Nelligan v Mickan & Mickan No. Scgrg-98-994 Judgment No. S6935

NELLIGAN v MICKAN & MICKAN
[1998] SASC 6935

Full Court: Millhouse, Olsson & Debelle JJ

MILLHOUSE J. In the mid-afternoon of 8 December 1993 a bush-fire started near the Gap Road, an unsealed road from Edilillie to Warrow on the southern Eyres Peninsula.
The plaintiff in the action, the respondents before us, ran a farm in the area. The male respondent was picked up by a neighbour and they set off to help fight the fire. The vehicle in which they went had a water tank on the back but the water ran out. At the junction of the Gap Road with a track leading into the Tapley Farm the respondent transferred to the back of another vehicle driven by Mr Brenton Paech. Mr Paech was going to fight the fire but he had no one with him to work his pump.
Mr Paech with the respondent on the back drove west along the Gap Road. The fire then was burning to their right, to the north, in stubble. They were approaching the turn-off on their left, to the south, into the Puckridge Farm. Mr Paech did not turn in but drove 10-15 metres further west and stopped his vehicle with the near side wheels off gravel surface but the off side wheels still on it. He stopped for this reason, as the learned District Court Judge put it:-
Mr Paech "... confirmed that there was a great deal of smoke. The fire must have moved at frightening speed, because they were only just ahead of it and when they got to the Puckridge driveway the fire had caught up with them. The driveway provided something of a fire break so that when Mr Paech passed the entrance to the driveway, there was not as much smoke. Mr Paech stopped his utility 10-15 metres past the driveway, on the left side of the Gap Road facing west."
The respondent stayed on the back of the vehicle although there would have been room for him in the cabin with Mr Paech and his young daughter: three seat belts were fitted.
The defendant in this action, the appellant before us, and his brother, Mr Grant Nelligan, had also seen the fire and went to help fight it.
The appellant, too, was driving a utility, with a water tank on the back. Grant Nelligan was in the back to work that pump.
They had seen Paech's vehicle leave the Tapley Farm junction and drive west in front of them. They assumed he was going to the Puckridge property to help protect the buildings. The buildings were some distance down the driveway to the south from the Gap Road. The appellant thought Paech would turn to his left into the Puckridge Farm for that purpose. At this time, "the fire was still about 100 yards out into the paddock.
This is how the learned Judge described the situation from the appellant's point of view:-
" Suddenly, the wind gusted from the north and, almost instantly, the fire reached the Gap Road and also moved west into an adjoining paddock containing dry barley stubble. As the defendant was driving west along Gap Road, the fire got into the scrub immediately north of Gap Road and into the branches of some fairly tall Eucalypts. The ferocity of the wind and the fire was such that the flames from the tops of the trees were extending over the utility. The defendant's brother moved to the left hand side of the utility as far as he could and yelled out to his brother to 'get the hell out of here', or words to that effect. There were flames and smoke and cinders everywhere and visibility was very poor - only about 5 or 6 metres."
The learned Judge found the appellant's speed at impact to be somewhere between 40-60 kilometres per hour. Unfortunately the appellant did not see Paech's vehicle on the side of the road and clipped its offside rear by about eight inches with the near side front of his vehicle. Paech's vehicle flipped over. Fortunately Paech and his daughter got out unhurt but the respondent still in the back and the appellant's brother each was thrown out on to the roadway. Both were injured but the respondent more seriously.
The issue before this Court, as before the learned trial judge, concerned only liability and not an assessment of damages.
A third vehicle, the Cummins EFS truck, was being driven west along the Gap Road, behind the other two. Mr Adrian Sheppherd was the driver: a full crew was on the back.
This is how His Honour summed up Mr Sheppherd's evidence:-
"He confirmed that the wind was blowing from the east but swinging around and gusting from north-east. He said that the smoke coming from their right hand side was so thick that they could not see in front of them and had to go very slowly - about 20-25 kph. He was keeping the fire truck to the left hand side of the road as far as possible with lights flashing. He was heading for the Puckridge farmhouse to protect it. He arrived at the scene of the accident a very short time after it occurred - the plaintiff was still lying on the road. He said that he saw the accident vehicles when he was 15-20 metres away and managed to pull up about 6-8 metres away from the first plaintiff. I think these measurements must be a little astray, as I find it difficult to accept that a large, heavy truck travelling at 20-25 kph on a dirt road could pull up in about 7-14 metres (20 kph is just over 5 metres per second). However, the important fact is that, whatever the distances were, he managed to pull up the fire truck without colliding with the first plaintiff or either of the other vehicles."
In considering fault His Honour remarked, "Balancing these various factors in the present case is an extremely difficult exercise." The ratio of his decision relating to the appellant's responsibility is:-
