Lisa Marie Roncoli v Christine Tolson No. SCGRG 91/1974 Judgment No. 3773 Number of Pages - 9 Negligence - Road Accident Cases (1992) Aust Torts Rep 81-201

[1992] SASC 3773

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE(1), MOHR(2) AND DUGGAN(3) JJ

CWDS
Negligence - road accident cases - Appeal from a determination of the question of liability made by the Trial Judge - appellant driver, upon hearing a sound "like a blowout", lost control of the vehicle - whether evidence sufficient to support a finding that the driving of the appellant did not meet the well-recognised test of the prudent and reasonably competent driver - whether such a standard of care was in fact applied by the Trial Judge. The Stoomvaart Maatshappy Nederland v Peninsular and Oriental Steam Navigation Company (1880) 5 AC 876 at 891; Billy Higgs and Sons Ltd v Baddeley (1950) NZLR 605; Scholz v Standish (1961) SASR 123 and Leahy and The State of South Australia v Beaumont and Others (1981) 27 SASR 290, discussed.

HRNG ADELAIDE, 7 August 1992 #DATE 22:12:1992
Counsel for appellant:     Mr D Trim With Mr D Greenwell
Solicitors for appellant:    Ross and Mccarthy
Counsel for respondent:     Mr C H Cocks
Solicitors for respondent: Hume Taylor and Co

ORDER
Appeal allowed.

JUDGE1 LEGOE J This is an appeal from a determination of the question of liability only made by a District Court Judge. The learned Trial Judge came to the conclusion on the facts as found that the appellant had been shown to have fallen below the standard of care demanded of her in the circumstances of the case. In his opinion, the plaintiff's case has been made out and that the defendant must be held to have been negligent. 2. The relevant facts were that, at about 3.50pm on Sunday 9th November, 1986 the respondent and her four friends were returning home to Whyalla, after spending the weekend at Arno Bay. They were travelling by car. The car was owned and driven by the appellant. The respondent was the only front seat passenger. The other three ladies were seated in the back seat. They all gave evidence as to what happened. The witness Dawson was seated on the driver's side behind the appellant. The witness Sawyer was seated immediately behind the respondent. The witness Hutchinson occupied the position in the centre of the back seat. At the time of the incident, they were travelling along the Lincoln Highway in a northerly direction towards Whyalla. Lincoln Highway was not divided by traffic lanes. It is an open country road. It is sealed with bitumen. It is straight. At the time it was dry. The weather conditions were fine, bright and sunny. The learned Trial Judge found that immediately prior to the incident to be referred to below, the appellant "exhibited a responsible and reasonable attitude towards the driving, management and control of her vehicle." The learned Trial Judge accepted that she had her vehicle under proper control, and that she travelled at a reasonable speed, namely in the range of 95 to 100 kmph. Her manner of driving gave no cause for concern to any of her passengers, all of whom agreed in evidence that her driving up to that point "had been normal and unobjectionable." 3. Each of the witnesses gave their description as to what happened. The learned Trial Judge referred to the impression of the witnesses, which was associated with what he described as "the sound of a noise." The learned Trial Judge summarised the witnesses impression as follows:
    "I am satisfied that that noise was loud and that it was
    heard by the defendant and by each of the passengers, although
    not all of them perceived it in the same manner. Dawson, for
    example, described it as 'a loud bang, like a tyre had blown'.
