Red Line Coaches Pty Ltd v Pennicott
[1990] TASSC 97
•16 May 1990
B20/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmanian Red Line Coaches Pty Ltd v Pennicott [1990] TASSC 97; B20/1990
PARTIES: TASMANIAN RED LINE COACHES PTY LTD
v
PENNICOTT, Derek
FILE NO/S: 962/1986
DELIVERED ON: 16 May 1990
JUDGMENT OF: Wright J
Judgment Number: B20/1990
Number of paragraphs: 28
Serial No B20/1990
List "B"
File No 962/1986
TASMANIAN RED LINE COACHES PTY LTD
v DEREK PENNICOTT
REASONS FOR JUDGMENT WRIGHT J
16 May 1990
On 23 May 1985, at approximately 4.45pm, Mr Badwi Roude was killed in a motor accident on the Northern Outlet Road near the junction of that road with Abbotsfield Road. At the time, Mr Roude was driving a Gemini sedan which was travelling in a general northerly direction along the Northern Outlet Road. A motor coach owned by the plaintiff company was travelling in the opposite direction. The coach was driven by an experienced driver employed by the plaintiff company, Mr Desmond Alfred Carpenter. The coach was travelling south in its correct lane at a moderate speed immediately before the accident. Mr Carpenter applied the brakes and swerved to the left in an attempt to avoid the collision, but the Gemini sedan hit the coach head on. The Gemini was entirely on its incorrect side of the road at the time of the collision.
I am satisfied on the basis of admitted facts and the evidence of Dr RS Parsons that the deceased Roude had consumed a significant quantity of cannabis shortly prior to the accident and that his plainly negligent driving is explicable in whole or in part by the intoxicating effects of this drug. Immediately before the collision with the Red Line Coach, the deceased Roude had overtaken a Valiant utility driven by the defendant Pennicott which was travelling in a general northerly direction along the Northern Outlet Road. This manoeuvre had been executed by Roude in circumstances in which it was plainly foolhardy to do so. Upon passing the defendant's vehicle and attempting to regain the correct side of the road, Roude lost control of his Gemini sedan which swerved first to the left and then hard to the right over the centre line into the path of the oncoming coach. I infer that this unusual manoeuvre resulted from Roude's frantic attempt to regain his correct side of the road when he perceived that he was dangerously close to the approaching coach. Coupled with his excessive speed at the time, this caused the rear wheels of the Gemini to lose traction and in attempting to rectify this loss of control, Roude over corrected and caused the Gemini to return to its incorrect side.
As a result of the collision, the Red Line coach caught fire and was destroyed. The plaintiff now seeks to recover damages from the defendant on the basis that he was partly responsible for the collision. It is alleged that the defendant was negligent in that he:
"(a)Accelerated when being overtaken by the said Gemini sedan when he knew or ought to have known that the plaintiff's vehicle was approaching in the opposite direction and thereby impeded the Gemini motor vehicle from completing its manoeuvre and returning to its correct side of the road in a safe and proper manner.
(b)When being overtaken by the Gemini sedan and when he knew or ought to have known that the plaintiff's bus was approaching in the opposite direction failed to brake either sufficiently or at all so as to allow the Gemini to complete the overtaking manoeuvre and return to its correct side of the road in a safe and proper manner.
(c)When being overtaken by the Gemini sedan and when he knew or ought to have known that the plaintiff's bus was approaching in the opposite direction failed to steer, swerve or so manoeuvre his motor vehicle so as to allow the Gemini to avoid the plaintiff's bus and/or to complete the overtaking manoeuvre and return to its correct side of the road in a safe and proper manner.
(d)Failed to keep any or any proper lookout."
In support of these allegations the plaintiff called evidence from a number of witnesses. The first witness was Mr Carpenter, the driver of the coach. It should be said at the outset that there was nothing whatsoever in Mr Carpenter's evidence which supported the plaintiff's claim against the defendant. Mr Carpenter told me that he was driving along the Northern Outlet Road in a southerly direction and passed the Abbotsfield Road junction at approximately 60 to 70 kilometres an hour. His side of the road was clear ahead for approximately two to three hundred metres. Approaching him and travelling north were ten or twelve cars "virtually bumper to bumper". He then saw a car about two hundred metres down the road pull out in an overtaking manoeuvre. It occurred to Mr Carpenter when this was being done that the driver of that vehicle may have some difficulty in regaining his correct side of the road because there were four or five other vehicles that the passing car would need to overtake before it could regain its correct side. There was no room for him to get between the vehicles in the line of four or five cars, unless someone "actually let him in". He said the first of the vehicles in this line was a white utility.
