Owen David Taylor and Jessica Lee Taylor v Peter John Nulty No. SCGRG 95/579 Judgment No. 5716 Number of Pages 12 Negligence

[1996] SASC 5716

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), BOLLEN(1) AND NYLAND(3) JJ

CWDS
Negligence - road accident cases - liability of drivers of vehicles - negligence - road collision - care to be taken in applying the idea of defensive driving enunciated by Wells J in Stoeckel v Harpas (1971) 1 SASR
172. Limitation of Actions Act s48; Wrongs Act, referred to. Stoeckel v Harpas
(1971) 1 SASR 172; DeVries v ANRC (1992-1993) 177 CLR 472, applied.

HRNG ADELAIDE, 8 July 1996 #DATE 9:8:1996 #ADD 17:9:1996

Counsel for appellant:        Mr S Walsh Qc with Mr F Greenwell

Solicitors for appellants:    Brown, Aston and Hamilton by their
  agent Daenke O'Donovan

Counsel for respondent:     Mr R White

Solicitors for respondent: Stratford and Co

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal by the defendant in an action heard in the District Court. It was heard by Judge Burnett. I will call the parties "the plaintiff" and "the defendant".

2. The action was one for damages pursuant to the Wrongs Act and for injuries sustained by the adult plaintiff, Owen Taylor ("the plaintiff"). It arose out of a collision between two vehicles. that happened on 21 April 1988 at the junction of Talbot Road and Benara Road, Moorak, near Mt Gambier. It happened on a very dark, but dry, night.

3. One vehicle was driven by the wife of the plaintiff, Lyn Taylor. She was killed in the accident.

4. The plaintiff brought the action originally as one for his benefit and for the benefit of Jessica Lee Taylor, the infant child of the plaintiff and Lyn Taylor. But, out of time, he amended to seek damages for himself for "nervous shock". The learned judge acceded to the plaintiff's application to extend time under s48 of the Limitation of Actions Act. There is no appeal against that extension. I clear out some other dead wood by saying that an issue about whether Lyn Taylor was wearing a seat belt does not now concern us.

5. The learned judge began by announcing his findings about the credibility and reliability of witnesses. Of the defendant the judge said:
    "The Defendant gave evidence. Like the Plaintiff, the
    Defendant's evidence was lengthy. He was cross-examined at
    length. He did not depart from his version of things in any
    material way, notwithstanding a series of questions relating
    to estimates of speeds and distances (as to events that
    occurred over six years ago). Questions that were complex
    and not easy to understand. What emerged was a pleasant
    young man who had a good memory of an event in his life
    which obviously moved him very deeply. The Defendant
    impressed me as a good and honest witness and I accept the
    testimony that he gave. Mr. Greenwell (for the Plaintiff)
    tried (as he had to) to `rattle' the Defendant but, apart
    from some questions and answers where the Defendant
    obviously and understandably had difficulty in coming to
    grips with the question, he was not moved from his version
    of things."

6. It is extremely important to remember and give full weight to the fact that the judge found the defendant to have been truthful and reliable. The argument offered so ably by Mr Walsh QC, for the appellant, gave far too little weight to this finding of the trial judge. When all is said and done on a vital issue, illumination or no on the vehicle driven by the defendant, the defendant said his lights were on and the trial judge believed him. The judge believed him despite evidence and theories offered in contradiction to the evidence of the defendant. The defendant called some evidence in support of his assertion. But it was the acceptance of his evidence which really mattered. Moreover the inherent probabilities were in favour of "his" light being on. He had driven for some distance on unlit country roads. The night was very dark. He could not have failed to notice it had "his" lights not been on.

7. Mr Walsh QC complained that the learned trial judge had not analysed and thoroughly considered all evidence especially that about illumination of headlights. He said that the judge formed a favourable view of the defendant and thereupon took everything at face value in favour of the case for the defendant.

8. I vigorously reject those submissions. There is no hint of superficial consideration or a failure thoroughly to consider anything in the admirable reasons of the learned and experienced judge.

9. The defendant called his mother. Of her, the judge said:
    "The Defendant's mother, Mrs. C.A. Nulty was called. Her
    evidence was limited to the question of lighting on the
    Defendant's vehicle on the night in question. I thought
    that Mrs. Nulty was a good witness who also had a clear
    recollection of things and I accept her testimony also."