    According to that witness the sound was 'really loud, like it
    was a big bang'. The witness Sawyer described it as 'a loud
    noise, like a bang'. According to Hutchinson it was "just a very
    loud bang, clang bang' which 'sounded like a hub cap had fallen
    off.' The defendant said in evidence that she remembered very
    little of what had happened and had no recollection of the sound
    in question. Tolson (the respondent), on the other hand,
    described the sound of the noise as 'just like a pop, a bang.' In
    cross-examination she expanded on that and said that it sounded
    'like when a balloon pops, it's quick, gone, over and gone'." 4. The learned Trial Judge went on to find, that immediately upon hearing that noise, the appellant became quite alarmed. She was concerned as to what might have happened. The learned Trial Judge found that thereupon she directed her attention towards the respondent and said "what was that?" The learned Trial Judge accepted that the answer to the appellant's question was provided by the respondent, namely, that it "sounds like a blowout". 5. Although the above was the impression that all of the witnesses heard, the learned Trial Judge held:-
    "...that the noise which was heard by the defendant and by
    her passengers was not caused by what most of them, at that
    time, believed or suspected to be, a tyre blowout. I am
    satisfied however, as I find, that although there was no blowout
    in fact, the nature of the noise and the circumstances in which
    it was heard was such as to convey, and probably did convey, a
    reasonable impression to all concerned that the noise in question
    was indeed the result of a blowout which had been suffered by the
    rear right tyre of the vehicle. That, in my judgment and I find
    on the probabilities, is how and what the defendant perceived the
    situation to be by not later than the time at which she attempted
    to take corrective steps." 6. The learned Trial Judge then went on to state that the appellant upon hearing the bang, intended to reduce speed and bring the vehicle to a halt. He was satisfied, as he found, that the appellant attempted to achieve that by applying the foot brakes. He accepted the respondent's evidence on that topic, and found that the appellant put her brakes on immediately. He found what she actually did, was as the respondent put it in evidence "just jamming on them fast". His Honour therefore concluded that he was satisfied on the balance of probabilities, that immediately following the application of the brakes, the appellant lost control of her vehicle. It veered to the right. It did so on an angle. It swerved and swayed from side to side across the road, and off into the dirt where it eventually rolled over before coming to rest back on its wheels but facing in the opposite direction. The path taken by the vehicle is shown clearly on the police plan which was tendered. 7. In addition to the lay witnesses, the appellant called an expert mechanical engineer, one Henry Aust, and the respondent called another engineer, one Christopher Hall. Both of the experts examined the subject tyre and did certain tests, and in their evidence agreed that the subject tyre did not suffer a blow out. Both experts described the incident. The tyre concerned was on the rear driver's side wheel as a "belt edge tread separation". The evidence of Mr Hall the respondent's expert was quoted by the learned Trial Judge:-
    "...typically what happens when the belt edge separates is
    that the tread section has lost some of its retaining strength -
    in other words, the bond that keeps the tread attached to the
    carcase of the tyre under the high centrifugal forces that are
    exercised on a spinning tyre - that has partially broken down.
    And it may be that it's sufficient to enable the tread to start
    separating completing across the face of the carcase to throw out
    - the sequence of events is that the belt edge separates first.
    And from that point, the bond between the tread and the carcase
    is no longer sufficient to retain the tread. It then completely
    throws out to the point - and as that separation grows around the
    carcase, the tread section can be thrown out further and
    eventually strikes the under-body of the car and results in a
    loud bang." 8. The learned Trial Judge went on to state that he was satisfied that the noise in such a separation of the belt edge tread is akin to the loud bang, which the lay witnesses in the car described in evidence. Further, the learned Trial Judge was satisfied that there was no loss of pressure in the tyre. He found that the tyre remained sufficiently inflated and that it retained its structural stability. The loss of tread brought about an out-of-balance situation, and the learned Trial Judge rejected all evidence suggesting that the degree of out-of-balance was such as to cause the steering of the vehicle to become uncontrollable. He found specifically to the contrary. For this reason, he held that the out-of-balance caused by the loss or separation of tread was reasonably controllable and could have been controlled by a reasonably competent driver taking appropriate corrective measures. The appellant complains about the reasoning at this stage. 9. The learned Trial Judge then stated, that there was no doubt in his mind, and he so found that the question asked by the appellant "what was that?" was asked by her immediately upon hearing the loud bang. Further, he was satisfied and found:-
    "...that the defendant jammed on the brakes almost
    contemporaneously with that. In my judgment she reacted
    instinctively , instantaneously and forcibly. I accept Tolson's
    (the respondent) evidence that the defendant jammed on the brakes
    rapidly and that she did so with as much as force as possible.
