Musial, H.M. v O'Grady, B.F

’..

C A T C H W O R D S

1 I

3L , .

Motor vehicle accident

- Action for damages for negligence

Whether appellant established contributory negligence

part, of respondent - No new question

of principle involved.

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

HENRY MARIAN MUSIAL

V. BRIAN FRANCIS O’GRADY

NO. A.C.T.

G51 Of 1984

Coram:

Fisher, Kelly and Neaves JJ.

13 February 1985.

Canberra, A.C.T.’

, l

i .

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

1	NO. ACT G91 Of 1982

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: HENRY MARIAN MUSIAL

Appellant

AND :

BRIAN FRANCIS O'GRADY

Respondent

O R D E R

CORAM:	Fisher, Kelly and Neaves	JJ.
DATE OF ORDER:	13 February 1985
WHERE MADE:	Canberra A.C.T.
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant

pay

the

respondent's

costs

of and

incidental to the appeal.

: .

IN THE FEDERAL COURT OF AUSTRALIA	)
1

AUSTRALIAN

CAPITAL

TERRITORY

)

NO. ACT G51 Of 1984

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM TEE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: HENRY MARIAN MUSIAL

Appellant

AND :

BRIAN FRANCIS O'GRADY

Respondent

CORAM:	Fisher, Kelly and Neaves	JJ
-	DATE:	13 February 1985

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from

a judgment of the Supreme

Court of the Australian Capital Territory. It arises out of a collision which took .place on 5 February 1981 between a

motor car driven by the respondent and

a bus driven by the

appellant.

The collision took place in the Canberra suburb

of	Belconnen at the intersection of Nettlefold Street and

the northbound carriageway

of Coulter Drive.

The learned

trial

Judge

found

that

the

collision

was

due

the

-2-

negligence of the appellant and that the respondent was not

guilty

contributory

negligence.

awarded

the

respondent $72,000 damages. The

appellant

does

not

challenge the finding that he was negligent nor does he

claim that the amount

of damages awarded was excessive. His

sole complaint is against the finding that the respondent

was not guilty of contributory negligence.

Coulter Drive runs generally north-south. It has

two. carriageways separated by a median strip.

The learned

trial Judge described the general scene in the following

terms:-

" [There

are]

marked

lanes

ach

carriageway.

Travelling

a northerly

direction and back from the intersection with

Nettlefold Street there are two laneways and

just prior to the intersection there is

additional

laneway

towards

the

c ntre

plantation for traffic turning right into

Nettlefold Street. That laneway is extended

on the other side of the intersection

for

traffic

doing a righthand

turn

out

Nettlefold

Street

into

northbound

carriageway of Coulter Drive. Similarly for traffic travelling in a southbound direction

in Coulter Drive, there

third lane

nearest to the centre plantation for traffic

doing a righthand turn from Coulter Drive

into Ogilby Crescent, as Nettlefold Street is

known the o stern side the of

intersection.

The northbound carriageway of Coulter Drive near the intersection is 12 metres wide and the centre laneway is slightly narrower than

the

lefthand

laneway

and

the

righthand

laneway

the

centre

plantation.

Nettlefold

Street

intersects

with

Coulter

Drive

from

the

east.

That

intersection

between Nettlefold Street and the southbound carriageway of Coulter Drive is regulated by a 'Stop' sign directing traffic travelling in

a westerly direction in Nettlefold Street.

-3-

Within the intersection and

between the two

carriageways of Coulter Drive

there are 'Give

Way'	signs directing traffic travelling west

and east before crossing the northbound and

southbound

carriageways of Coulter

Drive

respectively."

Interviewed by

a police officer on

8 February

1981 , the appellant admitted that he was the driver of the

bus when it was involved in the collision and stated that he

was travelling west in Nettlefold Street prior to the

collision at a speed which he estimated at approximately 4

kilometres per hour. Asked to tell what had happened, he

said:

"I came out of Nettlefold Street, stopped

the stop sign, crossed Coulter Drive, came

a Give Way sign, almost stopping at the Give

Way sign, looked to my left side for any

traffic coming

on my left, saw no vehicle and

proceeded on and the	only other thing	I
remember is the bang."

He then

said that he "almost stopped

at the 'Give Way' sign,

[knowing] how treacherous it is".

He described the street

lighting in the vicinity as sufficient and ascribed his

failure to see the respondent's motor car until after the

collision to the respondent's failure to have his headlights

on.

It was then'put

to him that scientific evidence showed

that the motor car

did- have its headlights

on before the

collision. He responded

"I didn't see the vehicle". Be

said that he could see more than

300

metres to the left

along Coulter Drive and that his view in that direction was

not obstructed in any way.

