Messenger v Toll Holdings Limited No. Scciv-02-922

MESSENGER v TOLL HOLDINGS LTD
[2002] SASC 376
Full Court: Doyle CJ, Mullighan and Besanko JJ

DOYLE CJ: I have had the benefit of considering the reasons of Mullighan J and those of Besanko J.
Mullighan J and Besanko J differ, in some respects, as to the bases upon which the plaintiff should be found guilty of contributory negligence. On these matters I am inclined to agree with the trial Judge and with Besanko J.
But even on that basis, in my opinion the amount by which the Judge reduced the damages recoverable by the plaintiff was excessive.
I recognise that an appellate court should show considerable restraint in interfering with an apportionment of liability. But, in my opinion, the plaintiff’s share in the responsibility for the damage is relatively minor, particularly when one bears in mind the points that Mullighan J makes, and even if one concludes that the trial Judge was entitled to treat each of the matters relied on as reflecting fault on the part of the plaintiff.
For those reasons I agree with Mullighan J that the appeal should be allowed, the judgment of the trial Judge should be set aside, and that a judgment should be substituted for the plaintiff for 85 per cent of the plaintiff’s damages to be assessed.
MULLIGHAN J: I have had the advantage of considering the reasons for judgment of Besanko J. I accept his analysis of the evidence as to the circumstances of the accident and I agree with his conclusion that the learned Trial Judge was correct in finding that Mr Martin, the driver of the plaintiff’s truck, was negligent and that his negligence contributed to the accident.
However, in my view, the apportionment of responsibility of 30 per cent to Mr Martin is excessive and should not stand.
The learned Trial Judge and Besanko J have both concluded that Mr Martin was negligent in three respects, driving the truck with a film of dust on the rear offside indicator, reducing the speed of the truck as it approached the intersection where the accident occurred by changing down through the gears and not activating the rear break lights and not looking in the rear vision mirror as he approached the junction and before commencing his turn into Rocky Castle Road.
In my view, it was not established that driving the truck with dust on the cover of the indicator amounted to negligence in the circumstances and, if it did, was a cause of the accident. Clearly, there was a significant amount of dust on the cover. Constable Starks attended the scene of the accident. He told the learned Trial Judge that he observed the light from a distance of one to two metres. He said the colour of the dust on the cover tended to blend in with the colour of the truck. He was asked:
“QWas it easy for you to see it or difficult given the condition of the light.
ANo. I could see it operating yes.”
He went on to say that it would have been difficult to see the light operating because of the position of the sun at the time of the accident which would have been shining towards the right of the truck. He then said:
“QSo, the sun may well have been shining on the right indicator light situated on the right of the truck.
AIt could have, yes. That could be possible, yes.”
Mr Messenger, the plaintiff, also attended the scene of the accident. He saw his truck on its side and the indicator was operating. After the truck was righted, he climbed into the cabin and turned off the indicator for safety reasons so that no electric current would be passing in the truck. In all, he saw the indicator operating for about three quarters of an hour to an hour before he turned it off. A television crew also attended the accident and took a video tape of the truck which showed the back of the truck whilst it was lying on its side. The video tape was admitted into evidence. Perusal of the video tape does not assist in determining the extent of the visibility of the right indicator of the truck.
The evidence of these witnesses is important. It establishes that the indicator was in working order and was operating after the accident which confirms Mr Martin’s evidence that it was activated before the turn. The learned Trial Judge found that Mr Martin indicated his intention to turn into Rocky Castle Road when he was about 320 metres from the intersection.
There was no evidence as to at what distance the activated indicator was visible. Even if the absence of Mr Cooper, the driver of the defendant’s vehicle, from the witness box can be satisfactorily explained, it remains that there was no evidence as to whether he saw the indicator, and if so, when he first saw it.
Mr Martin activated the indicator well before the turn and slowed his vehicle. I do not think the evidence permits a finding that Mr Martin did not comply with his obligations under s 74 of the Road Traffic Act 1961 and Reg 5.12(2) of the Road Traffic Regulations which were in force at the time of the accident.