10. The defendant called a police officer and Mrs M.P. Williams who had by trial become his mother-in-law. The learned trial judge accepted the evidence of the police officer (Mr Kirk) and that of Mrs Williams. That was evidence of what they saw at the scene of the accident afterwards but it supports the evidence of the defendant that his lights were on.

11. The learned trial judge thought that the plaintiff was truthful but mistaken in some matters. The plaintiff called two police officers. Of them, the learned trial judge said:
    "Next, the Plaintiff called Senior Constable Peter Langdon,
    a police mechanic often called to give evidence in cases
    involving motor vehicle accidents. Constable Langdon
    examines motor vehicles involved in collisions to see
    (inter alia) if the condition of the vehicles could have
    contributed to the collision. Constable Langdon examined
    the Toyota Land Cruiser vehicle driven by the Defendant in
    this action. Constable Langdon reached some conclusions
    concerning the lighting of the vehicle and frankly admitted
    that he had done so upon an erroneous footing. Constable
    Langdon was an objective and good witness and I accept his
    evidence, but it does not advance things much."

12. The plaintiff called an engineer. He proffered him as an expert in road collision and of movement of vehicles and in the electricity systems of motor vehicles. He was Mr H.S. Aust. Of him, the learned trial judge said:
    "The Plaintiff called Mr. H.S. Aust an engineer. Mr. Aust
    has, for a number of years, been engaged in investigating
    motor vehicle accidents with a view to offering evidence
    (inter alia) as to how aspects of events leading to a
    collision and other surrounding circumstances might be
    interpreted by a Court to assist it in reaching a decision
    as to the probable cause of an accident, the subject of
    litigation. In the case at bar, Mr. Aust made a valiant
    attempt to support two theories. The first was that the car
    driven by the deceased turned from Talbot Road into Benara
    Road without stopping. The second was that it was possible
    that the Defendant had been driving without lights operating
    on his vehicle when the accident occurred. Mr. Aust's
    evidence also dealt at technical length with possibilities
    related to speed, reaction times, the Defendant's version of
    things as related to the police and the like. I have no
    doubt that Mr. Aust's evidence was given honestly and with
    objective sincerity but I do not accept it where it
    conflicts with other, more cogent and acceptable, evidence.
    As I put to Mr. Aust at the time, his views did not seem to
    give weight to the obvious, namely, human error on the part
    of the deceased."

13. The plaintiff called his sister, Mrs S. Munro, who impressed the judge as a good witness. He called witnesses as to damages. One need not discuss this evidence.

14. I turn to the accident. The learned trial judge wrote an excellent account of how it happened. I quote from his reasons. The passages quoted tell us what happened. It tells us, too, the findings of the learned trial judge on many issues. It describes the scene. The learned trial judge said:
    "Moorak is a farming area situated about six kilometres or
    so west of Mount Gambier. At the relevant time, the
    Plaintiff owned a small farming property which was adjacent
    to Talbot Road, Moorak and perhaps 400 or so metres to the
    south of the junction of Talbot Road with Benara Road. The
    Plaintiff, the deceased and the infant Plaintiff lived in a
    house situated on the farm.

Benara Road is the main road linking Mount Gambier and
    Carpenter Rocks. It is a bitumen road divided by a broken
    white line with one lane for each direction of travel.
    Benara Road runs approximately east and west and, at its
    junction with Talbot Road, curves slightly to the right for
    traffic travelling west.

Talbot Road runs from the south to the north before joining
    Benara Road in a slightly bell shaped junction. The
    configuration of the junction can be seen on the plan drawn
    by Constable Vilcins which is part of exhibit P8. Talbot
    Road is also a bitumen road. It is not a main road but has
    room for one vehicle to travel in each direction
    comfortably.

The junction has no street lighting. It has no stop or
    give-way signs erected. The speed limit for vehicles in and
    about the area of the junction is 110 k.p.h. The
    measurements and topography of the two roads are set out
    adequately and accurately in the plan and statement of
    Constable Vilcins (exhibit P8) and I see no point in
    repeating them here. The subject accident happened in a
    rural area, at a comparatively open junction and in
    circumstances where there is little, if anything, in the
    topography or measurements of the scene that could have made
    driving especially difficult or, indeed, could have had any
    direct effect upon the cause of the collision.

