Lowe v Menzie
[2000] TASSC 132
•28 September 2000
[2000] TASSC 132
CITATION: Lowe v Menzie [2000] TASSC 132
PARTIES: LOWE, Christine Anne
(as the Administratrix of the estate
of the late Anthony David Lowe)
v
MENZIE, Mark
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 27/2000
DELIVERED ON: 28 September 2000
DELIVERED AT: Hobart
HEARING DATES: 22 August 2000
JUDGMENT OF: Underwood, Slicer and Blow JJ
CATCHWORDS:
Appeal and New Trial - Appeal - General principles - Interference with discretion of court below - Particular cases - Other matters - Apportionment of blame in motor vehicle cases.
Supreme Court Civil Procedure Act 1932 (Tas), s45(10).
Smith v McIntyre [1958] Tas SR 36; Tamar Park Pty Ltd v Smith [1999] TASSC 16, applied.
Aust Dig Appeal and New Trial [17]
REPRESENTATION:
Counsel:
Appellant: J E Green
Respondent: A R McKee
Solicitors:
Appellant: John Green
Respondent: Gunson Pickard & Hann
Judgment Number: [2000] TASSC 132
Number of Paragraphs: 19
Serial No 132/2000
File No FCA 27/2000
CHRISTINE ANNE LOWE as the Administratrix of the estate of the late
ANTHONY DAVID LOWE v MARK MENZIE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
SLICER J
BLOW J
28 September 2000
Order of the Court
Appeal dismissed.
Serial No 132/2000
File No FCA 27/2000
CHRISTINE ANNE LOWE as the Administratrix of the estate of the late
ANTHONY DAVID LOWE v MARK MENZIE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
28 September 2000
I agree with the reasons for judgment of Blow J. There is nothing I wish to add.
File No FCA 27/2000
CHRISTINE ANNE LOWE as the Administratrix of the estate of the late
ANTHONY DAVID LOWE v MARK MENZIE
REASONS FOR JUDGMENT FULL COURT
SLICER J
28 September 2000
I have had the advantage of reading, in draft form, the reasons for judgment of Blow J and agree with both his reasoning and conclusion. I would dismiss the appeal.
File No FCA 27/2000
CHRISTINE ANNE LOWE as the Administratrix of the estate of the late
ANTHONY DAVID LOWE v MARK MENZIE
REASONS FOR JUDGMENT FULL COURT
BLOW J
28 September 2000
The appellant is the administratrix of the estate of the late Anthony David Lowe ("the plaintiff"), who brought an action against the respondent for damages for personal injuries suffered as the result of a motor vehicle accident which occurred on 18 November 1996 on the Styx Road, an unsealed logging road that runs off the Gordon River Road between Glenora and Westerway. The plaintiff was driving a loaded log truck in an easterly direction, bound for Longreach. The respondent was driving a Toyota Hilux 4 wheel drive vehicle in a westerly direction. They passed one another towards the western end of a straight about 2.8 kilometres west of the junction of the Styx Road with the Gordon River Road. They did not collide, but each driver took evasive action to avoid a collision. The wheels on the left side of the plaintiff's trailer got into the soft gravel edge of the road. The plaintiff accelerated to try to maintain momentum and pull the trailer back onto the travelled portion of the road, but was unsuccessful. His trailer rolled over, and tipped the prime-mover onto its side. The learned trial judge held that both drivers were negligent, and apportioned responsibility 80 per cent against the plaintiff and 20 per cent against the respondent. In the notice of appeal, the appellant sought a determination that the respondent was wholly responsible for the accident. At the hearing of the appeal, her counsel resiled from that position, but submitted that the Full Court should substitute a determination apportioning responsibility more favourably to the appellant. He submitted that an apportionment of the order 60:40 in her favour would be appropriate.
The plaintiff and the respondent each had UHF radios in their vehicles. They had made radio contact before their vehicles came within sight of one another. The learned trial judge accepted unchallenged evidence of a common practice whereby vehicles entering the Styx Road from the Gordon River Road would, from time to time, use UHF Radio Channel 29 to advise of their positions and enquire as to other users of the road, and yield right of way to loaded log trucks. The plaintiff contended that it was an invariable practice that the driver of an unloaded truck or a car would stop to allow a loaded truck to pass. The learned trial judge accepted that the practice was for unloaded trucks or other vehicles to allow loaded log trucks right of way, but did not accept that the practice involved a rigid requirement that on every occasion the vehicle which gave way would stop at a safe place until the loaded truck passed. That conclusion is unexceptionable, since there was evidence that some drivers, though they always gave way, did not always stop.
