Workers' Compensation Act 1927. The total of such payments amounted to $265,254.64. The quantum of these payments is admitted by the defendant. Apart from the deceased Mrs Page and the defendant there were apparently no eye witnesses to the accident. During the course of the plaintiff's case, an affidavit under s38 of the Coroners Act 1957 sworn by the defendant in connection with the inquest into Mrs Page's death was put in evidence by the plaintiff. The plaintiff also tendered the defendant's answers to interrogatories numbered 1 to 8 inclusive and 11 to 14 inclusive. The defendant himself did not give evidence during the course of the trial. It was not suggested that he was unavailable to give evidence if required. His absence from the witness box was simply unexplained. Translating the interrogatories from question and answer to narrative form the defendant said this. He first saw Mrs Page's vehicle when it was approximately 100 metres ahead of his. His vehicle was then travelling at approximately 80 kilometres per hour and hers at approximately 50 kilometres per hour. Her vehicle was correctly positioned in the middle of the left–hand lane travelling in an easterly direction towards Launceston. He followed her vehicle for about 350 – 400 metres and during this time he observed no alteration in her speed or course on the roadway. When he decided to overtake her there was approximately 50 to 60 metres between the two vehicles. His speed was still approximately 80 kilometres per hour but he was unable to estimate the speed of Mrs Page's car save to say that it was travelling considerably slower than his vehicle. When he commenced to pass her car it was still travelling in the centre of the left–hand lane. The vehicles maintained these relative speeds and positions as the overtaking manoeuvre commenced. In the course of the overtaking manoeuvre, the defendant's vehicle reached 85 kilometres per hour. He observed no alteration in the speed or course of Mrs Page's car. In the course of the overtaking manoeuvre the defendant proceeded about 40 to 50 metres beyond Mrs Page's vehicle but he had made no attempt to return to his correct side of the road before he unexpectedly lost control of his car when it started to slide on what he believed to be black ice. He was unable to describe the position or course of Mrs Page's vehicle at this time. His car ran off the roadway into an adjacent paddock and he observed (apparently after coming to rest) that Mrs Page's vehicle was still to the west of his car but it also had left the road and had collided with a Hydro pole. The defendant said that he commenced to drive on the Bass Highway at about 4.45 to 5.00am that day, that his journey had originated at Launceston and before the accident occurred he had driven beyond Westbury and was in the process of returning to Launceston. He stated that he had not previously observed any ice on the roadway that morning. He described the weather as being fine but extremely cold, visibility was good, natural light was fair to good and there was no evidence that the bitumen road surface was affected by ice in either lane.

1. His affidavit under the Coroners Act is comparatively short and it may be set out in full. It reads:

"My full name is Robin Francis George. I am 49 years of age. DOB 20 July 1941. I reside at 38 Arthur Street, Launceston and I am a taxi owner. About 7am on Saturday 8 June 1985 I was driving a 1979 XD white Ford Falcon Sedan. Registered No BE3136. I was travelling in an easterly direction on the Bass Highway just near the entrance to Quamby Plains. I was following a small Japanese Hatchback which I think was blue in colour. I was travelling about 50 or 55 kilometres an hour. I decided to overtake the vehicle in front of me about adjacent to the Quamby Plains turn–off, as I had a clear view for about 2 kilometres up the road and nothing was coming toward me. As I was adjacent to the other car, I don't really know what happened, but the next thing I knew, I had gone off the road, through a fence and had come to rest in a paddock on the northern side of the highway. I got out of my vehicle and noticed that the vehicle I was over–taking had also left the highway and crashed into a Hydro pole, and that the female driver of that vehicle was unconscious. I then arranged to (sic) police and ambulance to attend the scene. At the time of the accident the weather was fine, it was very cold and frosty, the road was damp, the traffic flow light and the visibility was good. I was travelling alone in my vehicle as was the lady in the other vehicle. I was not injured."