I pause to make it clear that, when I speak of directions of
    roads etc., I speak in approximate terms, and when I speak
    also of the time of the accident because my understanding is
    that little, if anything, has changed since the accident.
    Indeed, some of the yellow marks sprayed on to the roadway
    by the police in the course of their investigations at the
    time could still be seen when I took the view.

The accident occurred at about 7.30 p.m. on a cold, clear
    night. It was not raining, the road surface was dry. It
    was dark and, of course, there were no street lights at the
    junction where the accident happened.

For much of the day, the deceased had been helping the
    Plaintiff with the work around the farm. At about 6.30 p.m.
    or so the Plaintiff and the deceased decided that she would
    go into Mount Gambier to buy a take-away meal for their tea.
    The deceased went into the house, had a shower and then set
    off for Mount Gambier driving a yellow 1974 model Toyota
    "Corolla" motor car. After leaving the farm, she travelled
    north on Talbot Road towards the junction of that road with
    Benara Road. I find that the headlights on the Corolla were
    operating at all relevant times. Although Mr. Aust has
    argued to the contrary, I find that the deceased brought her
    vehicle to a stop at the junction and before she commenced
    what was to have been a right hand turn on to the road to
    Mount Gambier (Benara Road).

At about 7.00 p.m. or a little later on the night in
    question, the Defendant (who was then aged 20 years) set off
    from his parents' home driving a 1978 model short wheel base
    Toyota "Land Cruiser" vehicle fitted with a "bull bar" at
    the front. The home was at Suttontown which is some six or
    so kilometres out of Mount Gambier. The Land Cruiser was
    owned by the Defendant's parents. The Defendant's intention
    was to drive to the home of his then girlfriend, now wife,
    at Locke Road, Moorak. Locke Road is some two kilometres
    from Talbot Road and further on to the west. That meant
    that the Defendant had to negotiate the subject junction on
    his way to Locke Road and that he faced a journey of twelve
    or so kilometres in all to the junction travelling via the
    outskirts of Mount Gambier and then on Benara Road.

The deceased and the Defendant were each alone in their
    respective vehicles and there were no eye witnesses to the
    accident that occurred. The Defendant said (and I accept)
    that he was familiar with the junction before the accident
    and had negotiated it on a number of occasions. I assume
    that the deceased would also have been familiar with the
    junction, the evidence clearly supports that assumption.

It was dark when the Defendant left his home and the head
    and tail lights on the Land Cruiser were operating when he
    left the farmhouse. He says that and he is supported by his
    mother and I accept what they say.

I find that, thereafter, the head and tail lights on the
    Land Cruiser were operating normally until the impact
    occurred. Of course, the headlights were put on high or low
    beam according to the demands of other traffic as the
    Defendant continued his journey but I accept that, at all
    relevant times, the Land Cruiser was appropriately lit.

As the Defendant drove along Benara Road towards the
    junction, he positioned his vehicle about two to three feet
    from the left hand edge of the bitumen road surface. That
    is, a perfectly reasonable position on the road. The
    Defendant was driving the vehicle at between 100 and 110
    k.p.h. as he approached the junction.

As the Defendant approached the junction, there was another
    car travelling some 50 metres or so ahead of the Land
    Cruiser. The other vehicle also had its lights on, it was
    travelling in the same direction and at about the same speed
    as the Defendant.

When the Defendant was about 100 metres to the east of the
    junction, he saw the car driven by the deceased. When he
    saw it first it was stationary `a few feet back' from the
    left-hand edge of the bitumen of Benara Road. Its
    headlights and right-hand turning lights were operating.
    The deceased allowed the vehicle ahead of the Defendant to
    pass on its way. Then, at a stage when the Defendant
    thought he was 10 to 15 metres away from the Corolla (it
    must have been further), the deceased pulled out in front of
    the Land Cruiser. The deceased moved off in a normal
    unhurried manner, straight into the path of the Land Cruiser
    which was still coming from her right at about 100 to 110
    k.p.h.

