Lindenberg v Pullen

[1996] QCA 153

IN THE COURT OF APPEAL	[1996] QCA 153
SUPREME COURT OF QUEENSLAND
Appeal No. 164 of 1995.
Brisbane
[Lindenberg v. Pullen]
BETWEEN:

BRIAN PETER LINDENBERG

(Plaintiff) Appellant

AND:

BRADLEY ROSS PULLEN

(Defendant) Respondent

___________________________________________________________________

Pincus J.A. Davies J.A. Ambrose J.

___________________________________________________________________

Judgment delivered 28/05/1996

Judgment of the Court

___________________________________________________________________

APPEAL DISMISSED WITH COSTS

___________________________________________________________________

CATCHWORDS: PERSONAL INJURY - apportionment of liability - motor vehicle

accident.

Moodie v. Ladbrolli Pty Ltd (C.A. No. 173 of 1993, 25 March 1994)

Counsel:	Mr R M Stenson for the appellant. Mr D North for the respondent.
Solicitors:	W H Tutt and Quinlan for the appellant. McInnes Wilson and Jensen for the respondent.

Hearing date:11 April 1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 164 of 1995.

Brisbane

Before Pincus J.A. Davies J.A. Ambrose J.

[Lindenberg v. Pullen]

BETWEEN:

BRIAN PETER LINDENBERG

(Plaintiff) Appellant

AND:

BRADLEY ROSS PULLEN

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/05/1996

This is an appeal in a personal injury case in which the appellant, the plaintiff below,

challenges the apportionment of liability. The primary judge held the appellant and

respondent both to be responsible for the injury the appellant sustained in a collision

between two vehicles, and his Honour apportioned liability 45% against the appellant and

55% against the respondent. The appellant says that the apportionment should be altered

in his favour, but does not contend that it was wrong to find him partially responsible for his

own injury.

Except in one respect, to be mentioned below, the appellant substantially accepts

the judge’s findings of fact, and the following account of the way in which the appellant was
injured is a summary of the judge’s findings.

In the afternoon in question, the appellant was driving a Toyota utility vehicle south

along Mt Samson Road and shortly prior to the collision the utility was overtaken by a

Holden sedan driven by the respondent, near the intersection of Mt Samson Road with

Briscoe Road, which comes into Mt Samson Road from the left. The angle at which it does

so is such that it would have been necessary for the appellant to turn his vehicle through

135_ in order to enter Briscoe Road.; on the view the judge took, the appellant swung out

to the right to prepare to make this 135_ turn left. Mt Samson Road is, at about the point

at which the collision occurred, practically straight with a bitumen strip 6 metres wide and

a broken painted centre line; the speed limit at the place where the collision happened

was 100 kph.

The appellant drove his utility slowly towards the Mt Samson Road / Briscoe Road

intersection and, as he approached that intersection, his vehicle, which had been driven

on the left-hand side of the road, veered across towards the right-hand side. The utility

was, when this veer concluded, substantially but not wholly on the right-hand side of the

road. Just prior to the utility veering to the right, the sedan driven by the respondent,

approaching rapidly from the rear, had been driven onto the right-hand side of the road, the

respondent intending to pass the utility. But seeing the utility veering into his intended path,

the respondent decided to go back into the left-hand lane and overtake on the left. Then

instead of continuing along on the right-hand side of the road, the utility turned to the left (the

appellant intending to enter Briscoe Road), and cut across in front of the sedan, which

collided with it. There were "tyre burn" marks from the sedan found, 23 metres in length,

leading up to the point of the collision and continuing for a distance of 9 metres. The

appellant did not make any observation to his rear before executing the manoeuvres described - i.e. the veer to the right and subsequent swing back to the left - nor (the judge

held) did the appellant activate the left-hand turn indicator of the utility until a point at which

the sedan was so close that a collision could not be avoided. It is the last mentioned

finding which is challenged by the appellant; Mr Stenson says on his behalf that it was not

reasonably open.

It was common ground that after the collision both front and rear left turn lights were

flashing, on the utility, and the question is when they began to do so. The appellant’s

evidence was that he felt he "would have indicated" as he approached the turn to Briscoe

Road; he had made that turn on many occasions and his practice on those occasions had

been to indicate and then turn left. A Mr McDougall, a senior constable of police, gave

evidence below for the appellant; in cross-examination he said that the appellant had told

him that he did not see the car travelling behind him. McDougall then asked, "What speed

were you travelling at?" and the appellant replied "Not fast. Not sure. I just indicated to turn

left".

Had this evidence not been contradicted, the judge would perhaps have found that

the left-hand light of the rear of the utility was flashing before the appellant made any

attempt to turn left. But the respondent gave evidence that there were no lights showing on

the utility when the sedan moved into the right-hand lane and that there "were no indicators

at any stage". He admitted, however, seeing the front left indicator on after the accident.

A passenger in the respondent’s vehicle, Ms McPherson, said she saw no prior indication

of the utility’s move to the right. A little later she gave this evidence:

"Did you have the rear lights in view?-- I can’t remember seeing any lights.
There were no lights.

