Lowe, Anthony David v Menzie, Mark

[1998] TASSC 162

162/1998

PARTIES:  LOWE, Anthony David
  v
  MENZIE, Mark

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  441/1997
DELIVERED:  23 December 1998
HEARING DATE/S:  15, 16 and 19 October 1998
JUDGMENT OF:  Evans J

CATCHWORDS:

Torts - Negligence - Apportionment of responsibility and damages - Principles and mode of apportionment - Degree of departure from standard of care - Loaded log truck travelling on narrow gravel road - Whether precautions taken to prevent accident - Apportionment of responsibility eighty per cent plaintiff, twenty per cent defendant.

Pennington v Norris (1956) 96 CLR 10; Smith v McIntyre [1958] Tas SR 36, applied.
Aust Dig Torts [70]

REPRESENTATION:

Counsel:
             Appellant:  J E Green
             Respondent:  M D Docking
Solicitors:
             Appellant:  John Green
             Respondent:  Docking and Associates

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  162/1998
Number of pages:  7

Serial No 162/1998

File No 441/1997

ANTHONY DAVID LOWE v MARK MENZIE

REASONS FOR JUDGMENT  EVANS J

23 December 1998

The plaintiff sues the defendant for damages for personal injuries suffered in a motor vehicle accident on 18 November 1996.  The hearing before me was confined to the issue of liability.

The plaintiff is a log truck driver.  Early on the morning of the accident, the plaintiff collected a load of logs from a site on the Andromeder Road.  He was taking the logs to Longreach.  His journey began by travelling east on thirty-one kilometres of gravel road.  First he travelled along the Andromeder Road for six kilometres to its intersection with the Styx Road.  Then he was to travel twenty-five kilometres along the Styx Road to its T-junction with the Gordon River Road, at Karanja.

The plaintiff was driving a CH Mac log truck.  The prime mover was about fifteen feet long and the trailer was about thirty-three feet long. The total weight of the loaded unit was about forty-three tonnes.

The plaintiff and the defendant both worked for Les Walkden Timber Harvesting.  The defendant is a tree faller.  He had been employed by Les Walkden Timber Harvesting for about four years prior to the accident.  On the morning of the accident, the defendant was driving west along the Styx Road to work at the Andromeder Road site.  He was driving a red Toyota Hilux four wheel drive vehicle.

The accident occurred on a straight section of the Styx Road approximately 220 metres long ("the straight") which is about 2.8 kilometres west of the junction of the Styx Road with the Gordon River Road.  The parties' vehicles met towards the western end of the straight which ends with a gradual but blind left-hand corner ("the corner").  As the plaintiff's vehicle travelled east through the corner on to the straight, the defendant's vehicle was travelling west along the straight towards the corner.  At the point where the vehicles met, the terrain slopes from the plaintiff's right to his left.  On the left, the gravel verge drops away about five feet.  On the right, the road is cut into the bank and there is a shallow natural gutter along the side of the road.

On seeing the plaintiff's truck, the defendant pulled the Toyota to his left to get as close as possible to the gutter.  The plaintiff pulled the truck to his left and the vehicles passed.  As or shortly after the vehicles passed, the wheels on the left-hand side of the plaintiff's trailer got into the soft gravel edge of the road.  The trailer began to drag to the left down the verge.  The plaintiff accelerated to try to maintain momentum and pull the trailer back onto the travelled portion of the road.  This continued to a point approximately 140 metres beyond where the vehicles passed, by which time the trailer was so far down the verge that it turned over and tipped the prime mover on to its side.  After the accident, the prime mover was on its side on the road and the trailer was angled away to the left from the prime mover and off the side of the road.

The defendant did not see the plaintiff's accident and continued his journey after the vehicles passed.  He returned to the scene when the plaintiff requested that he do so on his UHF radio.

The Styx Road

At the entrance to the Styx Road from the Gordon River Road there is a sign which reads:

"UNAUTHORISED ENTRY PROHIBITED.
ENQUIRIES:  ANM FOREST & LOGGING
MAYDENA.
PHONE 882371".