-4-

The learned trial Judge found:-

(a) that between 3.30

p.m. and

6 or 6.30 p.m.

on the

day of the accident the respondent drank three	or
four middies of beer;

(b) that he then drove some out-of-town visitors to

their motel and subsequently to

a social function

at the Canberra Workers' Club, arriving there at

about 7.30 p.m;

7.30 p.m. and

11.15 p.m.,

when he

left the club to drive home, he drank beer;

(d) that

travelled

his

normal,

the

most

convenient,

route,

agreed

10-12

kilometres,	to	the	point	where	the	accident
happened;

(e) that he was travelling in the righthand through

lane of the northbound carriageway of Coulter closer to the intersectLon with which he was very familiar;

(f) that he was fully aware of the "Stop" and "Give

way" signs referred to above;

(g)

that

his

approach

the

intersection

was travelling at about

60 kilometres per hour

when he saw the bus

on his right hand side

crossing the southbound carriageway of Coulter

Drive;

-5-

that, being aware that the bus was obliged to give

way to him and having noted that it was travelling

at a pace at which one might have expected it to

travel if it were going to give way at the "Give

Way" sign, he assessed himself to be in

no danger

from it and proceeded into the intersection;

that when the bus did not stop he applied his

brakes, swerved to the left, but failed

to avoid

the collision;

that the point of impact was slightly to the left

of the centre of the right hand through lane which

had become at that point the centre lane of the

northbound carriageway of Coulter Drive;

that analysis of

a sample of the respondent's

blood taken almost three hours after the accident

showed the presence of 134 milligrams of alcohol

per 100 millilitres of blood; and

that the respondent was to some extent affected by

intoxicating liquor at the time

of the accident.

All the findings

fact just referred to were

open on the evidence and none can be successfully attacked

!	in this Court.

His Honour was not, on those findings, prepared to

conclude that the respondent was not in proper control

his motor vehicle

or that his consumption of intoxicating

liquor had such an effect upon

his driving as to have

reduced his capacity to observe the appellant's bus, keep it

under observation and take appropriate evasive action.'	He
considered the effective cause of the accident to be the

t	,
j

-6-

appellant's

failure

to see

the

respondent's

vehicle

approaching along the northbound carriageway

Coulter

Drive and to give way to that vehicle	as he was gequired to
do.

A sketch plan of the locality tendered in evidence

showed the northbound carriageway

of Coulter Drive to

be 12

metres wide. Senior counsel

for the appellant proceeded on

the assumption, from which we see

no reason to differ, that

the distance from the "Give Way" sign immediately to the

east of the northbound carriageway of Coulter Drive to the

point of impact was

6-7 metres.

The learned trial Judge made no specific finding

as to the speed at which the appellant was driving just

prior to the accident. The respondent estimated that speed

to be no more than 10 kilometres per hour. It could have

been, on the appellant's statement, 4 kilometres per hour.

However, because the appellant had stopped at the "Stop"

sign on the eastern side of the southbound carriageway of

Coulter Drive and then proceeded across that road towards

the "Give Way" sign just east

of its northbound carriageway

without any perception or apprehension that there was any

vehicle approaching from his left to which he should give

way, we think it probable that his speed

as he reached the

"Give Way" sign approached

or could have been

as much as 10

kilometres per hour. That figure was accepted by senior

counsel for the appellant as one of the bases upon which he

put

submissions

concerning

the

alleged

contributory

negligence of	the respondent and we are content to accept
it.

j .

-7-

Senior counsel for the appellant submitted that

while the appellant was travelling six metres (he based his

submission on that figure) from

a line adjacent to the "Give

Way" sign to the point of impact, the respondent, driving at

60 kilometres per hour, would have travelled 36 metres. At

a steady 60 kilometres per hour he would have covered that

distance, 118ft. in imperial measurement, in

2.17 seconds.

Counsel

then

went

on to

submit

hat

respondent's failure to realise that the bus had not stopped

the

"Give

Way"

sign

while

travelled

metres

demonstrated either a failure to observe that the bus had passed the "Give Way" sign or a failure to appreciate the

significance of the movements

of the

bus., He submitted that

the most likely explanation

of whichever failure operated

was that the respondent

was affected by liquor

to the extent

that his capacity to observe and appreciate and, possibly,

his capacity to react, were reduced. For the respondent to

drive in such

a state was a failure on his part to take

reasonable care for his own safety constituting contributory

negligence. He made much

of the respondent's evidence to

the effect that he did not realise the bus

was not going to

give way until he was almost at the point

of impact and that

he had braked only

a fraction of a second before impact, as

soon as he

realised that the bus was

not going to stop. He

quoted the

well-known passage from Sibley

v. Kais (1967) 118

C.L.R. 424

at p.427 where it was said:-

-8-

"The failure to take reasonable care in given

circumstances is not necessarily answered by

reliance upon the expected performance by the

driver

the

give

way

vehicle

his

obligations under the regulations;"

The passage goes on

"for there is no general rule that in all

circumstances a driver can rely upon the

performance

others

of their

duties,

whether derived from statutory sources

from the common law.

Whether or not in

particular circumstances it is reasonable to

act upon the assumption that another will act

in some particular way, as for example by

performing his duty under a regulation, must

remain a question of fact to be judged in all

the particular circumstances

of the case.

Therefore, it is, in our opinion, rightly

said that the '"right hand rule" is not the

be all and end all in relation to questions

of civil responsibility'. The obligation of

each driver

two vehicles approaching an

intersection

take

reasonable

care.