I do not think it can be inferred from the evidence that the driver of the defendant’s vehicle could not see the indicator operating at all or until it was too late to avoid the accident. It may be that he did not see it until then, but the question is whether he could have seen it if he was keeping a proper lookout. It seems that the learned Trial Judge drew the inference that the dust on the cover of the indicator obscured the view of Mr Cooper and prevented him seeing whether it was operating in time to avoid the collision. I do not think the evidence justifies that inference.
I turn to the second matter. The learned Trial Judge concluded that by slowing the vehicle from 80 kilometres per hour, a speed significantly below the speed limit, and by using his gears and not his brakes, Mr Martin created a hazard over a distance of 300 metres and that in those circumstances he had to keep a lookout for traffic approaching from his rear.
The driver of any vehicle turning to the right must keep a lookout for traffic approaching from the rear, but I do not think the need for that lookout exists or increases because a vehicle is slowing. There was a bend in the road about 500 metres from the intersection. When the defendant’s vehicle came around that bend, Mr Cooper had a clear and uninterrupted view of the road ahead and of the plaintiff’s truck. Mr Martin was driving the truck appropriately. He was not under any obligation to use the brakes and not the gears to slow the vehicle. It was a clear sunny day and he could drive his vehicle at any speed below the speed limit. The learned Trial Judge erred in her conclusion that Mr Martin drove negligently for this reason.
The failure of Mr Martin to check his rear vision mirror to see if traffic was approaching from behind at critical stages amounts to negligence. A driver leaving a roadway should check traffic in both directions and only proceed if it is safe to do so. Mr Martin failed in that duty.
The apportionment of responsibility fixed by the learned Trial Judge was incorrect. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, the High Court said at 494:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] TasSR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
The culpability of Mr Cooper was the major cause of the accident. He drove his heavy vehicle with the plaintiff’s vehicle in sight for a considerable period of time. As I have said, he had a clear and uninterrupted view of that vehicle at all times. He attempted to pass the vehicle as it was making a turn to the right. Mr Martin was driving relatively slowly and had signalled his intention to make the turn about 320 yards before he commenced to do so. This was not a sudden turn. Photographs admitted into evidence at the trial show that Rocky Castle Road runs through open and relatively flat countryside with some vineyards. The evidence does not disclose whether Mr Cooper was familiar with the locality but it is likely that, if he was keeping a proper lookout, he would have been aware of a minor road ahead to the right, being Rocky Castle Road, which should have alerted him to the possibility that the plaintiff’s truck was slowing to turn right into that road.
The failure of Mr Martin to keep a lookout to the rear contributed to the accident but in a minor way compared to the negligence of Mr Cooper.
It was acknowledged by Mr Martin that if he knew of the presence of the defendant’s vehicle, he could have decided to not make the turn and continue on with the consequence that the defendant’s vehicle would have passed him on his right. That is, of course, possible but it is speculative because Mr Cooper’s appreciation of the circumstances at particular times is not known. Whether he would have continued with the passing manoeuvre, or reacted in some other way, can only be the subject of speculation.
In my view, the degree of culpability of Mr Cooper far exceeded that of Mr Martin. The degree of his departure from the standard of care of a reasonable man was very substantial compared to that of Mr Martin. His negligence was much greater in the causing of the damage. To my mind to attribute nearly one-third of the responsibility to Mr Martin is not justified by the circumstances. I am mindful of the observation of the High Court in Podrebersek cited by Besanko J in his reasons for judgment, but I think this is a case in which we should interfere. I would have apportioned responsibility of 15 per cent to Mr Martin. The apportionment of the learned Trial Judge is double that amount and is more than a mere legitimate difference of opinion.
I would allow the appeal and set aside the judgment of the learned Trial Judge and enter judgment for the plaintiff that he recover 85 per cent of his damages.
BESANKO J: This is an appeal by a plaintiff from a decision of a Judge of the District Court. The plaintiff claimed damages for damage to a vehicle owned by him, namely, a 1976 Mack tip truck, registered number VTN-177, and for economic loss suffered by him as a result of the truck being off the road during the time it was being repaired. The amount of the plaintiff’s damages was agreed at $65,000. The damage to the plaintiff’s truck arose out of a collision between his vehicle and the defendant’s vehicle on 3 March 1998 at the intersection of Rocky Castle Road, McBain Road and Riddoch Highway approximately 15 kilometres north of Penola in the State of South Australia.
