Mugford v Ames

MUGFORD v AMES
[2000] SASC 241

Full Court: Prior, Williams and Martin JJ

1................ PRIOR J........................... I agree with the reasons prepared by Martin J.

The appeal should be allowed and in lieu of paragraph 1 of the order made in the court below an order made that the plaintiff recover damages from the defendant to be assessed and reduced by 70 per cent.

3................ WILLIAMS J.... I agree.

4................ MARTIN J........ On 5 March 1994, the respondent sustained injuries in a road accident while riding his Harley Davidson motor cycle. As part of what is commonly known as a chain collision, the respondent’s motor cycle collided with a Mazda sedan driven by the appellant. After a trial concerned only with the issue of liability, a Judge of the District Court found that the appellant should bear 75 per cent of the responsibility for the collision and the respondent 25 per cent. The appellant appeals against that assessment. In essence the appellant contends that the learned trial judge erred in finding that the appellant was negligent to any degree because the respondent collided with the rear of the appellant’s vehicle.

The learned trial judge found that the respondent was an extremely experienced and competent motor cyclist who was very familiar with the type of motor cycle he was riding. He also found that the respondent was very familiar with the road and, in particular, the area where the collision occurred.
The respondent was riding north on Main North Road at Blair Athol in a line of vehicles. He was in the right lane of the north bound two-lane carriageway immediately behind the appellant’s vehicle. To his right was a raised median strip separating the north and south bound carriageways. Both the appellant and the respondent said the traffic was heavy and the line of vehicles in which they were placed had been travelling at about 50-60 k/ph since leaving a set of traffic lights a few kilometres to the south.
The line of vehicles approached the junction of Warwick Street and Main North Road. For vehicles wishing to turn right from Main North Road into Warwick Street, the median strip on Main North Road is narrowed in the usual way thus creating a slip or right-turn lane to assist traffic turning right. The respondent was aware that sometimes traffic waiting to turn right into Warwick Street was delayed causing a line of delayed vehicles to extend beyond the full length of the right-turn lane and into the right lane of the north bound carriageway of Main North Road. The respondent saw that traffic was gradually banking up and was decelerating. He decelerated with the line of traffic, but he thought that, as it usually did, the impediment would pass and the traffic having slowed would simply roll on and continue northwards. When the respondent saw traffic banking up and realised that the distance between his motor cycle and the vehicle immediately to the front was lessening, he moved the motor cycle to the left of the right-hand lane adjacent to but not over the white line dividing the right and left north bound lanes. The respondent said he then became aware of vehicles to his front slowing more than he expected. The learned trial Judge found that by this time the respondent was one to two car lengths from the rear of the appellant’s vehicle to his front and behind the left side of the appellant’s vehicle. The respondent then decided to pass the appellant’s vehicle on the left side rather than place himself at risk from the rear. The learned trial Judge found that the respondent made his move to the left lane and was passing the left rear corner of the appellant’s vehicle on a slight angle at the moment when the appellant’s Mazda collided with the rear of a vehicle in front of the appellant. His Honour found as follows:
“At the precise moment of vehicular impact the Mazda jumped back, as it were, and in so doing moved into the space through which the plaintiff [the appellant] was travelling thereby making contact with the motor cycle to its rear and thus flicking the plaintiff [the appellant] to his right and into the rear left quarter panel of the first defendant’s vehicle.”
The ultimate finding was expressed in the following terms:
“Clearly, the first named defendant was negligent vis-a-vis the vehicle to his front. In my opinion that negligence also exists in relation to the plaintiff to a lesser degree. The plaintiff has some responsibility for this impact because of his failure to fully appreciate the situation and to undertake his manoeuvre in complete safety. However, in my view, his responsibility is significantly less than that of the first named defendant who has allowed his vehicle to be placed in a situation where impact to his front occurred and then, in an uncontrolled move, bounced so as to impede the path of the plaintiff’s motor cycle which was, at that moment, passing close to the left hand rear of his vehicle and at a relatively slight angle to the direction of travel.”