There is no gate at the entrance.  About seven kilometres from the entrance, there is a gate which is opened each morning and locked each night.  The gate is closed to protect logging contractors' equipment which is left on site.  During the day no gate or the like restricts public access to the road.  It is likely that the road is used from time to time by people interested in recreational pursuits, such as shooting and bushwalking.  There was evidence that it is used by "a lot of wood hookers … people collecting wood and soforth."

The Styx Road is a typical gravel logging road.  Its width varies.  After the first seven kilometres there are some places where it is too narrow for vehicles to pass with safety.

The common practice

Prior to the accident's occurrence, the plaintiff and the defendant had conversed via UHF radio.  Each knew that the other was approaching. All logging trucks are fitted with radios and many vehicles used by workers in the forestry and logging industry have UHF radios.

It is the practice for vehicles fitted with UHF radios to communicate when they are using forestry and logging roads, and roads of limited width.  The UHF channel to be used in a particular area is a matter of common knowledge.  In the case of the Styx Road, there is a sign
"Õ UHF 29" painted on a large stump near the entrance from the Gordon River Road.

Consistent with the practice, upon a vehicle fitted with a UHF radio beginning a journey on the Styx Road, the driver turns the radio to channel 29, advises of his or her position and enquires as to other users of the road.  This is repeated from time to time during the course of the journey.  The radio is left on to receive messages from other users of the road.  In this way, drivers are forewarned of oncoming vehicles and can take appropriate precautions.  No doubt due to the width and momentum of loaded log trucks and the risks of getting them off the travelled or sound section of the road, the practice is for unloaded trucks and other vehicles to allow loaded log trucks right of way.  Ordinarily, log trucks go in empty and come out loaded, so that it is assumed that a truck coming out is loaded.  The practice is informal and based largely on common sense.  Drivers are introduced to the practice by experience.  They are not given any formal, written or oral directions on the practice by employers, the Forestry Commission or the like.  As to the practice, the plaintiff said:

" … if you're coming in and you're unloaded or you're a smaller vehicle and you're in contact with loaded vehicles coming out and the road isn't sufficiently wide enough, you pull up, pull over and allow them to go past."

Mr Ackerly, a log truck driver, with experience working on the Styx Road, said the practice was for the driver of an unloaded truck or a car to select a wide section of the road as a passing point such as an area where there was a driveway or a quarry and to stop there to allow the loaded truck to pass.  He said he would tell the driver of a loaded truck where he was going to stop.

Mr Jacobson, another log truck driver with experience on the Styx Road, said that having established the position of an oncoming loaded truck, he would find a suitable spot to pull over on the side of the road and wait for it.

Prior to the accident, the defendant had worked in the Styx Road area for about four years.  He drove along the road every working day.  He said his practice was to slow down to let loaded log trucks past, and dependent upon the circumstances he would pull right over and stop.  He rejected cross-examination to the effect that the practice required the vehicle giving way to pull over and stop at a safe place on all occasions.  He said that this depended upon the condition of the road where the vehicles were to pass.  No one had ever complained to him about failing to pull over and stop on every occasion that a loaded log truck came by.  He volunteered that users of the Styx Road would be taking a big chance if they did not have a UHF radio in their vehicle.

Mr Flakemore, the logging supervisor for Les Walkden Timber Harvesting for the past seven years, has been involved in the logging industry for many years.  He refuses to have a UHF radio in his vehicle.  He considers "they are only things for people to chatter on".  He said that it was a common courtesy for drivers on logging roads to give way to loaded log trucks.  He could recall a sign in the Florentine Valley logging area many years ago, telling drivers to give way to loaded log trucks.  His experience was that vehicles would pull over and allow loaded trucks to pass, and, dependent upon the road conditions, the vehicle giving way would stop.

The plaintiff's counsel submitted that it was a requirement of the common practice of giving right of way to loaded log trucks that on every occasion the vehicle which gave way would stop at a safe place until the loaded truck passed.  I do not accept the practice involved such a rigid requirement.  The practice was not formal and the action taken by drivers in conformity with the practice depended on all the circumstances, including such matters as the width and soundness of the road, and where the vehicles were likely to meet.