The learned trial judge made findings as to the dimensions of the road and the vehicles, and the positions and speeds of the vehicles, which were not challenged in this appeal. Those findings were as follows. The travelled portion of the road was 13 feet wide. The full width of the road from edge to edge was 21 feet. The truck was 8 feet wide. The Toyota was between 5 feet and 6 feet wide. When the respondent first saw the log truck, the right side of his vehicle was approximately 4 feet onto the travelled portion of the road, and approximately 2 feet, 6 inches from the centre of the road, while its left side was approximately 2 feet, 6 inches from the gutter, and the truck was in the centre of the road, so that its right side was about 4 feet onto the "wrong" side of the road. The respondent was travelling at about 10 kilometres per hour when he first saw the truck, but the plaintiff was then travelling at about 65 kilometres per hour.
The learned trial judge accepted evidence from the respondent that he and the plaintiff had had three radio conversations after the respondent turned into the Styx Road, the last of them occurring after he had begun to drive along the straight on which they met, which was about 220 metres long. He accepted evidence from the respondent that he had been travelling at about 60 to 70 kilometres per hour, but had slowed because he was approaching the plaintiff. There was no suggestion that the plaintiff slowed down before or after seeing the respondent's vehicle. Each driver moved his vehicle to the left when the other vehicle came into view. The learned trial judge found that the respondent's vehicle was slowed to about 5 kilometres per hour by the time the vehicles passed one another.
The following passages from the learned trial judge's reasons show how he arrived at an 80:20 apportionment:
"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.
…
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 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."
The notice of appeal contains only one ground of appeal. It reads as follows:
"1 The Learned Trial Judge erred in fact and in law in determining that Anthony David Lowe was 80% responsible for the said accident;
particulars
(a)The Learned Trial Judge failed to give sufficient weight in the circumstances of the case to the custom that all vehicles using the road upon which the accident occurred were to give way to loaded log trucks;
(b)The Learned Trial Judge erred in holding that Anthony David Lowe could have safely moved the loaded log truck he was driving from its position straddling the centre of the road;
(c)The Learned Trial Judge erred in holding that Anthony David Lowe's failure to slow the loaded log truck he was driving was causative of the accident that occurred."
As to ground 1(b), counsel for the appellant submitted that the learned trial judge must have overlooked the fact that moving entirely onto the left hand side of the road would have put the left wheels of the log truck on the untravelled or soft edge of the road. I understand that submission to relate to the comment that the plaintiff "should have slowed his truck and moved it left from its position straddling the centre of the road" in the third paragraph quoted in par5 above. However, there is nothing in that passage, or anywhere else in the judgment, to suggest that the learned trial judge ever lost sight of the fact that the truck was 8 feet wide and the travelled portion of the road only 13 feet wide, nor is there any reason to think that he overlooked the significance of those facts. In my view, the plaintiff could and should have moved his truck safely from its position "straddling the centre of the road" to a position as close as reasonably practicable to the left side of the travelled portion of the road. If such a movement had been accompanied by a significant and steady reduction in speed, neither driver would have needed to take much evasive action, and there would have been no need to drive the log truck partly onto the untravelled part of the road.
Ground 1(c) asserts that the plaintiff's failure to slow down was not causative of the accident. Counsel for the appellant made submissions to the effect that the failure of the plaintiff to slow down was not negligent, but did not suggest any basis for a conclusion that the fact that the plaintiff maintained a steady speed played no part in the causation of the accident. Plainly it did. The accident would not have occurred if the plaintiff had been proceeding so slowly and cautiously that there would not have been any need to take sudden evasive action, and to move quickly to his left to avoid the respondent's vehicle. Whether the plaintiff ought to have slowed down is a separate question.