" It is perhaps understandable that the defendant had only one thought in his mind when the fire reached the road and the flames started blowing over the top of his truck - to get away from the fire and avoid serious harm to himself and his brother. However, in failing to take into account that Mr Paech's vehicle may have been in front of them in the smoke, either moving or stationary, and in failing to adjust his speed and look out accordingly, he must be regarded as being negligent. This may seem like a counsel of perfection in view of the very real danger posed by the fire, but I cannot ignore the difference between the driving of the defendant and the driving of Mr Sheppherd, and the different consequences that flowed from each. If the defendant had reduced his speed to 20-25 kph like Mr Sheppherd, and if he had been concentrating more on the road ahead than on the fire to his right, then he may well have become aware of the utility at an earlier time and been able to stop his truck before any collision occurred. Alternatively, given that the overlap between the two vehicles at the point of impact was, according to the defendant, only about 8 inches, he may well have been able to swerve around Mr Paech's utility."
His Honour then turned to consider whether the respondent was also negligent and found that he was, for not getting out of the back of the utility and into the cabin with Mr Paech and his daughter. He found the respondent 20 percent responsible for his own injuries.
Mr Stephen Walsh QC with Mr John Ward for the appellant argued that their client could not be blamed at all for what he did. The sudden change in the direction of the wind, meant that the appellant and certainly his brother were in a life threatening situation: they could have been "burnt to a crisp" (an expression Mr Walsh used several times). The appellant's brother was yelling, "Get to hell out of here", he could not be blamed for keeping on driving at the speed he did even with hardly any visibility ahead.
This argument appeals to me. Anyone who has ever been in a situation anything like this, fighting a bush-fire, knows how terrifying it is, not only terrifying but confused and confusing. The appellant believed his brother, if not himself as well, to be in mortal danger. He had to balance the urgency of their situation against the risk of driving almost blind west down the road. I do not blame him for driving on and at his speed.
In cross-examination the appellant admitted that he forgot about Paech's vehicle which he had seen driving in front of him. Mr Walsh tried to explain this away by saying that what the appellant really meant was that he did not think Paech was there. The appellant may have assumed that Paech had turned into the Puckridge driveway to prepare to defend the house but I do not accept Mr Walsh's explanation as he put it. I simply think that in his situation the appellant had to take the risk he did, to "get the hell out of" there.
The learned trial Judge reasoned that because Mr Sheppherd, coming some short way behind, was able to see the immediate aftermath of the accident and stop in time, then the appellant should have been able to, too.
The answer, I suggest, is in the argument Mr Walsh put to us. Conditions during a fire change from minute to minute, even from second to second. In my view the learned Judge was in error in assuming that conditions were as bad for Sheppherd as they had been for the appellant. Even though both the appellant and Sheppherd gave the same estimate of visibility, one to five or six metres, that allows a big variation. The fact is, too, that Sheppherd said he "saw the accident vehicles when he was 15-20 metres away" so his estimate of one to five to six metres must be inaccurate.
It is most unsafe to assume, as the learned Judge did, that conditions must have been the same for Sheppherd as they had been for the appellant: to reason that because Sheppherd was able to pull up in time, the appellant also should have been able to.
For those reasons, in my view, the appellant cannot be held responsible at all for the accident.
That really makes it unnecessary to consider the learned Judge's finding of 20 percent against the respondent. However perhaps I should say that, with respect, I disagree with him on that as well. The respondent was on the back of the utility to work the pump. This is a perfectly sufficient reason for him to be there and to remain there.
The learned Judge thought that the respondent should have been in the cabin. Mr Walsh argued that the respondent should have been off the back and standing by the side of the utility. Standing there the respondent would have been in pretty well as much danger from the fire and from the collision as where he was. I would not have accepted that argument, either.
As it is, any conclusion on the question of contributory negligence is irrelevant if the appellant were not negligent.
The learned Judge referred to several authorities in his Reasons. All were relevant and cogent. Likewise counsel cited several others. I have not mentioned any of them because, after all, the decision is entirely a question of fact, whether the appellant was justified, literally in the heat of the moment, to act as he did. No authority really can help on that.
I suggest that the appeal be allowed and that there be judgment in the action for the appellant.