The evidence established that an older model Holden motor vehicle braked heavily to a stop. A Honda sedan then collided with the rear of the Holden. The Mazda sedan driven by the appellant then collided with the rear of the Honda following which the final impact occurred between the respondent’s motor cycle and the Mazda. The impacts all occurred very quickly.
The appellant gave evidence that he decelerated as the general flow of traffic began to slow down. He was not aware of the presence of the motor cycle behind him. Prior to the emergency braking procedure, he did not see any illumination of the brake lights of the Honda in front of him. At the moment the brake lights of the Honda became illuminated, the back end of the Honda lifted up and smoke came from the tyres. The appellant said he was one to two car lengths behind the rear of the Honda, but he was unable to estimate his speed except that it would have been less than 50-55 k/ph because the line of traffic had earlier decelerated from that speed. He reacted to the emergency braking of the Honda by applying his brakes very hard, following which his vehicle skidded straight into the back of the Honda. He said the impact was square on with the full rear of the Honda. A moment after the impact with the rear of the Honda, and while his vehicle was stationary, he heard a thump which turned out to be the impact between the motor cycle and the appellant’s Mazda.
The appellant argued that the learned trial Judge erred with respect to a number of factual matters. The principles governing the approach of appellate courts in reviewing findings made by a trial judge are well established. They were the subject of consideration by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 and in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq.) (1999) 73 ALJR 306.
First it was said that the learned trial Judge erred in accepting the critical features of the respondent’s evidence, given the respondent’s evidence as to his memory problems after the accident and a clear error in the respondent’s recollection. The respondent maintained that the appellant’s motor vehicle collided with the rear of a trailer, but the evidence established that the Honda vehicle in front of the appellant was not towing a trailer. These matters were undoubtedly of significance in the assessment of the reliability of the evidence given by the respondent, but the learned trial Judge was fully alert to the significance of the respondent’s memory difficulties and of the error with respect to the trailer. His Honour had the obvious and considerable advantage of seeing and hearing the respondent and other witnesses. If these complaints stood alone, I would not have interfered with his Honour’s findings.
Secondly, the appellant complained that his Honour erred in accepting the evidence of the respondent in preference to evidence given by an independent eye witness, Mr Caston, who said that the respondent was travelling at approximately 50-60 k/ph at a distance of 10 to 15 metres behind the appellant’s vehicle immediately prior to the collision. Mr Caston was a pedestrian. His attention was first drawn to the roadway when he heard the screeching of brakes. In evidence given in February 2000, when asked to describe what he saw that amounted to a “chain collision”, Mr Caston said he “heard the screeching of some wheels and then the bang of cars hitting each other”. He could hear the motor cycle and when he looked up the motor cycle was sliding towards him. In answer to a specific question as to whether he saw the motor cycle in the vicinity of the last motor vehicle in the chain of collisions, namely, the appellant’s Mazda, Mr Caston responded in the negative. As the bike was sliding towards him he had to jump into the bushes because he thought the bike was going to hit him. He said “You can’t forget a motor cycle sliding at you”.
During cross-examination, Mr Caston was asked about a statement he gave to an investigator on 9 November, 1994. He said he had a vague recollection of that occasion and agreed that his memory would have been a lot sharper and clearer than at the time of giving evidence. He had not seen a transcript of his conversation with the investigator. After reading a copy of the transcript, Mr Caston agreed that it contained an accurate record of what he saw on the day of the accident. He agreed that if there were discrepancies between his evidence and the statement, the latter would be more reliable and more accurate than his recall in the witness box. In the statement Mr Caston said that upon hearing the screeching of brakes he looked up and saw the old Holden motor vehicle braking heavily and coming to a stop, following which he saw the Honda sedan collide with the rear of the Holden. He then observed both the appellant’s Mazda collide with the rear of the Honda and the final impact between the respondent’s motor cycle and the Mazda. Mr Caston confirmed in evidence the accuracy of his statement in which he described in detail the positioning of all vehicles on the roadway prior to the impacts, their braking processes, the distance between the vehicles and their speeds. In particular he said that when he first saw the Harley Davidson motor cycle it would have been about 10 metres behind the appellant’s Mazda travelling at 50 to 60 k/ph. He described a late manoeuvre to the left by the motor cycle in an unsuccessful attempt to miss the rear of the Mazda.