It is plain from Mr Carpenter's evidence and that of other witnesses that this vehicle was the defendant's vehicle. Mr Carpenter said that when the oncoming car got to the white utility, it cut in sharply and then "fishtailed" as the driver lost control. The car then came across the road in front of the coach. Mr Carpenter applied the foot brake and drove as far to the left as possible, partly off the southern carriage way and into the slip lane from Abbotsfield Road. He was unable to avoid a collision. Mr Carpenter said that the defendant's Valiant utility was travelling at a "normal speed" of about 90 k.p.h. which is within the speed limit applicable to that stretch of road. Mr Carpenter made no criticism whatsoever as to the manner in which the defendant's vehicle was being driven. In cross–examination he said, "I am quite clear that Roude's vehicle was overtaking four or five other vehicles very fast". He said also said that had the vehicle not lost control once it regained the correct side of the road, there would have been no imminent danger from his coach. Mr Carpenter said that before crashing into the coach, the Gemini had swerved to the left and back to the right on two distinct occasions.
I should record that Mr Carpenter appeared to me to be a wholly credible witness. He is an experienced taxi and coach driver of many years' standing and he was well situated, sitting high at the front of the coach to see the drama unfolding before him. Plainly, from the evidence which he gave, his account was not coloured in favour of his employer's case.
The plaintiff also called evidence from Mr Craig Cashion, a young man who was a passenger in his father's Holden Kingswood sedan travelling ahead of the coach in a general southerly direction at the relevant time. He said:
"I seen the Gemini overtaking all cars coming towards us. He swung on the wheel trying to get back in. The bus was behind us about 100 metres. We slowed down, we went to the left, he had heaps of time to get back in, he panicked and just lost it."
In cross–examination he agreed that the Gemini sedan had pulled out from behind four or five cars which were travelling directly behind the utility. He agreed that the Gemini was travelling extremely fast and that he overtook the cars ahead of him very quickly. He saw none of the overtaken cars accelerate or slow down. These cars were doing about 80 kilometres per hour in his estimation.
I was not as impressed by the evidence of Mr Cashion as I was by the evidence of Mr Carpenter, but plainly he was an independent witness and significantly his evidence in its essential features accorded with the evidence given by Mr Carpenter.
The plaintiff also called evidence from Mr Earl Shane Patman. Mr Patman had been driving his motor vehicle in a northerly direction prior to the accident. He was driving up a stretch of road which he called Chigwell Hill, where there is a dual carriage way for vehicles heading north. He was travelling in the overtaking lane near the centre of the road when his vehicle was overtaken by the Gemini sedan on the inside lane. The Gemini then came back in front of Mr Patman's vehicle. Mr Patman then went back into the left hand lane. He noticed then that there was a Valiant utility in front of the Gemini. It is plain that this was the defendant's Valiant utility. Both the Valiant utility and the Gemini overtook another vehicle and Mr Patman did likewise. Mr Patman's vehicle returned to the left hand lane, but the Valiant and the Gemini remained in the overtaking lane. At this stage the Gemini was very close behind the Valiant. Mr Patman described it as being "uncomfortably close" and "tail gating". The driver of the Valiant applied the brakes on his vehicle whilst the Gemini was travelling closely behind him. The Gemini remained behind the Valiant utility and could not have overtaken in the left lane had he wished to do so because there was other traffic in that lane at the time. There were no vehicles ahead of the Valiant which could have caused it to brake as and when it did. After this braking manoeuvre, the two vehicles continued on until just before the Box Hill Road overpass at which point the Gemini sedan pulled out to the right hand side of the Valiant as if to overtake it but the Gemini just moved out and then moved back in again. The Gemini repeated this manoeuvre two or three times. On the last occasion that this manoeuvre occurred, both vehicles were accelerating. As the Gemini pulled out the Valiant appeared to accelerate to the same speed as the Gemini.