Counsel for the appellant made a submission to the effect that it was not reasonable to expect the plaintiff to travel at a speed substantially less than 60 kilometres per hour, since travelling at such a speed would result in him taking an extra hour or two each day to make two return trips to Longreach. But if the plaintiff had reduced his speed substantially once he came within a few hundred metres of the respondent, I expect his arrival at Longreach would have been delayed by no more than a couple of minutes. The delay would have been insignificant. His need to complete two round trips per day should not therefore be regarded as a factor weighing in his favour.
Counsel for the appellant submitted that it was reasonable for the plaintiff not to have reduced his speed because there was a risk of the left wheels of his trailer travelling onto the soft edge of the road, in which case maintaining speed and momentum would have been desirable so as to increase the chances of successfully accelerating and pulling the wayward wheels back onto the travelled portion of the road. I would reject that submission. If the plaintiff had slowed down, and moved to a position 2 or 3 feet further to his left, so that the left side of the vehicle was still 1 or 2 feet from the edge of the travelled portion, there would have been no need to take drastic evasive action, and all risk of the left hand wheels subsiding into the soft edges could have been avoided. In my view, the plaintiff's duty of care required him to slow down steadily, and to move his vehicle from its position in the centre of the road at least 2 or 3 feet to his left when he was approaching, but still unable to see, the respondent's vehicle.
In any event, the evidence and the learned trial judge's findings do not suggest that it would have been unsafe for the left wheels of the log truck to have travelled off the travelled portion of the road to a small degree. The wheels themselves are wide. There was apparently no evidence as to where, in relation to the edge of the travelled portion of the road, the edges became soft. If the two vehicles had been travelling slowly enough, they could have passed one another without the log truck leaving the travelled portion of the road. If its left side had been about a foot inside the travelled portion of the road, and if the left side of the respondent's vehicle had been about a foot from the extreme edge of the road, there would have been 1 or 2 feet between the vehicles.
I think the learned trial judge was correct to regard the speed and position of the plaintiff's truck, rather than the respondent's failure to go to greater lengths to give way to it, as the prime cause of the accident. The duty of care of each driver required him to slow down and move to the left. The respondent had done both, but should have moved further to the left, and slowed further, or even stopped. But the plaintiff neither slowed nor moved to the left. It is, of course, very significant that there was an established practice for other vehicles to give way to loaded log trucks, but the respondent had already gone a long way towards discharging his duty of care in that regard, and it would have involved very little effort or sacrifice of time on the part of the plaintiff to have moved 2 or 3 feet to his left and steadily slowed his vehicle. In those circumstances, I think it was appropriate for the plaintiff to bear the greater share of the responsibility for the accident.
The learned trial judge was required to apportion liability pursuant to the Tortfeasors and Contributory Negligence Act 1954 (subsequently renamed the Wrongs Act 1954), s4(1), which provided as follows:
"Where a person suffers damage partly of his own fault and partly of the fault of any other person, … the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage …".
That subsection has since been amended by the Tortfeasors and Contributory Negligence Amendment Act 2000, but the Wrongs Act, s5, requires us to disregard that amendment in this case.
In Smith v McIntyre [1958] Tas SR 36 at 51, the Full Court took the view that, once it reached a conclusion that it was open to a trial judge upon his findings of specific facts to hold that the greatest share of responsibility must be taken to lie with one party, the Full Court should not attempt to review the precise apportionment of damages. In Tamar Park Pty Ltd v Smith [1999] TASSC 16 at 13, Slicer J (with whom Crawford and Evans JJ each agreed) reviewed the authorities and concluded that an appellate review of an apportionment of damages for contributory negligence was analogous to the review of an assessment of damages or a sentence.
The learned trial judge's determination as to what reduction of the plaintiff's damages was just and equitable was a discretionary decision. In my view, the Supreme Court Civil Procedure Act 1932, s45(1), restricts the power of a Full Court to vary such a decision. That subsection reads as follows:
"45 ¾ (1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that ¾
(a) the judge has, in fact, declined or failed to exercise the discretion;
(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;
(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or
(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."
The learned trial judge's conclusion was to the effect that a reduction of the plaintiff's damages by 80 per cent was just and equitable. In my opinion, that reduction has not been shown to be manifestly excessive or otherwise affected by any error. Even if the argument that insufficient weight was given to the practice of giving way to loaded log trucks could properly be regarded as an argument that the learned trial judge proceeded on a wrong principle, I would reject it for the reasons I have stated.
I would dismiss the appeal.
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