1. Photographs taken at the accident scene by an investigating police officer were tendered in evidence and they depict a very cold and wintery landscape. There is frost on the paddocks adjacent to the Bass Highway and some frost is visible on the west–bound (or southern) side of the road. There are also marks on the road indicating the course taken by Mrs Page's vehicle prior to its leaving the bitumen surface, traversing the gravel verge, and crashing into the Hydro pole. The course taken by the defendant's vehicle is less clear but nonetheless there are marks indicating that it left the road some distance ahead of Mrs Page's vehicle. There is a distance of approximately 8 metres between the two vehicles in their stationary position. The police photographer, 1st Class Constable Midson, told me that the photographs had been taken at approximately 8.15am on the day of the accident.

1. Mr Douglas Hinds, a carrier now aged 60 years, gave evidence that he had been driving on the Bass Highway between Launceston and Kimberley six days a week for the last 30 years or so. He said that he travels approximately 1,200 kilometres per week at the present time. He said that on 8 June 1985 after he had driven to Kimberley and was on his way back to Launceston he noticed a vehicle parked on the side of the road immediately opposite the Cluan turn–off. Mrs Page was standing beside the car and was apparently in the process of removing ice from her windscreen. He asked her if she required assistance and upon receiving a reply in the negative, he continued on his way. The time was approximately 6am. Mr Hinds described the weather as being "freezing, frosty". He said that road conditions were "shocking" and there was ice on parts of the road. He said that he was travelling very carefully at about 40 miles per hour because of the conditions. He was travelling with his left–hand wheels in the gravel because of the slippery road conditions. By travelling in this way he was able to maintain better control than if he had been wholly upon the bitumen. He had seen conditions like this on only about three occasions previously. On two of those occasions the conditions were worse in that the road had been completely frozen or iced over but he said that on the morning in question the Carrick Straight "was frozen, oh, half the way you know in sections". Asked would he have tried to overtake another vehicle that morning he said "very doubtful". Asked why, he said "Well, you know I mean it was pretty slippery and if you try to overtake well it could be goodnight nurse." In cross–examination he conceded that if another vehicle had been travelling very slowly ahead of him he may well have overtaken it. Asked whether he had noticed on his trip out of Launceston that morning that the Carrick Straight was frozen, Mr Hinds said that it was not really frozen over then but you could see frost glistening upon it. He added that frost doesn't normally set down until about 5.30am. Mr Hinds differentiated between frost and ice, expressing the view that frost does not become ice on the roadway until it is compacted under the wheels of vehicles. For this reason he regards it as unsafe to drive along the tracks left by other vehicles upon the road surface when conditions are frosty, as these tracks are likely to be iced over. He said that the Carrick Straight is an area where a driver is prone to encounter patches of frost or ice but they are not always in the same place every day. Mr Hinds also explained the difference between black and white ice and indicated that black ice is more difficult to detect upon the road because it is totally transparent upon the black road surface.

1. Mr David Humphreys also gave evidence on behalf of the plaintiff. At the time of these events he was a 1st Class Constable attached to the Traffic Branch of the police force. He attended the scene of this accident at about 7.30am on 8 June 1985. He travelled from the police headquarters at Launceston to the area of the accident. He described the weather as being generally foggy and exceedingly cold. He said there was a heavy frost on the road and the land adjoining the road. Mr Humpheys was the driver of the police vehicle and he noticed ice forming on the radio aerial of the car as he drove along the highway. He was accompanied by Sergeant Stearnes. Mrs Page had been removed from the scene of the accident when the police arrived. The defendant was standing on the roadway near the entry to Quamby Plains. Mr Humphreys observed frost in the west–bound or southern lane of the Bass Highway. He said that there were small amounts of ice all along that section of the road but he didn't see any ice to the west of the pole where Mrs Page's vehicle was stationary. He inspected both vehicles and found no evidence of a collision between the two of them. The plaintiff does not allege that the vehicles touched in any way. Mr Humphreys agreed with defence counsel that the road was wet and that black frost existed at the accident site. Mr Humphreys distinguished between black frost and black ice but apart from leaving me with the impression that the difference between the two simply consists of the relative thickness of the covering on the road surface, I am not sure that any significant distinction exists. He agreed however with Mr Hinds that black frost or ice is difficult to see on the road's surface because, unlike white ice or frost, it is transparent. He said there was both black and white frost almost continuously from Launceston to the accident scene and that he drove the police car at an average of about 30 kilometres per hour with a top speed of no more than 50 kilometres an hour notwithstanding the fact that he realized he was required to attend a very serious motor accident. Mr Humphreys was cross–examined as to evidence that he had given in the coronial proceedings. He agreed that he had given the following evidence:

"QAnd the pocket of black ice that you have described can you describe did it consume the entire width of the roadway?