The impacts all occurred very quickly after Mr Caston’s attention was excited by the noise of braking. At trial Mr Caston did not recall observing any impact. He recalled only the vivid image of the motor cycle sliding towards him. However, as the learned trial Judge observed, in his statement Mr Caston purported to give a quite detailed description of the speed and positioning of the respondent prior to impact. In these circumstances, and in the absence of other incontrovertible evidence or evidence accepted by the learned trial judge that strongly supported the evidence of Mr Caston as found in his statement, it was open to his Honour to prefer the evidence of the respondent.
The third head of complaint concerned a finding by the learned trial Judge expressed in the following terms:
“I find that as the emergency developed the plaintiff was travelling at a speed of about 20 kph between one and two car lengths to the rear of the Mazda vehicle immediately to the right of the lane dividing line and about in line with the rear left-hand side of the Mazda vehicle.”
Counsel first suggested that his Honour was placing the respondent’s motor cycle immediately adjacent to the rear of the appellant’s Mazda. However, on reflection, counsel accepted that his Honour was referring to the extension to the rear of the line along the left-hand side of the Mazda. Understood in that way, the position accorded with the evidence of the respondent that he had moved to the left portion of the right lane.
The appellant’s criticism was centred upon the finding that, as the emergency developed, the respondent was travelling at about 20 k/ph and at a distance of one to two car lengths from the rear of the Mazda. Counsel argued there was no evidence to support such a finding.
The respondent said that when he saw traffic building up, he “cautiously” slowed down from the initial speed of about 50 k/ph. In evidence, he was unable to give an estimate of his reduced speed. The respondent was cross-examined about a statement that he made to an investigator on 14 November 1994. He could not remember the occasion of speaking with the investigator, but agreed that the content of a number of answers in the statement were accurate descriptions of the events. As to the extent to which he slowed down, the respondent accepted that two answers he gave were accurate. He said in the statement that he initially slowed to a speed of “40 I suppose, 40, 30 something like that” and that he would have braked to about 20 kilometres per hour immediately before turning to move into the left lane.
The learned trial Judge found that there was very little difference between the respondent’s statement and his evidence, but to the extent that there was a conflict he accepted and preferred what was said in the statement to the evidence given in court. In these circumstances, the respondent having said in evidence that he accepted the accuracy of the statement concerning the speed of 20 kilometres per hour, his Honour was entitled to use that statement as evidence to that effect. It was open to his Honour to find, therefore, that the respondent was travelling at a speed of “about 20 kilometres per hour” as the emergency developed.
As to the finding that the respondent’s motor cycle was between one and two car lengths to the rear of the Mazda as the emergency developed, the respondent gave evidence that he was “the length of a car, or maybe two cars” from the rear of the Mazda when the Mazda’s brake lights came on as the appellant braked heavily. At this time he was aware of cars colliding with each other. It was at that moment that he turned to the left intending to pass by the left-hand side of the appellant’s Mazda. In those circumstances, the learned trial Judge was entitled to reach the conclusion that as the emergency developed a distance of one to two car lengths separated the motor cycle from the rear of the Mazda.
The final area of attack upon the findings of the learned trial Judge concerned the manner in which the impact occurred between the motor cycle and the Mazda. The respondent’s version was that he had successfully moved the motor cycle left into the left lane and was adjacent to the rear left side of the Mazda when the Mazda collided with the Honda vehicle. He said the rear left of the Mazda flicked or moved left and came into contact with the motor cycle. However, his Honour rejected that version. He found it was unlikely that such a movement to the rear left occurred following the impact between the Mazda and the Honda. His Honour said:
“However, it is plain from the evidence of the [appellant] that as a consequence of the impact between his vehicle and the Honda vehicle that his vehicle jumped back a short distance.”