As soon as the Defendant reacted to what had happened, he
    applied the brakes heavily but was unable to avoid the
    inevitable collision that occurred between the two vehicles.
    The impact occurred in the left-hand (correct) lane for
    vehicles travelling in the direction that the Defendant was
    travelling. The Land Cruiser left two, roughly parallel,
    skid marks on the road surface leading to the approximate
    point of impact. The skid marks were 16.3 and 15.6 metres
    in length respectively.

After the impact, the Land Cruiser executed a complete 360
    degree turn before coming to rest about 19 metres or so west
    of the approximate point of impact and facing west in the
    middle of the road. The Corolla came to rest off the
    bitumen surface to the north of Benara Road and facing
    south, south east (roughly). The photographs taken by the
    police (exhibit P1) show (inter alia) the vehicles and their
    positions and condition after impact. It can be seen that
    the Corolla took the impact on the right centre side of the
    cabin. It was extensively damaged. It can also be seen
    that the Land Cruiser took the brunt of the impact on the
    `bull bar' which is bent back. The photographs disclose
    that the right front headlight of the Land Cruiser was
    broken at impact. The photographs show (and Constable Kirk
    and Mrs. Williams confirm in whole or in part) that the tail
    lights of the Land Cruiser and the front left headlight of
    the vehicle were operating after impact."

15. There is no doubt that the deceased was guilty of negligence. The plaintiff's case was that the defendant was guilty of negligence, that the deceased was guilty of negligence and that there should have been an apportionment of responsibility leading to an award of some damages for the plaintiff both under the Wrongs Act and for his nervous shock.

16. The learned trial judge rejected the case sought to be made by the plaintiff. The main avenue of attack essayed by the plaintiff was that the defendant drove without illumination from his headlights. The plaintiff argued below and here that, in any event lights or no, the defendant drove too fast towards and into the intersection without proper defensive co-ordination of speed and lookout. Such proper co-ordination would have enabled the defendant to have halted or at least to have reduced the seriousness of the impact. With such proper co-ordination the defendant, even if not able to halt, would have struck the other vehicle towards its rear. The impact would have been less severe. Its consequences would have been less dire.

17. The learned trial judge said of the case as a whole:
    "I hope that I have made it plain that I accept the evidence
    of the Defendant to the effect that the lights on the Land
    Cruiser vehicle were operating at all relevant times. This
    evidence receives some support from the testimony of
    Mrs. Nulty, Constable Kirk and Mrs. Williams. The support
    is limited, of course, because it relates to times shortly
    before or after the collision. However, the only survivor
    of this dreadful accident is a sensitive, credible young man
    whose evidence I accept, and I find that the lights were on.

That finding rejects the Plaintiff's case on this aspect of
    things which was, in essence, that the deceased was usually
    a very careful, prudent driver who was cautious and law
    abiding when behind the wheel of a car. Such a driver could
    not have done what the plain objective facts indicate -
    namely, that she obviously failed to see an illuminated
    vehicle approaching from her right and, disobeying the rules
    of the road and every principle of safe driving, drove
    directly into its path. Therefore, the argument goes, there
    must be another explanation for what occurred. It must be
    that the Defendant was driving in the dark without lights.
    Then followed the technical argument about lighting circuits
    for high and low beam on the Land Cruiser, Constable
    Langdon's factual error and speculation about what effect
    the impact could have had on the headlights. Frankly, on
    the view I take of the evidence and its weight, this is a
    valiant, but somewhat desperate, effort to explain away the
    obvious. I see no need to dwell upon it further - I am
    satisfied that the headlights on the Land Cruiser were
    working at the time."I repeat. There is nothing superficial
    about those remarks and the findings in them. The learned
    trial judge gave proper and thorough consideration to the
    evidence including that of Aust and Constable Langdon. In
    fact, I think that his finding the headlights on the Land
    Cruiser were working at the relevant time, is not merely
    supported by the evidence but right. The logical
    explanation for the accident was, as the learned trial judge
    suggested, the fact that the deceased did not see what was
    there to have been seen - the approaching headlights of the
    Land Cruiser.

Mr White, in his able summary of the evidence, on the
    question of headlights said that the evidence of Senior
    Constable Langdon and Aust relied on by the appellant did
    not make the evidence proffered by the defendant "glaringly
    improbable" (DeVries v ANRC 1992-93 177 CLR 472). It should
    not now be doubted.