Credibility

There is a substantial conflict between the evidence of the plaintiff and the defendant about the accident and the conversations they had on their UHF radios prior to and subsequent to its occurrence.  The plaintiff was an unsatisfactory witness.  His recall of relevant events was poor and unreliable.  Where there is a conflict between the evidence of the plaintiff and the evidence of the defendant, I prefer the defendant's evidence.  The following are some of the matters upon which my adverse assessment of the plaintiff's evidence is founded.

The plaintiff gave evidence about the point on the roadway where his vehicle was when he first saw the defendant's vehicle, and the point on the roadway where the vehicles passed.  He later marked these points on a photograph of the roadway (Exhibit P1.7).  On the basis of these markings, the plaintiff's vehicle was passed the defendant's vehicle before he saw it.  This was contrary to the plaintiff's oral evidence and is plainly incorrect.  When the contradiction was pointed out to the plaintiff, it took him some time to recognise the inconsistency and acknowledge that his markings on the photograph were wrong.

He gave evidence that he measured the distance from the corner to the position where his truck finished up following the accident at eighty metres.  When cross-examined about this distance, he said he was not sure what it was, but that his truck finished up not much further than halfway along the straight from the corner.  He later gave evidence that he had measured the length of the straight with a tape at 220 metres.  On the basis of this measurement, his truck finished up 110 metres from the corner.

In answer to interrogatories sworn on 15 October 1997, the plaintiff said that the distance between his vehicle and the defendant's vehicle when he first saw it was about thirty metres.  In his evidence he initially said that this distance was thirty to fifty metres.  Under cross-examination he said that when he first saw the defendant's vehicle it was roughly halfway along the straight, which in the light of his measurement of the length of the straight would place it roughly 110 metres away.

Findings

I find that on the morning of the day of the accident, as the defendant turned his vehicle into the Styx Road from the Gordon River Road, he turned on his UHF radio and enquired whether anyone was coming out of the Styx Road.  The plaintiff responded.  They did not need to identify each other as they knew each other's voices.  The plaintiff said that he was coming past the five kilometre mark.  The defendant advised that he had just turned into the Styx Road.  Both parties agreed that a conversation to this effect occurred.

The defendant gave evidence that a short while later the parties exchanged reports on their respective positions, and that there was a further conversation as the defendant drove along the straight where the vehicles met.  The effect of that conversation was that the parties were not far from each other.  Whilst the plaintiff denies that these conversations occurred, for the reasons I have already given, I prefer the defendant's evidence on this to that of the plaintiff.

The defendant had been driving at about sixty to seventy kilometres per hour.  Because he knew the vehicles were closing, he slowed his Toyota as he drove along the straight.  The defendant did not give an estimate of the distance between the Toyota and the plaintiff's truck when he first saw it coming through the corner.  He did indicate on a photograph of the road (Exhibit D5) the position of the Toyota when he first saw the plaintiff's truck.  That position is a comparatively short distance from the corner.  Looking at the photograph, my highly speculative estimate of the distance that would have separated the vehicles when the defendant saw the plaintiff's truck is between thirty and forty metres.  As already mentioned, the plaintiff's evidence of the distance between the vehicles ranged between thirty metres and 110 metres.  I am satisfied that the distance was at the lower end of that range.  It is apparent from what occurred when the parties first saw each other that they were sufficiently close for both to consider it necessary to immediately take evasive action, and sufficiently far apart for them to have time to do so.

The defendant had slowed his Toyota to about ten kilometres per hour by the time he saw the truck.  The plaintiff was travelling at about sixty-five kilometres per hour.  The truck was in the centre of the road, straddling the imaginary centre line.

The plaintiff gave evidence that he measured the width of the road in about October 1997.  The travelled portion was thirteen feet wide and the full width of the road from edge to edge was twenty-one feet.  His evidence of the measurements was not challenged and no contrary evidence was given.  I accept this evidence as an approximate guide to the width of the road at the time of the accident.  The truck was eight feet wide and the Toyota was between five and six feet wide.