OLSSON J. This is an appeal against a judgment for damages for negligence entered by a District Court Judge in favour of Peter Mickan, the first respondent. There is also a cross appeal by Peter Mickan in relation to a finding of contributory negligence made against him.
The claim by Peter Mickan stemmed from a rear end collision between two vehicles, which occurred on a country road known as “the Gap road” in the South Eyre Peninsula on 8 December 1993. It initially went to trial as to the issue of liability only.
Peter Mickan was a farmer who owned and worked a property located about 12-13 kms south of Cummins on Eyre Peninsula.
On the day in question he became aware of the outbreak of a grass fire to the north of the Gap road on Tapley Farm, not far from his property. He was picked up by a neighbour driving a vehicle equipped with a water tank and pump. They drove to the site of the fire, where they assisted others in endeavouring to contain it.
After a time the water in the tank was exhausted. Peter Mickan and his neighbour therefore drove away from the fire to refill the tank from a dam. On leaving the property and driving onto the Gap road they met the witness Paech, who was driving his utility with a full tank of water and a pump on the back. Paech had his young daughter with him, but had no one to operate the hoses. It was agreed that Peter Mickan would transfer to the back of the Paech vehicle to assist him to fight the fire, whilst the neighbour refilled the empty tank on the other vehicle. When the Paech tank became empty it was decided to drive along the Gap road from the Tapley farm to the Puckridge farm to the west, to refill it. This they proceeded to do.
The appellant and his brother had also become aware of the existence of the fire and were driving west along the Gap road in a red truck with a water tank on the back. They observed that the wind was blowing from the east and causing the fire to head towards the Puckridge farm. Before arriving at the gate into the Tapley farm, the appellant stopped the truck and his brother got on to the back of it to prepare the pump for operation.
When the appellant’s vehicle was about 50 metres from the gate, he saw the Paech utility drive out of the gate and turn west on to the Gap road. The fire was then about 100 yards out into the paddock.
The appellant assumed that Paech was intending to protect the house and former buildings on the Puckridge farm. He and his brother decided to follow the Paech vehicle and assist. Quite clearly, he was only a short distance behind that vehicle, both in terms of time and geography.
As the two vehicles proceeded west along the Gap road the wind gusted from the north. The fire burnt close to the road and also moved west into a paddock with dry barley stubble. The appellant observed the fire in scrub immediately north of Gap road and in the branches of some tall eucalypts. The strength of the wind caused flames from the top of the trees to extend over his vehicle. The appellant’s brother yelled out to him to “get the hell out of here”. There were flames, smoke and cinders everywhere. Visibility was down to about 5 to 6 metres.
Further to the west the fire was also catching up with the Paech vehicle. Peter Mickan was still on the back of it. This vehicle was only just ahead of the fire when they reached the area of the Puckridge driveway. This provided something of a fire break. The smoke was not as dense. Paech stopped his vehicle 10‑15 metres past it on the left side of the Gap road, facing west. The learned trial judge concluded that, at that point, the road was of a width equivalent to at least three, or possibly four, vehicles.
At that stage the appellant was driving his truck on the left side of the road, in very poor visibility, at a speed of 40-60 kph. He conceded that he was concentrating on the flames rather than the road. As he approached the Puckridge driveway, he was also coming up over a crest.
The appellant emerged into the clearer area and simply did not see the stationary Paech vehicle at any stage. The truck impacted with the rear end of the Paech utility, which was spun around and rolled over so that it was upside down. It was forced completely off the road onto the verge. Both Peter Mickan and the appellant’s brother were projected into the air by the impact. They both landed on the road and each sustained injury.
Paech’s evidence was to the effect that he had only been stationary for a couple of minutes prior to impact. The appellant estimated his speed at 60 kph at impact.
As it happened a fire truck was being driven west along the road by the witness Shepherd, not far behind the appellant. He said that the smoke was so thick that he could not proceed at a speed above 20-25 kph. He arrived on the scene of the accident very shortly after it occurred and was both able to see Peter Mickan lying on the road and also to pull up well short of him. By then the fire had reached the driveway. Whilst the fire truck was mobile visibility was down to 5 or 6 metres.
Against that factual background the learned trial judge found the appellant guilty of negligence and Peter Mickan guilty of contributory negligence. He apportioned liability as to 80% against the appellant and 20% against Peter Mickan.