Mr Aust, no doubt, knew much about electric circuits. But
    he could not inspect the relevant vehicle. It had been sold
    before he was instructed. He did not inspect the circuit of
    a comparable vehicle. Senior Constable Langdon originally

    formed a view on incorrect facts. Mr Walsh QC spoke of the
    evidence of Langdon. In his Outline he wrote of it
    thus:"Constable P.C. Langdon The high beam only, was
    operating on the left headlight and there was current on the
    high beam point on the right side but the headlight was
    broken (p157.16) The low beam wasn't working at all
    (p157.20) He acknowledges that there was in fact only one
    fuse for both high and low (p157.36) He agrees that the
    cause of the low beam not working could not have been a
    blown fuse given that the high beam was operating (p158.12)
    He says it could have been a faulty switch or a wire could
    have been broken off somewhere but he didn't see any broken
    wires (p158.20) He concedes that it may have been that the
    circuit was not working before the accident (p158.28) He
    doesn't now have notes of his examination (p160) There are 2
    separate wires coming into the back of the unit one for high
    beam and one for low (p161.13) Constable Langdon's written
    report appears at p567."

18. Mr White pointed out that there were several explanations of what he called the "finding" of Senior Constable Langdon. In his Outline he wrote:
    "A number of other explanations were available as to the
    `finding' of S/C Langdon.
    (a) that the Land Cruiser had not in fact been wired in the
    manner depicted in Ex P9 (469)
    (b) accident damage (158L20)
    (c) damage between the time of accident and S/C Langdon's
    inspection.
    (d) that S/C Langdon was mistaken in his observations."

19. The evidence of Aust and Langdon does not survive close examination. Contrary to the submissions of Mr Walsh I think that the learned trial judge gave it close consideration. He rejected it. It was evidence that, had he thought otherwise, he could have accepted. But he did not. He preferred the positive evidence of the defendant. The defendant was there driving along the road. He just could not have driven any distance in a mistaken belief that his lights were on. He was truthful and reliable.

20. The appeal cannot succeed on the issue of "headlights".

21. Mr Walsh submitted vigorously that the defendant "did not react as soon as he should have done". I deal with that submission. The defendant approached the junction at a speed which he had reduced to 100-110 kph. It was a lawful speed. He was following the rear of another vehicle which was some 50 metres ahead of him. That vehicle travelled through the junction. In fact, the deceased had waited for it to go past. As he drew nearer to the junction the defendant saw the vehicle driven by the deceased standing at the mouth of the junction with its headlights and its right-hand turn lights operating. The defendant was on his "correct" side of the road. The defendant was, he estimated and as the judge found, about 100 metres from the junction when he so saw the car driven by the deceased. The defendant gave this evidence:
    "Q You tell me what happened as you drove in a westerly
    direction along Benara Road.
    A As I was driving along Benara Road the lady in the car in
    Talbot Road was stopped, there was a car about 50m in front
    of me. She let the car in front of me go past and as I got
    to just in front of her, she pulled straight out in front of
    me.

Q When she pulled out in front of you, about how far away
    from her was your car.
    A. About 10 or 15m.

Q At that time, how fast were you travelling.
    A About 100, 110.

Q At that time were the lights on your motor vehicle
    operating.
    A Yes, they were.

Q Do you know what beam they were operating on.
    A Low beam.

Q When she pulled out, did you take any notice of her speed
    as she pulled out.
    A Yes, I did.

Q Can you tell us anything about it.
    A It was just like a sort of normal take-off speed for a
    car.

Q Well when she pulled out, what, if anything, did you do.
    A I just hit the brakes.

Q Did the brakes operate to slow the motor vehicle, before
    the collision occurred.
    A Yes, they did, but didn't do a very good job.

Q Did a collision subsequently occur between your motor car
    and the other motor car.
    A Yes.

Q What part of your motor car was first involved in the
    collision.
    A The front of the car.

Q And with what part of the other car did your car
    collide.
    A Her driver's side.

Q Did you see the driver of the motor car, before the
    collision occurred.
    A Yes, I did.