Earlier in his reasons, after referring to the evidence of the appellant that he braked severely, skidded and squarely hit the rear of the Honda motor vehicle, his Honour said:
“He [the appellant] said that as a consequence of the impact his vehicle jumped back to the extent that, after he removed himself from his vehicle, he was able to walk between the two stationary vehicles.”
As previously mentioned, the learned trial Judge found that in jumping back the Mazda “moved into the space” through which the respondent was travelling thus making contact with the motor cycle. His Honour expressed the view that if the impact had occurred a moment later or if the Mazda had not jumped back upon impact, it was more probable than not that the manoeuvre undertaken by the respondent to avoid the situation of emergency would have been successful.
The appellant submitted that the learned trial Judge was in error as to the evidence of the appellant concerning this topic. Counsel argued that there was no evidentiary basis upon which his Honour could properly base an inference that the Mazda jumped back following impact.
It is not correct to say that the appellant gave evidence that his vehicle jumped back after impact with the rear of the Honda. The tenor of his evidence was to the contrary. As mentioned, the appellant said he skidded into the rear of the Honda and square on with the full rear of the Honda. He said that his car was stationary at the time of the second impact which occurred a moment later. When asked whether his vehicle bounced back after the impact with the Honda, the appellant said “I don’t recall”. However, it is clear that the appellant had his foot very firmly on the brake throughout as his vehicle stalled.
The damage to the rear left corner of the Mazda sedan was not of any assistance on this particular issue, but the view that the appellant’s vehicle did not jump back after impact finds support in the evidence of Mr Cornish who was a passenger in the rear of the Mazda driven by the appellant. He gave the following evidence (p 204):
“Q.... The vehicle you were in collided into the rear of the Honda in front. What happened to the vehicle you were in after that collision.
A.It came to a direct stop.
Q...... The car came to a direct stop. Did anything else happen after the car came to a stop.
A.Yes.
Q...... Could you tell his Honour what happened in terms of what you saw or felt, or heard, after your car came to a stop.
A.There was a very, a small type lapse, and to my left and a little bit behind me I heard and felt a solid impact.”
Later in his evidence Mr Cornish said that after the Mazda came to a halt, it did not sway in any direction. He was quite positive that it did not sway in any direction. When the issue was raised with him again in a slightly different form, he was positive that the rear of the vehicle had not swerved out to the left a little.
The learned trial Judge rejected the respondent’s version that the rear of the Mazda moved to its left after it impacted with the Honda. To that extent, therefore, his Honour accepted the evidence of the appellant and Mr Cornish. The plaintiff’s case being that the rear of the Mazda moved to the left, it was never specifically put to the appellant or Mr Cornish that the Mazda jumped back into the path of the motor cycle.
It appears that his Honour’s finding that the Mazda jumped back is based upon the existence of a space between the front of the Mazda and the rear of the Honda after the impacts had occurred. The appellant said that when he got out of his vehicle, there was a space between the front of his vehicle and the rear of the Honda which was wide enough to walk through. He was asked whether the impact of his vehicle upon the Honda pushed the Honda forward, and he responded “I guess with inertia or something, the momentum would have done something.” The appellant was unable to say whether, after the impacts, the front of the Honda was in contact with the rear of the vehicle in front of the Honda. Neither party led expert evidence that such a jumping back is a likely reaction to the impact between the Mazda and the Honda.
Having rejected the respondent’s evidence that the rear of the Mazda moved to its left after impact with the Honda, one obvious conclusion from the evidence in its entirety was that the respondent was late in executing his manoeuvre into the left lane. If the Mazda had not come to a sudden halt on impact with the Honda or if the respondent had executed the manoeuvre a little earlier, the respondent may well have successfully passed by the rear left of the Mazda. However, when the Mazda came to a sudden halt on impact, some part of the motor cycle caught the left rear corner of the Mazda.