The defendant’s vehicle was a rig consisting of a 1997 Kenworth prime mover, registered number DMK-461, lead B-double trailer and rear B-double trailer. The trailers were carrying a Carrier fridge motor van. The defendant counter-claimed for damage to its vehicle, work at the collision scene and towage, and loss of income during the period when the vehicles comprising the rig were off the road being repaired. The defendant’s damages were agreed at $251,677.88.
The Judge’s Findings
At the time of the collision, the plaintiff’s truck was being driven by Mr Martin. It was late in the morning and it was a bright sunny day. Mr Martin was carrying a load of limestone rubble, which he agreed might have weighed in the order of ten tonnes. Mr Martin was carrying the load from the Mildara Quarry to a point along Rocky Castle Road where the limestone was to be deposited and then used as “road material”. The route Mr Martin took required him to travel north along Riddoch Highway and turn right into Rocky Castle Road. Mr Martin had carried loads of limestone rubble on the previous day, and had carried one or two loads before the journey during which the collision occurred.
Mr Martin was driving in a northerly direction along Riddoch Highway at a speed of not more than 80 kilometres per hour. He was approaching an intersection of Rocky Castle Road to the east and McBain Road to the west. Rocky Castle Road is an unsealed road. The Judge found that at the point where Riddoch Highway and Rocky Castle Road intersect a person can view the highway to about 520 metres to the south where there is another curve and about 570 metres to the north where again the highway veers out of sight.
The speed limit in the area in which the collision took place is 110 kilometres per hour for motor cars and 100 kilometres per hour for trucks, including the two trucks involved in the collision.
Mr Martin was the only witness called who gave an eye witness account of the collision. I mention at this point that the driver of the defendant’s vehicle, Mr Cooper, was not called to give evidence by the defendant. A solicitor for the defendant gave evidence before the Judge as to various attempts made by the defendant’s solicitors to contact Mr Cooper. The enquiries conducted revealed that Mr Cooper may be a resident of Whangarai, New Zealand. However, it is not certain that this is the Mr Cooper who was driving the defendant’s vehicle at the time of the collision. The Judge made reference to the plaintiff’s submission that an adverse inference should be drawn against the defendant by reason of the fact that the defendant’s driver was not called, but she said that she did not think there were any adverse inferences which remained to be drawn against the defendant. The Judge did not address the question of whether the evidence from the defendant’s solicitor was sufficient to justify a finding that there was a satisfactory explanation for the failure to call Mr Cooper (Spence v Demasi (1988) 48 SASR 536 per Cox J 547 - 549).
The Judge found that at a point about 320 metres south of the southern alignment of Rocky Castle Road, Mr Martin activated his right hand indicator. He slowed the truck down by the use of its gears. By the time he reached the corner, he was travelling at about 10 kilometres per hour. At about the same time he activated his right indicator, Mr Martin looked in his rear vision mirror. He did not see any other vehicle. He did not check his rear view mirror again before making his turn. Had he done so, and had he seen the defendant’s rig in a position to overtake him, he could have continued in a forward direction and thereby avoided the collision. That was the evidence of Mr Martin and that was the finding of the Judge. The truck was facing east, or nearly east, into Rocky Castle Road at the point of the collision.
Mr Cooper was travelling to the rear of the plaintiff’s truck and he attempted to overtake it. Prior to the collision he aborted the attempt to overtake the plaintiff’s truck. The front right hand corner of the defendant’s vehicle struck the rear left hand corner of the plaintiff’s truck.
