Mooney v Kinghorn and Hansford

[1996] QCA 384

IN THE COURT OF APPEAL	[1996] QCA 384
SUPREME COURT OF QUEENSLAND

Appeal No. 270 of 1995

Brisbane

[Mooney v. Kinghorn]

BETWEEN:

NORMAN HENRY MOONEY

(Plaintiff)

Appellant

AND:

SCOTT ROHAN KINGHORN

(First Defendant)

First Respondent

AND:

JOHN HANSFORD

(Second Defendant)

Second Respondent

Macrossan CJ
Pincus JA

Lee J

Judgment delivered 15/10/1996.

Separate concurring reasons for judgment of Macrossan CJ and Lee J, Pincus JA dissenting.

Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - Personal injury - contributory negligence - apportionment - motor vehicle accident - defendant driving at high speed - plaintiff entered intersection past give-way sign.
Counsel:	Mr J. Griffin QC for the appellant. Mr P. Ambrose for the respondents.
Solicitors:	Skuse & Co., by their town agents, Georgeson & Co., for the appellant.
Witheriff Nyst for the respondents.
Hearing Date:	26/09/1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 270 of 1995

Brisbane

Before Macrossan CJ

Pincus JA

Lee J

[Mooney v. Kinghorn & Anor]

BETWEEN:

NORMAN HENRY MOONEY
(Plaintiff)

Appellant

AND:

SCOTT ROHAN KINGHORN

(First Defendant)

First Respondent

AND:

JOHN HANSFORD

(Second Defendant)

Second Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 15/10/1996.

This is an appeal against an apportionment of negligence made by a District

Court judge in a personal injuries action resulting from a motor vehicle collision.
Quantum had been agreed.

The judge, in dealing with negligence and contributory negligence, apportioned seventy per cent against the plaintiff who is the appellant and thirty per cent against the defendant. The collision which is the subject of the action occurred at the intersection of the Gold Coast Highway at Markwell Avenue at about 1.00pm on a day that was fine and clear.

The appellant, as a result of the injuries received in the accident, has no recollection of events involved in it and immediately before it. Other evidence establishes that the appellant drove along Markwell Avenue in a westerly direction to the intersection of the highway and stopped there at a give-way sign before commencing to drive across towards the western continuation of Markwell Avenue on the other side of the highway. From the point where he stopped, or from a point which could easily be reached by moving a little further forward, should it be necessary, there was an extensive view available to the north up the highway. The appellant himself estimated the extent of this available view as about 240 metres. The Gold Coast Highway is one-way in that vicinity, taking only southbound traffic.

It consisted of three traffic lanes on the western side of a parking lane which was immediately in front of the appellant when he stopped before entering the intersection area.

When the appellant stopped at the intersection, the respondent was driving down the highway from the appellant's right. There was evidence accepted by the judge that the respondent was driving at an excessive speed. A number of witnesses testified to this fact to varying degrees but the judge with the advantage of seeing and hearing them accepted the evidence of two of those witnesses in preference to the others who indicated an even higher speed. Those other witnesses appear to have expressed themselves in more dramatic and perhaps more imprecise fashion, but the essential point is that the judge with the advantages of his position was well placed to form an assessment and nothing appears which would invalidate his conclusion. On the appeal there was no challenge made to this aspect. His conclusion, which we accordingly accept, was that the respondent was travelling down the highway towards the intersection in the middle lane of the three traffic lanes at a speed of about ninety kilometres per hour. This was an excessive speed in the circumstances particularly because the speed limit applicable to the highway traffic was sixty kilometres per hour.

The respondent said he saw the appellant's vehicle commence to move out from the side street onto the intersection area. The judge's findings indicate that the respondent conceded that he did not see the appellant's vehicle until he was about twenty five metres from it as it moved across the intersection area in front of him.

There may be some ambiguity in the way this is expressed but it is not clear that the judge was declining to find that the respondent saw the appellant's vehicle commence to move. In any event, the respondent then attempted to brake and swerve to the right but the front of the respondent's car collided with the right hand side of the appellant's vehicle in the most westerly of the three traffic lanes.