Against the entire tenor of the evidence of the appellant and Mr Cornish, and in view of the rejection of the appellant’s evidence concerning the movement of the Mazda, in my opinion the existence of the gap between the front of the appellant’s Mazda and the rear of the Honda after impact was not a sufficient basis upon which to draw a conclusion that the Mazda jumped back. If that finding is rejected, it follows that the learned trial Judge also erred in finding that the attempted manoeuvre by the respondent was unsuccessful primarily because the Mazda jumped back. I am driven to the conclusion that it is more likely that the respondent left insufficient room between his motor cycle and the rear of the Mazda and that he did not respond to the emerging danger early enough to manoeuvre safely to the left. The respondent expected the traffic to slow and then continue without stopping. It was not until the chain of impacts began to occur that the respondent sought to manoeuvre the motor cycle into the left lane. His attempt was too late.
In my opinion, the error by the learned trial Judge was a significant aspect of his reasoning concerning the immediate circumstances of the impact. However, I would not interfere with his Honour’s findings as to the speed and general positioning of the vehicles to which I have earlier referred. Similarly, I would not interfere with his finding that it was the respondent, more so than the appellant, who first appreciated the developing situation of danger.
Against the background of those findings and the evidence concerning the driving of the appellant, this Court must consider whether the evidence establishes any liability on the part of the appellant for the damages sustained by the respondent as a consequence of the collision. The first question to be determined is whether the appellant owed a duty of care to the respondent. If such a duty is established, the court must then consider the scope of the duty and whether the evidence establishes that the appellant was in breach of that duty. If those questions are answered in favour of the respondent, causation having been established, consideration must be given to the issue of contributory negligence pursuant to s 27A(3) of the Wrongs Act 1936.
As to the existence of a duty of care, it is appropriate to mention first the approach of the learned trial Judge to this question. In the passage earlier quoted, the learned trial Judge said:
“Clearly, the first named defendant was negligent vis-a-vis the vehicle to his front. In my opinion that negligence also exists in relation to the plaintiff to a lesser degree.”
The manner in which the learned trial Judge expressed those findings has the potential to give rise to some confusion. Read literally, when his Honour spoke of “that negligence”, it could appear that his Honour was not addressing the critical questions as to whether the appellant owed a duty of care to the respondent and, if so, whether he was in breach of that duty. However, when his Honour’s remarks are considered in their entirety, I am satisfied that his Honour addressed the correct questions and found that the appellant was in breach of a duty of care owed to the respondent. I mention this aspect of his Honour’s reasons because of the importance of approaching the critical questions in the correct order. The duty of a following driver is well established and there is an understandable tendency on the part of counsel in chain collision type circumstances to concentrate upon the failures of the following driver. However, when it is the following driver who takes action seeking damages, while the issue of the following driver’s failures will be relevant if the question of contributory negligence requires determination, at the outset the primary questions to be answered concern the duty of the driver in front to the following driver and whether the evidence establishes a breach of that duty.
There is no doubt that, as the driver of a motor vehicle on a public road, the appellant owed a duty of care to other road users, including the respondent. While the High Court in Perre v Apand Pty Ltd (1999) 73 ALJR 1190 has abandoned proximity as the critical factor determinative of the existence of a duty of care, and a single approach to this has not been identified, whatever test is adopted the existence of the duty of care is not in doubt. The remarks of Deane J in March v Stramare Pty Ltd (1991) 171 CLR 506 at 520 are applicable:
“It is clear that the second respondent was in a relationship of proximity with other users of the road on which he left the truck. That relationship gave rise to a duty to take reasonable care to avoid foreseeable injury to other road users. That relationship and that duty of care were not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were impaired either naturally or by reason of the effect of alcohol.”