The Judge made various findings about the point of impact and various markings on the roadway. It is sufficient to say that the Judge found that the point of impact was located on the eastern carriageway of the highway approximately in the middle of that carriageway and approximately equidistant between the northern and the southern alignments of Rocky Castle Road. The defendant’s rig braked some distance prior to the point of impact. There was a long tyre mark made by the defendant’s rig which commenced approximately 45 metres south of the point of impact. The indicator lights on the plaintiff’s truck were in good working order prior to the accident, but the rear lens cover was covered with a film of pale dust. This was dust from the limestone rubble which had been carted during that morning and the previous day. A photograph tendered in evidence (exhibit D6 number 4) clearly shows the dust on the rear right lens cover. The indicator was operating at the time of the collision, and the Judge found that the indicator had been activated approximately 320 metres south of the southern alignment of Rocky Castle Road.
The Judge found that the defendant’s rig, as it approached Rocky Castle Road and before the plaintiff’s truck came into view, was travelling at about 100 kilometres per hour.
The Judge found that the condition of the truck’s rear right lens cover, coupled with the bright sunny conditions, would have made it very difficult for Mr Cooper to observe the indicator light flashing at any distance. The Judge said that she was unable to find, on the evidence, that it would have been clearly visible at 60 metres. Section 74 of the Road Traffic Act provides as follows:
“74 (1) Subject to the regulations, the driver of the vehicle must not diverge to the right or left, turn the vehicle to the right or left, stop, apply the brake of the vehicle, suddenly decrease speed, or make a U-turn without giving a signal in accordance with the regulations.
(2) A signal will not be regarded as being in conformity with the requirements of sub section (1) unless it is given in such a manner and for such a time as is necessary to give reasonable warning to persons who may be affected by the manoeuvre.”
Regulation 5.12(2) at the relevant time provided that a signal of the intention to turn right must be:
“clearly visible under normal atmospheric conditions by day and night to drivers approaching the vehicle at all distances up to 60 metres.”
The Judge found that Mr Cooper had failed to exercise reasonable care. He had allowed the defendant’s rig to travel too close to the plaintiff’s truck without having determined what course it was going to take. He had left himself insufficient time to avoid a collision.
The defendant’s negligence is not in issue on this appeal.
The Judge found that the plaintiff was also negligent. The Judge said:
“However, the plaintiff must also bear some responsibility for the collision. Not only was the indicator light masked by dust, but in slowing from 80 kilometres per hour (a speed already significantly below the limit in that area) and by using his gears but not braking to effect that slowing, the plaintiff’s truck created a hazard on the roadway over a distance of about 300 metres. In those circumstances it was important that Mr Martin keep under observation the state of traffic approaching from his rear and only make his turn if it was safe to do so. Had Mr Martin checked his rear view mirrors within say the last 100 metres prior to Rocky Castle Road, he would have seen the prime mover bearing down on his truck in a
position to overtake and he would have been able to attempt to avoid a collision.”
In the result, the Judge apportioned liability 70 per cent to the defendant and 30 per cent to the plaintiff.
The Arguments on Appeal
The plaintiff challenges the Judge’s conclusion that Mr Martin was guilty of contributory negligence. Alternatively, he argues that a finding of 30 per cent against the plaintiff was erroneous.
As to the first matter relied on by the Judge, the plaintiff does not challenge the finding that there was dust covering the rear right lens cover. That is clearly shown on the photographs tendered at trial (exhibit D6 number 4). The plaintiff submitted that there was no evidence the light would have been more visible if the lens cover had been cleaned by the plaintiff’s driver. I reject that submission. It can clearly be inferred that the light would have been more visible had the lens cover been cleaned. The plaintiff submitted that there was no evidence that the condition of the right rear indicator light and the bright sunny conditions would have made it more difficult to see. The plaintiff submitted that the evidence was that the light was readily visible. He referred to the evidence of two witnesses, Mr Messenger and Mr Starks.

The Judge found that the condition of the rear right lens cover was a departure by the plaintiff from a reasonable standard of care and that it was causative of the collision in the relevant sense. In my opinion, she was right to do so. There can be no doubt that driving on the road with indicators or brake lights which are not clearly visible is a departure from a reasonable standard of care. Reference need only be made to the various provisions of the Road Traffic Act referred to by the Judge (s 74; Regulation 5.12(2)). It was open to the Judge to infer that the condition of the rear right lens cover was causative of the collision in view of the following matters:
1The weather conditions on the day and the covering of dust on the lens cover as shown in the photographs.