AYes, at the time of my arrival on the scene there was evidence of frost, white frost on the gravel verge.

QAnd you describe it as falling in a hollow outside the entrance to Quamby Plains? For what distance did it extend to the east of the entrance of Quamby Plains?

AI can't be accurate but I would say in the vicinity of 20 – 25 metres. It was only a small patch there.

QRight and so that I understand when you are referring to black ice you are referring to what is just ice, clear ice blackened by the bitumen?

AYes.

QBy the bitumen surface underneath?

AYes.

QSo that it is invisible?

AYes.

QUnless there is reflection by either sunlight or headlights?

ACorrect."

1. At the trial Mr Humphreys was unable to remember the patch of black ice outside the entrance to Quamby Plains. But I infer from his answers that if he gave that evidence at the coronial inquiry (as clearly as he did) it was likely to be truthful evidence at that time.

1. The plaintiff also called evidence from Peter Howard Hoban, a civil engineer of some considerable experience who, inter alia, has spent 11 years with the New South Wales Department of Main Roads in an administrative and advisory capacity. He gave expert evidence as to the likely coefficient of friction to be found upon the relevant road surface in the conditions that existed. He also explained the physical forces which could cause a motor vehicle to lose adhesion in such conditions as a combined result of speed, a change of direction and weight transference from one part of the vehicle to the other in the course of crossing from the left side of the road to the right side of the road and back again. I see no reason to reproduce this evidence in detail. It was plain from his evidence that the likely cause of the defendant losing control of his vehicle was the combined effect of speed and directional change as he was in the process of passing Mrs Page's car. Mr Hoban's opinion was also significant in that it suggested that in the absence of evidence suggesting that Mrs Page had either braked, accelerated or changed direction suddenly, there was no apparent reason for her vehicle leaving the road even if immediately prior thereto she had driven over or onto a patch of ice.

1. The defence called no witnesses and tendered no evidence. It was submitted by defence counsel that there was insufficient evidence for an inference to be drawn that it was the behaviour of the defendant's vehicle which precipitated a sudden evasive action by Mrs Page which in turn caused her vehicle to lose adhesion with the road surface and slide into the Hydro pole. Although inferences may be boldly drawn when the defendant chooses the well of the court to the witness box such absence does not justify the tribunal of fact in assuming the existence of facts which have not been established by acceptable evidence (see Insurance Commissioner v Joyce (1948) 77 CLR 39 and Jones v Dunkel (1958–9) 101 CLR 298. Reference was also made to Utting v Luhtala (1984) 55 ALR 261; Host v Bassett (1983) 57 ALJR 681; TNT Management Pty Ltd v Brooks (1978–9) 23 ALR 345 and Nesterczuk v Mortimore (1965) 115 CLR 140). These cases are all illustrative of the same general principle and provide a useful comparison of the circumstances in which evidence has been either sufficient or insufficient to justify the inference contended for by the plaintiffs in these actions.

1. In the present case it is plain that due to the exceedingly cold weather conditions it was likely that slippery conditions produced by ice and frost would be encountered upon this section of the Bass Highway. Equally plainly, the defendant would have been aware of these conditions having regard to the route that he took. Comparing his answers to interrogatories with the evidence of Messrs Hinds and Humphreys, I cannot accept that he was unaware of the icy conditions on the road.