The duty of a driver in the position of the appellant in a line of traffic requires the driver to drive in such a manner that, if the circumstances of the flow of traffic so require, the vehicle can be brought to a stop without danger to other vehicles. It is foreseeable that if braking is left to the last moment such that emergency braking must be undertaken, with or without impact with the vehicle in front, following drivers will be put at risk of injury through collision with the rear of the stopping vehicle. It is not uncommon for following drivers to be less than properly attentive and to drive in such a manner that they are unable to avoid impact with the vehicle in front if emergency braking occurs.
In my opinion, whether the circumstances were as found by the learned trial Judge or as I have found earlier in these reasons, the appellant was in breach of the duty of care that he owed to the respondent. He failed to leave sufficient room between his vehicle and the Honda to his front. He failed to pay proper attention to the emerging circumstances and to apply his brakes in sufficient time to both provide reasonable warning that he was stopping and to avoid the impact with the Honda. As a consequence he applied emergency braking and caused a sudden stop of his vehicle by colliding with the vehicle in front. In doing so, he created a dangerous situation for the respondent in breach of his duty of care to the respondent. To apply the words of Mason CJ in March v Stramare (p 519), the late and sudden braking by the appellant coupled with the impact with the Honda vehicle created a situation of danger carrying with it the risk that a careless driver would act in the way that the appellant acted.
The appellant’s breach of his duty of care to the respondent was a cause of the accident and of the damage sustained by the respondent. As Deane J pointed out in March v Stramare (p 521), the case is one in which there was fault on both sides and in which, in the context of apportionment legislation, the accident must be seen as the result of not only the negligence of the respondent in his driving of the motor cycle, but also of the negligence of the appellant in driving in breach of duty of the care which he owed to a class of persons of which the respondent was a member.
In those circumstances, s 27A of the Wrongs Act requires a consideration of the extent to which the respondent’s damages should be reduced. The Court is required to reduce the damages payable to the respondent to such extent as the Court thinks just and equitable having regard to the respondent’s share in the responsibility for the damage. The task of the Court was explained by the Full Court in Hooker v Grinham (unreported Judgment No. S6424 delivered 5 November 1997). Doyle CJ, with whom Lander and Bleby JJ agreed said:
“Apportioning liability involves a comparison of two things in particular. First, culpability, which is the degree of departure from the standard of care of the reasonable driver. Secondly, the relative importance of the acts of the parties in causing the damage but it is “... the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination”, see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311.”
It is in the context of apportionment that it is appropriate to have regard to the duty of drivers of following vehicles to drive with such care as to enable them to avoid colliding with vehicles in front when such vehicles are required to stop. The Saskatchewan Court of Appeal in Kosinski v Snaith (1983) 1 DLR (4th) 170 correctly characterised the onus on the following driver as “heavy”. The Court provided a helpful and accurate summary of the content of the duty in the following passage (p 174):
“There is a clear and well-defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper look-out; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that, for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.”
There are sound reasons for imposing such a duty of care upon following drivers. It is not uncommon for emergency situations to require a driver to stop suddenly and, importantly, modern traffic controls and conditions frequently require vehicles in a line of traffic to stop. Compliance with the duty of care by the following driver is critical to an orderly and safe flow of traffic.
The circumstances giving rise to the sudden cessation of forward movement by the appellant’s Mazda were not unusual or unexpected (cf Broadhead v Maybury (1988) 7 MVR 555 and Dodig v Sanders (1989) 10 MVR 29). The respondent appreciated that a situation of danger was developing and had ample opportunity to avoid the impact. In view of the high standard of care properly imposed upon following drivers, in my opinion a comparison of culpability and the relative importance of the acts of the parties demonstrates that the respondent bears a greater responsibility for the collision and his damage than the appellant. In the circumstances that I have found existed, in my opinion it is just and equitable to reduce damages payable to the respondent by 70 per cent.
I would allow the appeal and set aside the first order of the learned trial Judge concerning damages. In substitution for that order, I would order that the respondent recover damages to be assessed, but reduced by 70 per cent. The order as to costs of the action should stand.

[2000] SASC 241

4 August 2000