Mr Patman accelerated in his vehicle but both the Gemini and the Valiant rapidly pulled away from him at an apparently equal speed. Mr Patman said he was doing about 85 to 95 kilometres per hour at this stage. The Gemini then moved completely into the south bound lane to overtake the Valiant and it appeared to Mr Patman that the vehicles were side by side during this entire manoeuvre. Mr Patman saw Mr Cashion's Holden Kingswood pull over to the side of the road as the two vehicles approached. From his perspective, Mr Patman could not see if the Gemini had pulled ahead of the Valiant utility. He said:
"I thought the Gemini was just about to go head on into the bus. The bus couldn't move over because there was a road island to his left. The Gemini swerved back into the north bound lane. From the place where he pulled out to overtake the Valiant utility to where he pulled back in would have been several hundred metres. As he came back into the left lane he lost control and the tail of the vehicle spun out to the left. He went across the road at right angles. It went across and under the bus and exploded. I didn't see the Valiant move to left or right. It appeared to stay in its normal lane."
Mr Patman is a young man, but like Mr Cashion, was an independent witness. He also holds a competition driving licence, not that this in itself means that he is a reliable witness. However, he gave his evidence in a careful and convincing manner and it is not possible to simply reject or devalue his evidence as to relevant events on the basis of any of the submissions put to me by counsel for the defendant. On the basis of Mr Patman's evidence it could reasonably be concluded that the defendant, by driving as he did, was frustrating Mr Roude's attempts to overtake his vehicle between the Box Hill Road overpass and the point at which Mr Roude's vehicle regained its correct side of the road. There can be little argument that if Mr Roude's overtaking manoeuvre was substantially prolonged by this conduct on the part of the defendant, and that as a consequence Mr Roude lost control of his vehicle and crashed into the coach, the defendant's manner of driving was causative of the ultimate collision. Mr Patman was quite emphatic that there were no cars ahead of the Valiant which were also overtaken by the Gemini prior to the collision.
The evidence of Mr Cashion and Mr Carpenter on the one hand, and Mr Patman on the other, is plainly in serious conflict on two important issues. Notwithstanding Mr Carpenter's employment by the plaintiff company, I think they can all be fairly regarded as independent witnesses who attempted to give their evidence in a fair and objective manner. The conflict between them cannot be wholly explained simply on the basis of the effluxion of time since the accident because it is apparent that they all gave evidence at an inquest which was held some time ago. It was not suggested to any of them that their memories, as to essential matters, were at fault, although defence counsel did suggest to Mr Patman that his recollection of the relevant topography of the roadway leading up to the point of collision was defective. Although this criticism may be justified to some extent, it does nothing to lessen my confidence that Mr Patman was a careful and essentially accurate witness.
Had the defendant not given evidence, my task of resolving the conflict between these witnesses would have been immeasurably greater. As I have already pointed out, Messrs Carpenter and Cashion were called in the course of the plaintiff's case and their evidence, if accepted, would completely exonerate the defendant from any allegation of negligence. In these circumstances counsel for the defendant was plainly not concerned to undermine the evidence of either of these witnesses by strenuous cross–examination and such cross–examination as did take place, tended merely to support their evidence–in–chief. The only witness damaging to the defendant's case was Mr Patman and he of course was vigorously cross–examined by defence counsel. Except in the minor respect that I have already mentioned, his evidence was not shaken. If the defendant himself had not given evidence, the plaintiff's case may well have foundered for failure to discharge the onus of proof irrespective of the rule in Insurance Commissioner v Joyce (1948) 77 CLR 39 and Jones v Dunkel (1959) 101 CLR 298. I am still puzzled as to why the plaintiff called Mr Carpenter and Mr Cashion when their evidence could do nothing to advance the plaintiff's claim and only served to bolster the defence case.
Having seen and heard the defendant's evidence, I think considerable support was given to the version of events deposed to by Mr Patman. The defendant admitted that he did indeed apply the brakes while travelling ahead of another vehicle while travelling on the highway prior to the point where the collision occurred. However he said he pulled to the left and that the braking manoeuvre occurred not in the centre lane of a dual carriage way but where the road was constituted by a single left hand lane only. It is plain however, that both he and Mr Patman were speaking of the same event and I prefer Mr Patman's version of what occurred at that time.