Another witness in the case, a Miss Cousins, had come to a halt in her vehicle just beside the appellant's stationary car at the intersection, that is on its left hand side. Miss Cousins intended to turn left and travel south along the highway. She said she looked to her right, that is to the north, before driving out and turning left. She saw the respondent's approaching vehicle and judged that it was safe for her to enter the intersection. Her first concern would have been to turn left into the traffic lane which was the most easterly of the three and it has already been mentioned that the respondent's vehicle was approaching in the middle traffic lane. If Miss Cousins had a view of the respondent from her stationary position, the appellant's view should have been just as good or even better. If there was any particular obstruction to vision close by, such as a parked vehicle or any other feature, the appellant should have moved carefully forward to clear his view before committing himself to cross the intersection.

Apart from his excessive speed, the respondent travelling south should have been able to rely on an ordinary expectation that traffic from minor side roads would not suddenly enter the intersection in his path, but would observe his right of way.

Considering the point in the intersection where the accident happened and the evidence of Miss Cousins as well as that of the respondent, it can be accepted that from the respondent's point of view, the entry of the appellant's vehicle would have been sudden and unexpected. There would have been nothing about a stationary vehicle on his left waiting beside a give-way sign to alert him to any particular danger.

The conclusion that the respondent was negligent because he was travelling at an excessive speed cannot be challenged but neither can the judge's conclusion that the appellant was guilty of what he called a "high degree" of negligence which contributed to the collision.

The appellant entered a busy major road against a give-way sign
immediately into the path of a fast approaching vehicle of which he had or would
have been able to have a clear view. From that point on the collision was inevitable.

The finding of a major proportion of negligence against the appellant cannot be disturbed. There is a reluctance in an appeal court to disturb apportionments found at trial and in the present case the apportionment was open to the trial judge.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 270 of 1995.

Brisbane

Before Macrossan C.J.

Pincus J.A.

Lee J.

[Mooney v. Kinghorn & Anor.]

BETWEEN:

NORMAN HENRY MOONEY

(Plaintiff) Appellant

AND:

SCOTT ROHAN KINGHORN

(First Defendant) First Respondent

AND:

JOHN HANSFORD

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 15/10/1996

I have read the reasons of the Chief Justice. His Honour’s explanation of the facts of the case makes it unnecessary for me to set them out.

The matter is very much one of impression; mine is that the basic cause of the collision was excessive speed on the part of the first respondent, Mr Kinghorn; his speed was such as to attract the attention of and, in varying degrees, generate anxiety in a number of observers, prior to the occurrence of the collision. One of these witnesses, Mr Leary, apparently considered reliable by the primary judge, was asked what attracted his notice to the first respondent’s car and said it was mainly the speed - "It was travelling so fast you couldn’t help but notice it". Another witness in a similar category was Mr Patterson, who was also alarmed by the vehicle’s speed. It is true that numerical estimates of vehicle speed made by observers are notoriously unreliable, but in the circumstances of this case the only rational conclusion was that the first respondent was travelling at a quite unusually high speed. The fundamental fault of the appellant, in my view, was his failure to notice the rapidity of the approach of the first respondent’s vehicle and this was due to his not having looked carefully enough to his right. On the other hand, it goes in the appellant’s favour that Ms Cousens’ vehicle, referred to in the Chief Justice’s reasons, entered the intersection at a point close to that from which the appellant entered it; Ms Cousens, it seems clear, did not appreciate that the first respondent was travelling very fast, for, had she done so, she would surely have waited for him to pass.

Perhaps the evidence of Ms Cousens merely illustrates the truth that it is not hard to fail to notice excessive speed on the part of a vehicle being driven towards one, rather than past one. It seems to me to have been reckless of the first respondent to drive at a high speed in a busy area. There is no reason to think that had the first respondent been travelling at a more normal speed the accident would have occurred.

I would have allowed the appeal and apportioned liability 60% in favour of the

appellant.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 270 of 1995
Brisbane
[Mooney v Kinghorn & Anor] BETWEEN:

NORMAN HENRY MOONEY

(Plaintiff) Appellant

AND:

SCOTT ROHAN KINGHORN

(First Defendant)

First Respondent

AND:

JOHN HANSFORD

(Second Defendant)

Second Respondent

Macrossan C.J.
Pincus J.A.