The defendant says that when he first saw the truck, the Toyota was "pretty much between" the gutter on his left-hand side of the road and the middle of the road.  This places the right-hand side of the Toyota approximately four feet on to the travelled portion of the road and approximately two and a half feet from the centre of the road.  The left side of the Toyota was approximately two and a half feet from the gutter.  The truck was in the centre of the road, which puts it approximately four feet on the wrong side of the road.  On this basis, had the vehicles continued without changing direction, they would have collided.  Whilst these calculations are no more than approximate indications of the position of each vehicle at the time the parties first saw each other, they provide some confirmation for the need to take evasive action to allow the vehicles to pass.  I am satisfied that when the parties first came into each other's view, the plaintiff's truck was in the centre of the road and the right side of the defendant's vehicle was sufficiently near the centre of the road for each driver to consider it necessary to pull his vehicle to its left.

The vehicles were closing at a combined speed of approximately seventy-five kilometres per hour.  Each driver had sufficient time to pull his vehicle to its left before they passed.  The Toyota was moved as far as it could go to its left so that its left wheels were in, or almost in, the natural gutter on the side of the road.  The Toyota was also slowed to about five kilometres per hour by the time the vehicles passed.

The defendant's counsel submits that I should not be persuaded that the need for the plaintiff to pull his truck to the left to pass the Toyota played any part in the accident.  No other explanation for the trailer sliding off the side of the road was put forward.  The trailer began to slide off the side of the road as or shortly after the vehicles passed and the unit tipped over within 140 metres of the vehicles passing.  The scene of the accident was inspected by a number of people including the defendant and one of the witnesses, Mr Blakewell.  No evidence was called to suggest that what was apparent at the scene following the accident was inconsistent with the accident having occurred as has been described.  Whilst it is conceivable that the accident occurred because of inattention on the part of the plaintiff, this is unlikely.  The accident happened on a straight section of road.  I am satisfied, on the balance of probabilities, that the passing manoeuvre caused the plaintiff to pull the truck sufficiently far to the left of the road for the left wheels of the trailer to collapse the edge of the road or slide off the verge.  The plaintiff accelerated to try to drag the trailer back on to the travelled portion of the road, this was unsuccessful and the unit was tipped onto its side.

After the vehicles passed, the defendant continued around the corner and used his UHF radio to ask the plaintiff whether he was being followed by any other truck.  The plaintiff did not reply, probably because he was otherwise engaged extricating himself from the truck.  A short while later, the defendant received a request from the plaintiff to go back and he did so.  The plaintiff says that this conversation was precipitated by an enquiry from the defendant as to whether he was all right.  The defendant denies this conversation.  For the reasons I have already given, I accept the defendant's evidence on this.  Both parties say that the defendant simply requested the plaintiff to go back and there was no further discussion.  This is significant as the defendant returned to the scene without any further enquiry.  The plaintiff did not tell the defendant that he had had an accident.  The defendant turned his vehicle around and drove back without asking why he should do so.  The defendant may have assumed that something was wrong because the plaintiff had not responded to his call immediately after they passed.  This assumption does not explain the defendant's willingness to turn back.  In the absence of a belief that the plaintiff had had an accident or stopped for some other reason, the defendant was turning around to follow the plaintiff's truck to Longreach.  I am satisfied that the tightness of the manoeuvre when the vehicles passed gave the defendant reason to suspect that it may have caused an accident and this suspicion was a factor in his decision to turn back without asking the plaintiff why he should do so, or checking that the plaintiff had stopped.

When the defendant arrived at the plaintiff's truck, it was apparent that the plaintiff was hurt.  He had a deep gash to his head.  After briefly inspecting the truck, the defendant set off to drive the plaintiff to New Norfolk for medical assistance.  They were met by the plaintiff's wife before they got to New Norfolk.  Neither at the scene, nor in the course of the journey, was there any discussion between the plaintiff and the defendant about the cause of the accident.  The plaintiff did not accuse the defendant of forcing his vehicle off the road, or breaching the common practice of giving way to loaded trucks.  The defendant did not ask the plaintiff what had caused him to run off the road.  Whilst my impression of both parties is that they are men of few words, I do not consider them to be so taciturn as to not discuss the cause of the accident without reason.  I am satisfied that the parties deemed it prudent not to discuss the cause as they were aware that there was fault on both sides and they did not want to argue about it.  The plaintiff did make a comment to the defendant to the effect that he was concerned that he would lose his job.  Implicit in that comment is an acceptance by the plaintiff of blame for the accident.  He was not likely to lose his job if he was in no way at fault.  I do not construe this comment as unqualified acceptance of responsibility by the plaintiff.  I suspect that, in part, the comment was made in the hope of eliciting a sympathetic response from the defendant which included a partial acceptance of responsibility for the accident.