The defendant told me that he also recalled driving up the Chigwell Hill and that near a pedestrian overpass at the top he became aware of a motor vehicle behind him. This vehicle was travelling very close and it appeared as though it wanted to pass. The first area where this was possible was near where the road goes off to Claremont. Accordingly, the defendant says he braked and pulled to the left but the following vehicle did not pass as he expected. He says that he continued on in a normal way until the Box Hill Road overpass where there is only a single north bound lane. Just after this overpass, he noticed a vehicle beside him travelling north. The defendant says his speed was then about 45 miles an hour. He said the overtaking vehicle just went on and passed him quickly and pulled back to its correct side. The defendant said that he did not accelerate whilst he was being overtaken by this vehicle. He saw the approaching coach but did not believe that there was any necessity to take evasive action. He said that the overtaking vehicle, a Gemini, got in front of his vehicle by about twenty metres before it seemed to get into difficulties. He said the back left hand side of the Gemini appeared to lift and it then went straight across the road and became involved in the collision. When the Gemini regained its correct side in front of the defendant's vehicle, the coach was about 150 metres away. The Gemini was there for two or three seconds before it went back onto its wrong side of the road.
Pausing at this point, it is relevant to observe that the sequence of events spoken of by the defendant is broadly consistent with the sequence spoken of by Mr Patman. I also regard the defendant's evidence as strongly confirmatory of Mr Patman's firm claim that the defendant's vehicle was not simply the first vehicle in a line of four or five cars which was overtaken by Mr Roude's vehicle. Mr Patman was quite clear and was not challenged in his claim that the vehicle behind the defendant's utility when its brakes were applied near the Chigwell Hill was the Gemini which was ultimately involved in the fatal collision. The defendant claims that he does not know whether the car which passed him immediately before the smash was the same as the one which had been following him closely on Chigwell Hill. I reject the defendant's claimed lack of awareness as to the identity of this vehicle. I think he was being evasive and I think that he was well aware that the vehicle which he had previously seen and which had previously manifested an intention to overtake him, was the same vehicle which passed him immediately before the Abbotsfield Road junction. He claimed that he was a driver who normally kept his eyes on the rear vision mirror and checked it quite regularly. I cannot believe that he was unaware that he was still being followed by the Gemini from Chigwell Hill to the point at which it commenced to pass him. I can accept that he may have been unaware of the exact moment at which the Gemini pulled out to overtake him near the Box Hill Road overpass, but I am satisfied that he was well aware of this overtaking manoeuvre soon after it had commenced. He may have been unaware of the evasive action taken by Mr Cashion's Holden Kingswood as the passing Gemini approached this vehicle. It is not without significance that Mr Cashion said that even if his father had not swerved the car to the left, a collision would not have occurred between the Kingswood and the Gemini. If there was therefore a margin of apparent safety between those two vehicles, the defendant's claimed failure to observe the Kingswood's evasive manoeuvre cannot necessarily be rejected out of hand.
The defendant claimed that while the Gemini was passing his vehicle he did not accelerate and indeed took his foot from the accelerator when he saw the Gemini alongside him. He also said that the Gemini drew alongside and passed in the normal manner. It then came back to its correct side of the road and he did not notice anything wrong with the manner in which it was being driven until two or three seconds after it had passed and resumed its correct position on the left hand side. He said the loss of control of the Gemini appeared to having nothing to do with the overtaking manoeuvre.
I find this aspect of the defendant's evidence completely unacceptable and I have no doubt whatsoever that the driver of the Gemini lost control as a direct result of swerving back in front of the Valiant utility too sharply while travelling at a relatively high speed. As already indicated, the defendant was not an impressive witness and I think he was less than frank and was evasive on a number of matters. He does however provide strong confirmation for Mr Patman's evidence in a number of important respects as I have already mentioned. I should also say that I regard it as an important factor in accepting Mr Patman's evidence as I do that, unlike the other independent witnesses, he had a much better opportunity to observe the behaviour of both the Gemini and the Valiant utility over a significantly greater distance than did either Mr Carpenter or Mr Cashion.
Mr Patman's attention was drawn to both vehicles by reason of their behaviour at a point well prior to the point of collision. They travelled up the road ahead of him from that point on and he had a virtually unobstructed view of them at all relevant times. He had them under virtually continuous observation for a significant period of time. It is true that the further they drew ahead of his vehicle, the less capable he was of commenting upon their relative positions on the road or their relative speeds. However, he was quite clear that they were accelerating away from his vehicle and the plain inference which can be drawn is that, either deliberately or inadvertently, the defendant's vehicle was being driven alongside the Gemini in such a manner as to prevent the Gemini returning to its correct side at the earliest available opportunity.