What

amounts

'reasonable

care'

is,

generally speaking, reasonable care requires

course, a question of fact but to our mind ,

each driver as he approaches the intersection

to have his vehicle

far in hand that he

can bring his vehicle

to a halt or otherwise

avoid an impact,

should

find

another

vehicle approaching from his right

or from

his left in such a fashion that, if both

vehicles continue, a collision may reasonably

be expected."

In its judgment in Government Insurance Office

New South Wales v. Sideris, delivered 3 April 1984 but as

yet unreported, the Court

of Appeal in New South Wales held

negligent a driver who, although "miraculously [seeming] to be driving correctly, was very drunk, having got into a

state where he had deprived himself

of the capacity to react

to the danger which was created". Giving the judgment

the majority, Priestley

JA said of the offending driver:-

-9-

"He had, by his actions before the accident,

got himself into a state where,

as the expert

evidence showed

, and the event sadly showed,

he was unable to drive with proper skill and

attention

and was incapable of making

reasonable response to the type

of emergency

on	the road with which he found himself

confronted .

A submission such as that made by senior counsel

for the appellant is, in

our opinion, entitled to succeed

only when it can be shown that there

some causal

connection between the condition

of a driver affected by

alcohol

and

the

appening

the

accident

under

investigation. Counsel appeared to recognize this, at least

implicitly, when he sought to ascribe what he described	as
the respondent's failure to appreciate the significance	of

the movements of the bus to his being 'affected by liquor to

the extent that his capacity to observe, appreciate and,

perhaps, to react was reduced. If the circumstances of the

accident had been such as to demonstrate according to the

common

sense

the

thing

that

on the

balance of

probabilities

the

respondent's

so-called

"failure

appreciate" was due to his being affected by liquor, we

would readily accept the submission but having regard

to the

findings made by the learned trial Judge we

do not think

that this has been demonstrated. In saying this we have

regard not only to Dr Slater's evidence but also

to the

trial Judge's assessment

of it.

As	we have indicated, senior counsel for the

appellant made much of

the fact that the respondent, when

-1 0-

asked how far away from the bus he was when he realised that

it was not going to give way, replied, "almost at the point

of impact". The next question established that by that he meant at a distance from the bys of only a few feet. However, in the light of the learned trial Judge's finding that the respondent had braked and swerved to the left

immediately

before

the

collision,

think

that

respondent, in giving that answer, must have been mistaken.

That

finding

necessarily

implies

that

respondent

observed that the bus

was not going to stop, reacted to that

observation,

and

then

applied

his

brakes.

It is not

possible to calculate exactly how long the process

observation, reaction and braking would have taken but,

plainly, it would have taken at least

a reasonable fraction

of a second, certainly as much as would have resulted in the

respondent's travelling more than

a few feet in the time.

It is possible that the respondent's reactions

were so slowed by his consumption

of alcohol as to have

caused him to have contributed

o his own damage but, in our

opinion, the evidence does not show this. We see no reason

to differ from the findings of fact made

on the evidence by

the learned trial Judge

who had the benefit of hearing and

seeing the respondent give evidence.

We note that nothing

in his evidence gives any indication that he was lying nor

was it suggested that he was.

We note that the appellant

was not called to give evidence.

In the circumstances we

consider that the respondent was in no different situation

-1 1-

from any driver who approaches an intersection which another

driver, bound to give way to him, is also approaching

and

the other driver as indicating that he in fact proposes to

give way. He had observed the bus travelling at a speed

which seemed appropriate in the circumstances. The bus was

not required by the relevant section of the Motor Traffic

assesses, not incorrectly or unreasonably, the behaviour of point when giving way. Section 124 of the Ordinance requires only that the driver of a motor vehicle bound to give way shall either decrease the speed of his vehicle to such an extent, or stop for such time, as is necessary to avoid the possibility that his vehicle and another might

arrive at the same point simultaneously or that

a dangerous

situation might otherwise be created.

It has to be remembered that the respondent had

only a little over 2 seconds in which to observe that the bus was not going to obey the "Give Way" sign even though still travelling at a modest pace, to appreciate that his reasonable assessment that the bus represented no danger to

him had to be reversed, to react to that appreciation and to

apply

his

brakes

and

swerve

the

left.

In the

circumstances it can hardly be fairly said that he was

guilty of contributory negligence.

we have applied the rule in Warren

Coombes

(1979) 142 C.L.R.

531 to the facts found by the learned

',	trial Judge. We see no reason to differ from the.conclusion

. ,

-1 2-

which he reached. We accept that the appellant was required to prove only on the balance of probabilities that the respondent was guilty of contributory negligence but we are not persuaded that he discharged that onus.

The appeal should be dismissed.

c e r t i f y that t h i s and the

@.lever,

( $ 1 )

preceding pnEes a r e a true copy o f t h e

Reasons	f o r Judgment	h e r e i n o f -fheirHonourgI
.Associate

Dated:

F e b - w ~

ISSS

,	!
I

[1985] FCA 36

13 Feb 1985