On the day of the accident, the plaintiff's truck was towing a skeleton trailer.  The plaintiff said there is more movement and sway when towing a skeleton trailer than when towing an ordinary jinker.  He said that a skeleton trailer would pull more to the left as he came around the corner than an ordinary jinker would have.  This did not cause the plaintiff to drive at a slower speed than usual.  He said that the maximum speed at which he drove on the Styx Road was between sixty and seventy kilometres per hour.  That was the speed at which he was driving when the vehicles met.  Under cross-examination, the plaintiff's response to a suggestion that he should have been travelling at a slower speed was, that to have done so, would have added about half an hour to the time for the trip.  The plaintiff denied allowing his concern about the time taken for the trip to impact on his regard for safety.  I reject that denial.  I am satisfied that the plaintiff's concern about time was a factor in his failure to slow the truck and take appropriate precautions as he approached the defendant's vehicle.

The speed and position of the truck on the road as it came out of the corner was the prime cause for the accident.  The plaintiff knew he was closing on the defendant's vehicle.  He should not have taken it for granted that the defendant would have completely cleared the road and that it would not be necessary for him to manoeuvre his truck past the defendant's vehicle.  The plaintiff wrongly drove as if he was entitled to make, and could safely make, those assumptions.

There had been no conversation between the plaintiff and the defendant about the presence of other vehicles on the road.  The plaintiff did not have the defendant's vehicle in his view.  Whilst he had reason to anticipate that the defendant would comply with common practice and pull his vehicle off the road to make way, nothing to that effect was said by the defendant to the plaintiff in their UHF radio conversations.  The existence of the common practice did not absolve the plaintiff from responsibility to take reasonable care.  The situation is analogous to that of a driver who proceeds on the assumption that another driver will comply with a traffic regulation.  As to traffic regulations, the High Court said in Sibley v Kais (1967) 118 CLR 424 at 427:

"But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves.  The common-law duty to act reasonably in all the circumstances is paramount.  The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations ; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law.  Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case."

As the plaintiff drove through the corner he should have slowed his truck and moved it left from its position straddling the centre of the road so as to be able to avoid any oncoming vehicle.  Bearing in mind the size and momentum of the truck, this was particularly important in the interests of other road users.

Whilst I consider that the plaintiff was primarily responsible for the accident, I am satisfied on the balance of probabilities that the defendant's want of care was also a causative factor.

The defendant must have known that the plaintiff would anticipate that the defendant would make way for the truck.  He acknowledged that it was likely that the plaintiff's truck would be travelling in the middle of the road.  He knew the plaintiff was close and that it was likely that the plaintiff was coming through the corner.  The defendant was well aware of the size and momentum of a loaded log truck and should have appreciated the difficulties and risks of manoeuvring a loaded log truck near the edge of a gravel road with a five foot drop on its outer verge.  As the defendant approached the corner, he should either have stopped his vehicle as close to the left-hand side of the road as possible, or, at the least, travelled at a very slow speed as far to the left of the road as possible.  Had he done so, it would not have been necessary for the parties to pull their respective vehicles to the left in order to avoid each other and the accident would not have occurred.

As to what is a just and equitable apportionment of responsibility between the parties, I direct myself in accordance with Pennington v Norris (1956) 96 CLR 10, and Smith v McIntyre [1958] Tas SR 36.

The defendant had taken some precautions.  He had slowed his Toyota and moved towards the left-hand side of the road.  He should have moved as far to the left of the road as possible and further slowed, if not stopped his vehicle.  His breach is one of degree insofar as he did not take his precautions far enough.  Notwithstanding that the plaintiff knew that the defendant's vehicle was near, the plaintiff took no precautions.  He proceeded on the assumption that the defendant would have cleared the roadway and it would not be necessary to manoeuvre past the defendant's vehicle.  The plaintiff maintained the speed of his truck and continued to drive in the centre of the road.  Reflecting the extent to which I assess that each party departed from the standard of care required of them, I apportion responsibility eighty per cent against the plaintiff and twenty per cent against the defendant.