    That action, in my judgment and as I find, caused the rear of
    the vehicle to become unstable." 10. Consequently, the vehicle then had a loss of directional stability and went off the road, rolled over and the injuries were caused to the persons in the vehicle. His Honour then stated:-
    "In my opinion the application of brakes by the defendant
    when and in the manner in which she took that action created a
    situation whereby the rear end of the vehicle tried to pass the
    front in such a fashion that the car started to spin sideways in,
    what the experts referred to as a yawing motion. In my finding
    the application of brakes by the defendant when and in the manner
    in which she took that action caused an immediate and almost
    instantaneous loss of directional control of the vehicle." 11. The learned Trial Judge then referred to certain passages in the cross-examination of the respondent's expert Mr Hall, in relation to the suggested different reactions of a driver appropriate to whether the tyre had blown out or the tread was lost. According to the learned Trial Judge, Mr Hall did not agree that there was any difference in the appropriate reaction. The learned Trial Judge stated that he considered that Mr Hall was correct in not agreeing to that. 12. The conclusion made by the learned Trial Judge as to the appellant's liability which is attacked on this appeal was expressed as follows:-
    "I am satisfied that upon hearing a loud bang in a situation
    such as that which confronted the defendant on the occasion in
    question, a driver would not know what caused that bang. Such a
    driver, in my opinion, would be unable to distinguish between a
    blowout situation and a situation of tread separation. It is for
    that reason that, in my view, a reasonably prudent and competent
    driver in that situation would probably take the same action and
    would probably react in a like manner irrespective of whether, in
    fact, there had been a tyre blowout or a separation of tread. In
    my judgment the manner in which such a driver would react, and
    the action which he would take would be such as to maintain the
    steering stability of the vehicle as best as possible and slowly
    bring down the speed of the vehicle. It was the defendant's
    case, as presented, that the steering of the vehicle became and
    remained uncontrollable once part of the tread was lost and the
    remainder of it had become separated. The situation, so it was
    argued had thereupon become so uncontrollable that the
    defendant's best endeavours, even in the absence of braking as
    and when she did, could not have prevented the eventual roll-over
    from taking place. I reject that contention. My finding is to
    the contrary. In my opinion the situation was indeed
    controllable, and could have been controlled by a reasonably
    competent driver taking appropriate steps, steps designed to
    reducing speed and maintaining steering stability. That, in my
    judgment could have been achieved in the words of Mr Hall by:-
    'Just continuing to drive and let the car run down through to a
    light to moderate application of the brakes.' The defendant did
    not do that. She jammed hard on the brakes. She jammed on them
    with as much force as possible. I am satisfied, as I find, that
    it was that rapid and heavy application of the brakes that caused
    the instability which eventually culminated in the roll-over of
the vehicle." 13. The learned Trial Judge also dealt with an argument put to him by counsel for the defendant, that she had acted almost as an act of automation, and that the response to the emergency situation which she confronted, was therefore both reasonable and appropriate in the circumstances. The learned Trial Judge concluded that this was unsupported by the evidence, stating that the evidence persuaded him that that was not the case. He therefore declined to draw the inference that he was asked to draw on the topic and rejected appellant's counsel's submission in that regard. He recognised that the appellant was thrown into a critical position. She found herself in a situation of panic, almost suddenly and without warning. Reference was made to the well-known dicta of Lord Blackburn in The Stoomvaart Maatshappy Nederland v Peninsular and Oriental Steam Navigation Company (1880) 5 AC 876 at p. 891:- "...due allowance should be made for this, but not too much." Reference was also made to Billy Higgs and Sons Ltd v Baddeley (1950) NZLR 605, and Scholz v Standish
(1961) SASR 123 and Leahy and the State of South Australia v Beaumont and Others (1981) 27 SASR 290. On the evidence the learned Trial Judge was satisfied that:-
    "...the sudden, heavy and violent application of brakes to
    a vehicle carrying five persons and travelling about 100
    kilometres per hour, is not an action which a reasonably
    competent would have taken in any event and even in the absence
    of a tyre break down, because such an action would be likely to
    cause not only a loss of stability, but a loss of stability not
    dissimilar to that which the defendant experienced on the
    occasion in question. Accepting that that is so as I do, then in
    my judgment, with much stronger reasons such an action would not
    be taken by a reasonably competent driver in the event of a
    sudden movement in the vehicle, a separation of tread or a
    suspected blowout. In that event the response of a reasonably
    competent driver, in my judgment, would be to release the
    accelerator, hold on to the steering wheel and gradually apply
    the brakes in a gentle manner in order to bring the vehicle to a
    halt in as much a straight line as possible. I therefore find
    that the defendant's manner of driving, judged objectively, fell
    short of the standard required of her in the circumstances." 14. It was the basis of this conclusion which the appellant attacked on this appeal. THE APPEAL