When it moved from the right to the left again, did you see any indication or any lights come on at the rear?-- No., no.

After the accident, did you see any lights on?-- Yeah, there was - the blinker was blinking.

Which one?-- The left-hand side blinker."

She later said that she did not see any lights flashing.

There were of course two possible explanations of the circumstance that neither the

driver nor the passenger in the sedan saw a flashing light on the utility at any time before

the collision: firstly, that no such light was on, and secondly, that it was on but not noticed.

To our minds the most solid and reliable evidence on the point was that the left-hand lights

were flashing after the collision, giving a basis for an inference that this was so before the

collision. The judge might, as it seems to us, have inferred as a matter of probability that

the lights were activated at an appropriate time, although not noticed from the sedan.

But his Honour did not do so; it was held, as we have mentioned, that when the left-

hand turn indicators were operated the vehicles were so near each other that a collision

could not be avoided. His Honour declined to find that the respondent’s failure to see the

left-hand indicator flashing before the collision was due to a failure to keep a proper

lookout. As we understand the reasons, the judge thought that failure was due to the fact

that the indicator was actuated very close to the point of collision.

It was contended by Mr North, for the respondent, that this Court should not interfere

with the finding with respect to the left-hand indicator, because it was one which depended

in part on the judge’s impression of the witnesses. In our opinion the submission must be accepted. Although a contrary finding was well open, it is impossible to hold that the

primary judge was in error in drawing, from the evidence of the respondent and his

passenger, the conclusion that the trafficator was operated too late, rather than adopting

the view that it was operated in due time and they simply failed to see it.

We would therefore reject the contention advanced on behalf of the appellant, that

the judge should not have found there was any negligence in respect of the time when the

appellant actuated the left-hand indicator lights.

It remains to be considered whether, accepting all the primary findings, an

apportionment of 45% against the appellant was a proper one. The respondent, on the

judge’s view (with which we respectfully agree), should have had doubt as to the intentions

of the driver of the utility, when he saw it, travelling very slowly, move partly onto the right-

hand side of the road, no turn indicator being seen to be operating. His Honour held that

the respondent decelerated slightly when he saw the utility move to the right; he then, the

judge held, moved back on to the left-hand lane, intending to overtake on the left. His

Honour went on:

"In my view, this choice created a hazardous situation. The Toyota was travelling very slowly, the Holden was fast approaching it and the defendant had no indication of the intentions of the driver of the Toyota other than having seen it veer partly onto the [right] lane of the road, the lane in which the Holden was then travelling. I reject the defendant’s evidence that he believed the Toyota was going to turn right. . . . The defendant really did not know whether or not the Toyota was going to turn either left or right."

It was, on these findings, a dangerous course which the respondent decided to pursue - a

gamble. If the utility driver, whose intentions he did not know, had in mind moving back to

the left instead of going further to the right or travelling straight on, the respondent, although "master of the situation", had little chance of avoiding a collision, once committed to

passing on the left. The prudent course was to brake, rather than try to rush through on the

left. The possibility that the ultimate intention of the driver of the utility was to turn left would,

if the respondent had considered the matter, have occurred to the respondent, because

there was clearly visible a street sign ahead indicating a road to the left. We have been in

doubt whether the case is one in which this Court should alter the apportionment so as to

be more favourable to the appellant, because it should have been evident to the

respondent that attempting to pass, at speed, on the left of the utility was quite dangerous,

when he had no means of knowing what the utility driver would do next. The old notion of

"last clear chance" has some relevance.

In Moody v. Ladbrolli Pty Ltd (Court of Appeal, Appeal No. 173 of 1993, 25 March

1994) this Court remarked (p. 6):

"The primary judge had to assess the importance . . . of the respondent’s negligence compared with that of the various breaches of which the appellant was guilty. This is a task of a discretionary kind: A V Jennings Construction Pty Ltd v. Maumill (1956) 30 A.L.J.R. 100 at 101; the discretion is a very wide one. Exceptional circumstances must be shown to justify interference with the learned primary judge’s apportionment: Watt v. Bretag (1982) 56 A.L.J.R. 760 at 761. As was succinctly stated in Phillips v. Daley (1989) Aust. Torts Reports 80-234 at 68,477 by McHugh J A, as his Honour then was:

‘Determining the apportionment of responsibility for damages is a task upon which minds notoriously differ. Appellate courts are reluctant to interfere with an assessment of responsibility unless the judge or jury has acted upon a wrong principle or the apportionment is manifestly erroneous’ ".

This is a case in which a vehicle travelling close to the speed limit came upon another,

slow-moving, vehicle on a country road, the driver of the latter showing no sign of being

aware of the approach of the former vehicle. In these circumstances, the respondent drove close by, at unabated speed on a mere assumption as to the likely future movement of the

slow-moving (and manoeuvring) vehicle. On the other hand, the respects of which the

appellant was negligent were not insignificant; he moved substantially into the right-hand

lane, intending to turn left, and then moved without looking out to the rear and without any

effective warning, into the path of the approaching vehicle. We have concluded that the

case is not one in which this Court would be justified in changing the apportionment fixed

below.

We would dismiss the appeal with costs.