1. In these circumstances, therefore, the defendant should have been alive to the hazards which he may cause in attempting to pass another vehicle unless it was proceeding extremely slowly and the overtaking manoeuvre was essayed at low speed and with particular care. In attempting to pass Mrs Page's vehicle at the speed that he did, I think that the defendant was plainly careless. In deference to defence counsel's submissions I acknowledge that this was a comparatively flat, straight section of road upon which the permissible speed limit was 110 kilometres per hour at the relevant time. Furthermore, there is generally good visibility from Quamby Plains towards Launceston. In normal weather conditions the defendant's manoeuvre would have been unexceptionable. However, these were not normal conditions. They were conditions of extreme hazard and required great caution particularly if overtaking another vehicle when an uncontrolled slide by the overtaking vehicle in close proximity to the other car would almost certainly result in a collision and possible serious injury. The way in which Mr Hinds and Mr Humphreys drove their respective vehicles is illustrative of the type of care which drivers should have been exercising that morning even when driving unimpeded by other traffic.

1. Defence counsel submits that even if the defendant's driving could be characterised as negligent, it has not been shown to be causative of Mrs Page's vehicle leaving the road. It was submitted on the basis of Mr Hoban's evidence that her vehicle would not have left the road unless she herself had in some way manipulated the controls either by swinging the steering wheel one way or the other or by applying the brakes or accelerating. I accept that this is an inescapable inference. However, the plaintiff submits that there is a high probability that in the circumstances any such manoeuvre by Mrs Page was the direct result of the defendant's losing control of his motor vehicle. Defence counsel on the other hand, submits that coincidental though it may have been, both vehicles were travelling over a section of road where ice caused at least one of them to lose control. Therefore, he says it may be inferred that the icy road conditions caused both cars to lose adhesion at or about the same time. It was submitted alternatively, that Mrs Page may have been startled by the defendant's vehicle as it passed her and before he lost control of it, thus causing her to react in an abnormal way and precipitating the skid which caused her vehicle to leave the road. Acknowledging that both of these scenarios are possibilities, I am nonetheless prepared to draw the inference which I am invited by the plaintiff to draw, namely, that in driving as he did and losing control of his vehicle in such a way as to travel from the incorrect side of the road across his correct side of the road and thence into the paddock cutting across Mrs Page's course as he did so, that manoeuvre by the defendant's car was the critical event which caused Mrs Page to react in whatever way she did. This inference is in my view considerably more likely than the other possibilities which I have referred to. This is not a case in which it can or should be said that the competing inferences are equally balanced. I am not, of course, in a position to say what specific manoeuvre Mrs Page undertook but I am satisfied that whatever manoeuvre it was, it was designed to avoid a collision between the two vehicles. This purpose was effectively achieved but in doing so, Mrs Page lost control with the tragic consequences which have been described.

1. Defence counsel submits that in reacting in any such way, Mrs Page was guilty at least, of contributory negligence because with the aid of hindsight it can be seen that such was an excessive reaction. Excessive reactions can, depending upon the circumstances, amount to negligence upon the part of the driver who so reacts. See Rainbird v Ward, Serial No 56/1970, (Full Court). However, if an excessive reaction is truly brought about by the agony of the moment, it cannot be regarded as negligence. I regard this as just such a case. The vehicles were in relatively close proximity at all relevant times. The dangerous situation was precipitated entirely by the defendant's ill–advised overtaking manoeuvre. Mrs Page was driving sensibly and appropriately at all times until this manoeuvre was undertaken. If, as I think likely, she instinctively touched the brakes or swerved or both, this cannot be characterised as negligence on her part. The defendant carries the onus of establishing contributory negligence by Mrs Page and in my opinion he has failed to do so. This is a case where the defendant simply lost control of his vehicle while executing a foolhardy manoeuvre as a result of encountering icy conditions upon the road of which he should have been completely aware. The path of his car after losing control precipitated an emergency reaction by Mrs Page which led to her vehicle also sliding on the treacherous surface.

1. In these circumstances the defendant was plainly the author of all the ensuing damage to both vehicles and the injuries to Mrs Page. There will be judgment for the plaintiff for the sum of $265,254.64 with costs to be taxed.