15. The relevant ground of appeal, developed by counsel for the appellant, is Ground 3:- "3. That the learned Trial Judge failed to place any or insufficient weight on the evidence of the witness Aust and/or in the alternative was wrong in law in his perception of the evidence of Aust." 16. Basically, the submission was, that when the evidence is carefully read, then the essence of the appeal is that, when Mr Hall's evidence is properly understood, the conclusion is inevitable that the appellant's response to the situation that confronted her, was reasonable and meets the standards imposed by the law upon a driver. A finding that the response to the situation that confronted the appellant was inappropriate, cannot stand as a conclusion of law. The real point of dispute between the two experts, Mr Hall on the one hand, and Mr Aust on the other hand, was that the degree of out-of-balance in the movement of the car, was such as to cause the steering of the vehicle to become uncontrollable. Counsel for the appellant made it clear that he did not propose to embark upon the task of attempting to persuade this Court, that the preference for Mr Hall's evidence should be rejected. The critical issue should be, and always has been in fact, one of determining where exactly the two experts diverged in their opinions. The focus of the appeal is upon an issue on which both were in agreement. As counsel for the appellant pointed out, the learned Trial Judge recognised that upon hearing a loud bang in a situation such as that which confronted the appellant, on this occasion, the driver would not know what caused that bang. Consequently, such a driver would be unable to distinguish between a blowout situation, and a situation of tread separation. By apparently accepting the statement of Mr Hall, in preference to that of Mr Aust, the learned Trial Judge has imposed a standard of reaction or response to the situation and the instability of the motor vehicle, which is beyond that expected from an ordinary prudent and reasonable driver in either situation. The learned Trial Judge, submitted counsel for the appellant, applied a standard of driving appropriate to a blow-out situation on an entirely different set of facts. The appellant's response to the sudden situation was not inappropriate. The appropriateness of the appellant's response can only be gauged against the fact of what occurred. The reason why Mr Hall asserted in his evidence that the application of brakes was inappropriate in this case, was that an application of brakes of a vehicle in a perfectly sound condition at any speed, can cause instability. Mr Hall went on to state that any steering input at that particular moment of instability, and application of brakes would be most inappropriate. As counsel for the appellant stressed, there was no evidence in this case of any such steering input. As counsel further observed, there are many circumstances where the application of brakes of a vehicle may be a reasonable response to a situation that confronts a driver, notwithstanding that such application of brakes may cause a tendency to instability in the vehicle. Counsel submitted that the appellant did not apply and continue to apply the brakes of her vehicle in a situation in which the vehicle had been rendered unstable by a loss of tyre pressure. In the circumstances, her reaction was reasonable and appropriate reaction to a situation of shock. Counsel submitted that her instantaneous reaction to the shock experienced in these circumstances were similar to the reaction of a driver who brushes away a bee from her face with a consequence of momentary loss of control of her vehicle, see Scholz v Standish, supra. In that case, the learned Judge on appeal to this Court, held that the appellant had failed to prove negligence of the respondent in any relevant particular. The learned Judge in that case referred to the dicta of Lord Blackburn in his judgment in the Stoonvaart Maatshappy Nederland v Peninsual Oriental Steam Navigation Company supra, and to the evidence of a medical expert as to the reaction of a driver stung on the nose by a bee; see the reasons of Ross J at page 126-127. 17. Counsel for the respondent in his submissions, repeated the steps of reasoning adopted by the learned Trial Judge and emphasised that the rapid and forceful application of the brakes, was the cause of the loss of directional control of the vehicle. He submitted that on those findings of fact, and the inferences to be drawn from them, the learned Trial Judge was entitled to reach the conclusion that negligence had been established, and that this finding as a finding of fact should not be disturbed; see Edwards v Noble

(1971) 125 CLR 296. Further, counsel for the respondent referred to the preference made by the learned Trial Judge to the evidence of Mr Hall as opposed to that of Mr Aust. Having made those findings of facts, the learned Trial Judge:-
    1. Found that the appropriate response of the appellant
    would have been to maintain the steering stability of the car
    while slowly bringing down the speed of the car by braking
    (albeit less forcibly).
    2. Found that the appellant's response to the tread failure
    was therefore inappropriate, and
    3. Found that the submission that the appellant had acted "as
    an automation" was not supported by the evidence. 18. In summary, counsel for the respondent submitted that -
    (a) The appellant was presented with an emergency which was
    capable of control by a reasonably competent driver, and
    (b) Had sufficient time to make a decision what to do about the
    emergency, and
    (c) Decided to break heavily, causing her vehicle to commence a
    yaw, which in turn led to the rollover. 19. In these circumstances, it was submitted by counsel for the respondent that the learned Judge correctly applied the law in concluding that-
    (a) the appellant was to be judged by the standard of:-
    "a reasonably fit and alert driver .... who is sound in mind
    and limb and who makes no errors of judgment, has good eye sight
    and hearing, and is free from any infirmity"; see Nettleship v
Weston (1971) 2 QB 691.