2The fact that it may be inferred that the driver of the defendant’s vehicle did not appreciate that the plaintiff’s vehicle was turning right into Rocky Castle Road until it was too late.
3The evidence from Mr Martin (the driver of the plaintiff’s vehicle) that he had not cleaned the lights on the day of the collision, and that even when the lights are clean it is not easy to see the lights on a sunny day.
In my opinion, this conclusion is not affected by the failure to call Mr Cooper. The fact that the difficulty in seeing the rear right indicator was causative of the collision was a strong inference on the evidence. Nor is the conclusion affected by the fact that Mr Messenger and Mr Starks said in evidence that they could see the indicator operating after the collision. Both men attended the scene immediately after the collision and both made their observations of the light operating from a short distance away.
The second matter relied on by the Judge and challenged by the plaintiff was the finding that, by using his gears but not braking to effect a reduction of speed, Mr Martin created a hazard on the roadway over a distance of 300 metres. The plaintiff submitted that reducing the speed of the truck over a distance of 300 metres was not a departure from a reasonable standard of care, and in any event, it could not be said to be causative of the collision. I reject the challenge to the Judge’s finding. In my opinion, a reasonably prudent driver in the circumstances facing the driver of the plaintiff’s vehicle would have used the simple expedient of activating his brake lights to alert drivers travelling behind him of his intention to slow down to a speed of about 10 kilometres and then to execute a right turn. I think it can be readily inferred that this failure was causative in the relevant sense.
The third matter relied on by the Judge and challenged by the plaintiff was the finding that had Mr Martin checked his rear view mirrors within approximately the last 100 metres prior to Rocky Castle Road, he would have seen the defendant’s rig bearing down on his truck in a position to overtake and he would have been able to attempt to avoid a collision. The plaintiff accepted that the failure to check the rear view mirrors was negligent, but submitted that such failure was not causative of the collision. The plaintiff sought to argue by reference to a calculation of distances, times and speeds that at the point where the plaintiff’s driver should have looked in the rear vision mirrors, the defendant’s rig would have been at such a distance from the plaintiff’s vehicle that it would not have been apparent to the driver of the plaintiff’s vehicle that the defendant’s rig was engaging in an overtaking manoeuvre.
I reject this submission. The submission proceeds on the basis that the evidence supports precise findings as to the movement of the vehicles leading up to the collision. The evidence does not support the precise findings that form the basis of the plaintiff’s analysis.
The circumstances called for the exercise of care by Mr Martin. His truck was slowing down. His rear right lens cover was covered with dust. In those circumstances, he should have checked his rear view mirrors and seen the defendant’s rig. He should have checked the position of the defendant’s rig on more than one occasion. Had he done so, and had he seen the defendant’s rig, he could have increased the speed of his turn to the right or moved his truck to the left of the roadway. I am far from persuaded that had Mr Martin looked in the rear vision mirrors at the appropriate times, he would not have seen the overtaking manoeuvre, but even if I am wrong about that, such a manoeuvre was clearly a distinct possibility and called for the exercise of care by Mr Martin. I am not persuaded that the trial Judge’s finding, that had Mr Martin looked in his rear view mirrors he might have avoided the collision, should be disturbed.
The Judge did not err in finding that the plaintiff was guilty of contributory negligence.
In the alternative, the plaintiff submitted that an apportionment of 30 per cent was erroneous. Had I been the trial Judge I would have fixed a figure less than 30 per cent. The departure from a reasonable standard of care by the defendant was considerably more serious than the departure from a reasonable standard of care by the plaintiff. However, an appeal court will not interfere simply because it does not agree with the precise percentage fixed by the trial Judge (Knowles v Dubla (1997) 25 MVR 134).
In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 the High Court said:
“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.”
My disagreement with the Judge amounts to no more than a different opinion by a different mind and, therefore, it is not a case in which I should interfere with the apportionment fixed by the trial Judge. In other words, I do not think that this is one of those cases where the apportionment made by the Judge was an apportionment not reasonably open to her on the evidence (Wardle v Fowler [2002] SASC 380).
Conclusion
I would dismiss the appeal.

[2002] SASC 376

17 December 2002