Lourakis v Mason

[1990] TASSC 85

Serial No B8/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Lourakis v Mason [1990] TASSC 85; B8/1990

PARTIES:  LOURAKIS
  v
  MASON

FILE NO/S:  LCA 56/1990
DELIVERED ON:  22 March 1990
JUDGMENT OF:  Underwood J

Judgment Number:  B8/1990
Number of paragraphs:  11

Serial No B8/1990
List "B"
File No LCA 56/1989

LOURAKIS v MASON

REASONS FOR JUDGMENT  UNDERWOOD J

(GIVEN ORALLY)  22 March 1990

1. This is an appeal from part of a judgment given by a Commissioner sitting in a Court of Requests. The respondent brought proceedings against the appellant to recover $545.00 damages being the cost of repairs to his motor vehicle which was involved in an accident on 2 December 1987. The appellant counter claimed to recover $1,564.00 for the cost of repairs to his motor vehicle which was being driven by his wife who, by admission, was at all material times his agent. Quantum of both claims was admitted at the trial.

1. The learned Commissioner found that the respondent had failed to establish on the balance of probabilities that the appellant's agent, (to whom I shall refer for convenience hereafter as the appellant) was negligent and dismissed the claim. He also found that the appellant had failed to establish that the respondent was negligent and dismissed the counter claim. He made no order for costs. This appeal is confined to the last two mentioned orders.

1. In the late afternoon of 2 December 1987 the respondent was driving his Holden motor vehicle in a northerly direction, along Sandy Bay Road, just north of its junction with Churchill Avenue. That section of road forms a gradual sweeping curve to the right for vehicles travelling in the same direction as the respondent. It was or had been raining and the road surface was wet.

1. Before the respondent reached Churchill Avenue, the appellant drove down that avenue and turned left onto Sandy Bay Road to travel in the same direction as the respondent. Her daughter and her daughter's fiancé were passengers in the car. The appellant intended to visit her sister who lived on the eastern side of Sandy Bay Road, some short distance north of the junction with Churchill Avenue. The respondent was travelling at about thirty miles an hour, about one to one and a half car lengths behind another vehicle. Before reaching the Alexandra Battery, the respondent said that the car in front of him swerved to its right and revealed the appellant's car at an angle across the road and blocking his path. He applied the brakes and skidded into it, damaging the left front of his vehicle and the right side of the appellant's vehicle.

1. There was a sharp conflict of fact between the evidence of the respondent and the evidence of the appellant and the two passengers in her car. According to them, the appellant slowed down and stopped with her vehicle at an angle across the road preparatory to making a "U" turn to park outside her sister's house. She then became aware of traffic behind her, which inferentially was the respondent and the vehicle in front of him, and decided against making the "U" turn. The appellant then reversed back a metre or so until the car was parked parallel and quite close to the kerb. She turned the key off and was about to get out when the respondent skidded into her vehicle.

1. It is unnecessary for me to examine the evidence any further for the learned Commissioner made detailed findings of fact sufficient to enable this appeal to be determined. Generally he preferred the evidence of the passengers in the appellant's car. He found that the road surface was wet and slippery and that there was an oil slick somewhere in the vicinity of the accident, but he could not make, "any positive finding that that oil slick had necessarily contributed towards the accident". He said:

"The defendant's agent had proceeded north along Sandy Bay Road from its intersection with Churchill Avenue which is maybe a little over a hundred or more metres to the south of the accident scene but at the time obviously well ahead of the plaintiff and had stopped in the general area of the accident preparatory to making a 'U' turn which would then have brought her into a parked position outside the residence occupied by her sister. The defendant's agent changed her mind as to the 'U' turn as a result of seeing some traffic and decided instead to park. It seems common ground then that Miss Lourakis who at that stage was the back seat passenger was to take over driving the vehicle which was to go onto other points. I find then that the vehicle of the defendant did become stationary at the side of the road, not hard against the kerb, but an ordinarily parked position but some little distance out. [sic] The car ahead of the plaintiff passed the defendant's vehicle which at this stage was stationary. The plaintiff, Mr Mason saw the defendant's car. For some reason which I think may have been probably driver inexperience, he applied his brakes. The plaintiff's vehicle thereupon went into a skid and in this instance I accept the evidence of Miss Lourakis that the plaintiff's vehicle came at an angle into the vehicle driven by her mother."

1. Earlier during counsels' addresses, the learned Commissioner had commented that inexperience on the part of the respondent was not negligence, but I do not understand that the learned Commissioner was thereby asserting the general proposition that the standard of care imposed on a driver varies according to his or her experience because of course, that is not the law as is clearly stated in his usual forthright style by Lord Denning in Nettleship v West [1971] 2 QBD 691 at p699.

1. The law expressed in the Local Courts Act, s123, the Rules of Court O76, r54 and as expounded by the former Chief Justice in Foster v Simpson, No 21/1965, and by the High Court in Warren v Coombes (1979) 142 CLR 531, requires me to reach a decision contrary to that of the learned Commissioner if I conclude that a different inference should be drawn from the found facts which are not in dispute. I refer to this passage in Warren v Coombes (supra) at p552:

"Further, there is, in our opinion no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question."

1. This appeal must be allowed. The inescapable inference to be drawn from the facts as found by the learned Commissioner is that the respondent failed to keep a proper lookout. Had he done so, he would have seen the parked vehicle in sufficient time to avoid it. Whether his failure was simply due to neglect or due to deprivation of opportunity arising from his speed and proximity to the preceding vehicle is unnecessary to decide. He simply failed to see a parked vehicle to his left and front in sufficient time to enable him to make the manoeuvre that a prudent driver would have done in the circumstances, namely, move slightly to the right.

1. This appeal is allowed, that part of the judgment dismissing the counter claim will be set aside and in lieu thereof there will be judgment for the defendant against the plaintiff for $1,564.00.

1. The order that there be no order as to costs will be set aside and in lieu thereof there will be an order that the respondent pay the appellant's taxed costs on the counter claim. There will be a further order that the respondent pay the appellant's taxed costs of this appeal, and I certify that this was a proper matter for the attendance of counsel, and I further grant to the respondent an indemnity certificate pursuant to the provisions of the Appeal Costs Fund Act.