    (b) In saying that:- "the same standard, of course, applies
    also to a learner driver, an aged and infirm driver, a sick
    driver, a driver suffering from fear of spiders, bees and moths
    in the car, and a driver suffering a severe coughing fit"; see
    Leahy and the State of South Australia v Beaumont and Others
(1981) 27 SASR 291.
    (c) In concluding that by rapidly and forcibly applying the
    brakes in the circumstances of the subject accident, the
    appellant did not satisfy the above mentioned requirements and
    was negligent. CONCLUSION
20. In my opinion, the learned Trial Judge was not entitled on the evidence as a whole to find that the driving of the appellant was "inappropriate." The findings of the learned Trial Judge clearly establish that the separation of the tread in the rear driver's side tyre was an unexpected and sudden event. In my judgment, the application of the brakes was an "instantaneous reaction." I would not be prepared to find that on the well-recognised test of the prudent and reasonably competent driver, that this reaction was in all the circumstances of the case, one where it is possible to draw an inference of negligence. There is no direct evidence of negligence on the evidence. In so far as the learned Trial Judge drew an inference of negligence from the whole of the circumstances, I am of the opinion that there were insufficient facts to enable him to do so. As the learned Trial Judge himself found -
    (a) On Mr Hall's evidence it was necessary to apply some
    braking to slow down the vehicle. The evidence does not
    disclose any primary fact from which the learned Trial Judge
    could say that the presence of braking by the appellant was so
    hard as to draw an inference of incompetent driving at that split
    second when the bang noise occurred, and
    (b) The learned Trial Judge expressly found that her driving up
    until that moment had been unexceptional, as to speed, course and
    control, and
    (c) There is no evidence that, I can see to suggest that even
    the slightest application of brakes would necessarily have made
    the vehicle "controllable" from that point on. 21. I accept the submission of counsel for the appellant, that the standard applied by the learned Judge here, was a standard of perfection. That is not an appropriate standard of care as the learned Judge himself recognised in his reasons for judgment when he said:-
    "In determining whether or not the driving of any particular
    driver has fallen short of the required standard, the law of
    negligence on the highway uses an objective test. It uses the
    standard of a reasonable, fit and alert driver. The law does not
    allow for the individual idiosyncrasies or weaknesses of the
    particular driver, nor does it readily accept any difficulties
    which might be created for him by ill health or disability. The
    standard is impersonal and universal. It is fixed in relation to
    the safety of other road users, and for that reason it is in no
    way related to the degree of proficiency or degree of experience
    which might or might not have been attained by the individual
    driver whose manner of driving is under scrutiny. It follows
    therefore, that every driver must drive in as good a manner as a
    driver of skill, experience and care. He must drive as driver
    who is sound in wind (sic) and limb and who makes no errors of
    judgment, has good eyesight and hearing, and is free from any
    infirmity, Nettleship v Weston, supra, per Lord Denning MR at
    699." 22. After reciting the particulars of negligence alleged by the respondent in these proceedings, the learned Judge appears to properly direct himself as to the onus upon the plaintiff to establish the appellant's negligence. He expressly states that there is no presumption of negligence, because the accident may happen from a variety of causes, some of which may be imputable to fault and others may be due to causes for which he is not in any way responsible. But then, in his final conclusion, the learned Trial Judge finds that in this case, there was negligence. Clearly, that finding of negligence is based on a view of the evidence of Mr Hall and the tests that he carried out. In my judgment, those tests do not establish the appellant's negligence on any ground set out in the particulars. I would allow the appeal and set aside the conclusion of the learned Trial Judge on the preliminary issue as to the proof of negligence in this case. In my opinion, the respondent had not established negligence in this case. Accordingly, on the facts as proved I am of the opinion that the respondent failed to prove her case and the appeal should be allowed. I would set aside the order of the learned Trial Judge and substitute an order that the defendant was not negligent and an order on the preliminary issue that the respondent's claim for damages should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 DUGGAN J I agree that this appeal should be allowed for the reasons given by Legoe J.