Q How is it that you were able to see her.
    A Because I could see her face from the headlights.

Q From what headlights.
    A My headlights.

Q When you saw her face in your headlights, which way was
    she looking.
    A She was looking at me.

Q What part of her car was first involved in the
    collision.
    A Her driver's side.

Q As a result of the collision, did something happen to your
    car.
    A It spun around in a 360 degrees."

22. The learned trial judge accepted that evidence.

23. Mr Walsh embarked on a time and space calculation to found his submission that the defendant should have been able to have halted before impact or reduced speed sufficiently to, in turn, reduce the force of impact. He said, basing himself on evidence given by Aust and in a report from a Dr McLean, that the defendant had 3 seconds within which to act. Mr Walsh, in his submissions, spoke to us as if 3 seconds is a long time.

24. Time and space calculations are notoriously unreliable. They depend on assumptions and estimations of time and distance. I do not think that Mr Walsh has made good his submissions based on this calculation. The learned trial judge rejected a similar submission put to him. He said:
    "Realistically, the Plaintiff's only prospect of obtaining
    any contribution from the Defendant is the `defensive
    driving' argument. It is plain that the deceased departed,
    in very significant ways, from the appropriate standard of
    care to be expected of her. Was there any departure from
    the standard of care required of the Defendant?

The Defendant was driving a properly lit vehicle at a speed
    permitted by law and appropriate on that road at that place.
    The vehicle was appropriately positioned on the road. No
    question of alcohol or other drug use arises. The weather
    conditions played no part in the accident. The Defendant
    saw the deceased's vehicle at a stage when he might
    reasonably have been expected to see it: the vehicle was
    stationary, it was indicating its intention to turn right
    and it allowed the car in front of the Defendant's vehicle
    to pass on its way. To that point there can be no
    suggestion (in my view) of departure from the required
    standard of care on the part of the Defendant. His manner
    of driving, including his look-out, was quite acceptable.

The question then arises as to whether there was anything
    that the Defendant could, or should, have done once he saw
    the deceased in her vehicle for the first time. Should he
    have anticipated what actually happened? Should he have
    braked heavily? Should he have reduced speed at all?
    Should he have steered to the right? What else should he
    have done, if anything? I think that, in the circumstances
    of the case, there was nothing that the Defendant could
    have, or should have, done. Perhaps, if there had not been
    another vehicle but a short distance ahead which passed the
    deceased without incident, the Defendant might have reduced
    speed or been more ready to apply the brakes, but I doubt
    it.

The concept of defensive driving was encapsulated by
    Wells J. in the very well-known case of Stoeckel v. Harpas
(1971) 1 SASR 172. It has been the subject of judicial
    pronouncement frequently. It is so well-known that it
    requires no re-statement by me. It is clearly the law that
    applies in the case at bar. In my view, to apply the
    principle to the Defendant in this case and thereby
    apportion liability would be to take the principle too far.
    It would be tantamount to holding the Defendant to be
    negligent simply because he was involved in the accident."

25. I respectfully agree. I think that the defendant had no reasonable chance of avoiding or significantly reducing the force of the impact. Three seconds is a very short time. Mr Walsh's submissions made no allowance for initial surprise and fright. Much of the three seconds would have been taken up in recovering from fright and surprise. No doubt, the defendant could have driven more slowly towards the junction. But he was proceeding at a lawful speed. The car ahead of him went through the junction passing in front of the car driven by the deceased. The deceased had halted to allow one car to go past. She had caused the defendant to think that she would wait for him to pass as the law requires.

26. I think it a counsel of perfection to urge that the defendant should be found to have been negligent. I respectfully agree with the remarks of the learned trial judge about Stoeckel v Harpas (supra). The concept of defensive driving is very useful and, properly applied, is (if I may say so) plainly correct. But if pressed too far, pressed beyond what Wells J said and intended, there is a risk of calling for perfection on the part of motorists. Reasonable care is what is required of motorists. It has not been shown here that the defendant was lacking in reasonable care.

27. I would dismiss the appeal.

JUDGE2 DOYLE CJ For the reasons given by Bollen J, to which I have nothing to add, I agree that the appeal should be dismissed.

JUDGE3 NYLAND J I also agree that the appeal should be dismissed.