With respect I entirely agree with Millhouse J that it was quite inappropriate to hold Peter Mickan guilty of contributory negligence. One poses the question as to what else he could have done in the circumstances. Had he descended on to the road he would have been in grave danger from any approaching vehicle. The safest course was to remain in the back of Paech’s stationary vehicle, which at least afforded him some protection. His conduct in no way contributed to the accident which occurred, or the injuries which he sustained.
However, I am quite unable to agree that the appellant was, in the circumstances, totally innocent of any negligence. True it was, he was in an emergency vehicle and in a difficult situation. However, that did not absolve him from a duty of care to others. If he breached that duty, even in a small respect, he would be liable to those injured as a result of that negligence. As Latham CJ pointed out in The South Australian Ambulance Transport Incorporated v Wahlheim (1948) 77 CLR 215 a vehicle in an emergency situation is not entitled to drive in a manner which disregards all other persons or potential traffic. A duty of care still exists, although the standard of care may well vary according to the particular circumstances. Much the same point was made by White J in Morgan v Pearson (1979) 22 SASR 5, where he drew attention to what was said by Napier CJ in Blight v Warman and McAllan [1964] SASR 163 at 170. The learned Chief Justice there reiterated that the driver of a vehicle in an emergency situation is not relieved of the obligation to use such care as may be reasonable in the circumstances, given that the urgency of the situation may well justify the taking of risks which would not be justified in other circumstances.
Whilst, on well settled authority, this court must make its own independent assessment, it must, nevertheless, never be forgotten that the judgment of the learned trial judge, as to the issue of primary negligence, was arrived at in the context of the atmosphere of the trial and in the light of the impact made upon him by the whole of the evidence. We do not have that benefit on reading the bare transcript. It is a very important consideration in making an evaluation of the real degree of danger and urgency involved and the extent of the relative risks involved. Whilst it was necessary for him to consider the situation with which the appellant reasonably perceived himself actually to be confronted, the evidence of the witness Shepherd, who followed close behind the appellant, was by no means entirely irrelevant as to the prevailing conditions and degree of visibility. All three vehicles proceeded down the road and were only a very short distance apart.
In all of the circumstances the learned trial judge found that there was some degree of negligence on the appellant’s part. I am by no means satisfied that he was wrong.
A critical factor was the appellant’s knowledge that, in terms of time and space, Paech’s vehicle was not far in front of him and, for all he knew, Paech was experiencing similar difficulties with visibility. There was thus a very real risk that if the appellant drove, as he did, at what was a very high speed in conditions of extremely poor visibility, a collision or some other accident might well occur.
The picture which I derive from the evidence was that, whilst there was a need to evacuate the path of the fire, that need was not so critical as to justify the enormous risk which the appellant created, both to his vehicle and its passengers and anyone else on the road ahead of him. Common sense and prudence indicated that he had to have regard both to the fact that he knew that a vehicle was ahead of him and to the potential for that vehicle being forced to stop or slow down. To drive at a speed of upwards of 60 kph in such circumstances was, in my view, an act of folly - even if he was concerned for his own safety having regard to the fire front. It was merely substituting one danger for another.

I do not think that this court can ignore the appellant’s own evidence that he had actually forgotten the potential presence of the Paech vehicle ahead of him on the road and that, had he borne that in mind, he would have driven differently. This is no more than plain common sense. To do otherwise was to place his own vehicle in double jeopardy, whilst, at the same time, potentially endangering other persons. The trial judge has relied, among other things, on the appellant’s evidence when concluding that the appellant was guilty of negligence. I do not see how this court can cast aside the conclusions arrived at by the learned trial judge, as being patently erroneous.
For all these reasons, I do not think that this court can properly overturn the finding of some degree of negligence on the part of the appellant. It was a conclusion fairly open on the evidence.
I would dismiss the appeal, but allow the cross appeal and set aside the finding of contributory negligence.
DEBELLE J. I agree with the reasons of Olsson J. I too, would dismiss the appeal and allow the cross appeal.

[1998] SASC 6935

13 November 1998