Lee J.

Judgment delivered 15/10/1996

Separate reasons for judgment of each member of the Court, Pincus J.A. dissenting.

APPEAL DISMISSED WITH COSTS

CATCHWORDS: CIVIL - APPORTIONMENT OF LIABILITY - Motor vehicle accident - Appellant pulled out onto busy highway - Respondent travelling at excessive speed - Trial judge apportioned liability as 70% fault of the appellant.

Counsel:	Mr J.A. Griffin Q.C. for the appellant Mr P. Ambrose for the respondent
Solicitors:	Skuse & Co for the appellant

Witheriff Nyst for the respondent

Hearing date:  26 September 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 270 of 1995
Brisbane
Before Macrossan C.J.

Pincus J.A.

Lee J.

[Mooney v Kinghorn & Anor]

BETWEEN:

NORMAN HENRY MOONEY

(Plaintiff) Appellant

AND:

SCOTT ROHAN KINGHORN

(First Defendant)

First Respondent

AND:

JOHN HANSFORD

(Second Defendant)

Second Respondent

REASONS FOR JUDGMENT - W.C. LEE J.

Delivered the 15th day of October, 1996

I have read the reasons of the Chief Justice and Pincus J.A. Essentially I agree with the Chief Justice's reasons and conclusions but wish to make some additional observations.

The sentencing judge accepted the evidence of the witnesses Mr Leary and Mr Patterson that the respondent was travelling at "close to 90kph and not much less at point of impact". This was clearly excessive in the circumstances. The other principal allegation of negligence against the respondent was that he failed to keep a proper look out. The only negligence found by the judge against the respondent was excessive speed. The allegation of failure to keep a proper look out has not been established for the various reasons stated by the Chief Justice. There is an additional factor which appears to point further to the fact that the appellant failed to keep a proper look out.

The respondent said that as he approached the intersection from about 30 to 40 metres, a red car on his right hand side (i.e. the westerly side) "pulled across in front of me and Mr Mooney" heading east across the highway. He watched the passage of the red car from west to east and when it was about in the third lane on the eastern side, that is the lane closest to the appellant, the appellant then pulled out causing the respondent to take evasive action. His evidence also indicates that the appellant, once he commenced to move from a stationary position, did not stop or slow down or take any avoiding action before the collision.

Whilst the judge made no finding with respect to the red car described by the respondent, the respondent was adamant both in examination-in-chief and in cross- examination of its existence and movement which, if correct, must have barely got across the highway before the appellant moved out. This is not inconsistent with the respondent's statement to the judge that he did not notice the presence of the appellant's vehicle until he was about 25 metres from it. It is well known that estimates of distances are notoriously inaccurate but the foregoing suggests that it was not unlikely that the appellant pulled out onto the highway at or about the time this red car passed close to him and may have either lulled him into a sense of security or restricted his look out in some way. It imposed a higher than usual duty on his part to ensure nothing was coming on his right.

In so far as the appellant relied upon the look out by Miss Cousens and her proceeding out onto the highway into the left lane when she did, the trial judge said that although she intended to turn right at the next intersection which was some 100 metres away, and to that end would have had to move from the left lane into which she entered, that is on the easterly side, over to the westerly lane, her immediate concern was to turn left into the near side lane. She said she saw the respondent's vehicle approaching in the most westerly lane in what she described as the far lane or the right hand lane (75). The judge found that it was travelling in "approximately" the centre lane, so her observation was either defective or such that, wherever it was travelling, she considered it safe to proceed onto the highway into the extreme left lane. Her move was understandable, as the trial judge found. It is difficult to see how her observations of movement that day provide any assistance to the appellant.

I agree with the Chief Justice that the judge's conclusion that the appellant was guilty of what he called a "high degree" of negligence, cannot be challenged, and particularly having regard to the reluctance of an appeal court to disturb apportionment found by a trial judge.

I agree that the appeal should be dismissed with costs.