Mr Barker, counsel for the plaintiff submits that a finding to this effect is a sufficient foundation for his client to succeed but that submission must be carefully analysed. If in fact the defendant inadvertently accelerated his vehicle and thus impeded the passing manoeuvre by the Gemini, I do not think that it necessarily follows that he was at fault in the relevant particulars alleged against him. Mr Barker submitted that he should have been keeping the Gemini under observation as a result of the earlier manoeuvres involving both vehicles at Chigwell Hill, but I think this casts too high a standard of care upon the defendant. There was other traffic to engage his attention at the relevant time, and if indeed he had applied the brakes in a genuine attempt to allow the Gemini to pass his vehicle on the Chigwell Hill, and it had declined to do so, there is no reason why he should have anticipated that it would then attempt a similar manoeuvre shortly thereafter. His vehicle was fitted with only a central rear view mirror and there is no evidence to suggest that the driver of the Gemini sedan indicated, either by flashing his headlights, giving an indicator signal, or blowing his horn, that he was about to attempt a further overtaking manoeuvre. I do not see that any additional duty was cast upon the defendant to watch out for irresponsible behaviour on the part of the driver of the Gemini simply because of the occurrence on Chigwell Hill. I therefore reject the submission that in the circumstances if the defendant was unaware of the Gemini's passing manoeuvre until it was well advanced, he should have been aware of that manoeuvre at an earlier time and should have taken more positive action to ensure that the Gemini regained its correct side of the road as early as possible. There was, of course, nothing to prevent the Gemini dropping back behind the defendant's vehicle and on the evidence of Mr Carpenter and Mr Cashion, the Gemini would not have been involved in the collision had it been kept under control as it regained its correct side of the road ahead of the Valiant. There is certainly no reason why the defendant should have anticipated that the Gemini's driver was under the influence of cannabis to the extent that subsequent analysis demonstrated.
This leaves for consideration the question of whether the defendant was in fact aware of the Gemini's attempted overtaking manoeuvre which was commenced near the Box Hill Road overpass and whether upon becoming aware of that manoeuvre, he quite deliberately matched the speed of his car to the overtaking vehicle so as to keep it on its incorrect side of the road as long as possible. In short, the question arises whether the defendant was trying to race the Gemini or was deliberately trying to force the Gemini's driver into a position of danger. Either allegation is a very serious one and it cannot necessarily be resolved by concluding as I have that the defendant was an unimpressive witness. One might readily surmise that a young man of aggressive disposition, driving a high powered motor vehicle, may be tempted to undertake some sort of a speed contest of the kind alleged. The defendant however is a middle aged man and he was driving a fairly old vehicle which he claimed to be in poor mechanical condition. There is however, no independent confirmation of this. As I have already stated, I am also conscious that the further the Valiant and Gemini drew ahead of Mr Patman's vehicle, the less able was he to appreciate their relative speeds or positions on the road, either ahead of or behind each other.
Mr Patman was asked in–evidence–in–chief whether he had seen the Valiant decelerate at all. He replied, "Not for the initial part of the overtaking manoeuvre, but I think that he must have decelerated right at the very end for the Gemini to have got in front of him, but I don't recall his brake lights coming on."
During his cross–examination the following questions were asked and answers given.
"QAt the point in time when the Gemini pulled back in front of the Valiant, you were up to 200 metres behind the Valiant?
AYes at least.
QYou would agree with me that it would be extremely difficult for you to assess the distance between the Valiant and the Gemini in a north/south direction when you were at least 200 metres directly behind them?
AYes ...
QDo you agree that it would be very difficult to assess whether the Valiant was accelerating when it is in the same plane as you and directly in front of you?
AAt the later stage of the manoeuvre, yes it is."
On the whole of the evidence I think that it is quite possible that the defendant deliberately engaged in a spontaneous speed contest with the driver of the Gemini and that this had the effect of substantially prolonging the distance which that vehicle had to travel in the south bound lane to complete the overtaking manoeuvre. But, persuaded though I am that Mr Carpenter and Mr Cashion were mistaken as to the number of cars which were overtaken by the Gemini, I am not persuaded that they were wrong when they assessed the Gemini as having sufficient time to safely regain its correct side of the road before the collision. Nor am I persuaded that they were wrong in assessing the Valiant's behaviour as unremarkable and in describing it as travelling at a moderate speed when the Gemini cut in ahead of it. It must not be forgotten that the driver of the Gemini must have been substantially affected by cannabis at the time so his erratic driving as he cut in ahead of the Valiant is not necessarily explicable on the basis that he was forced into a panic manoeuvre when he found that he was running out of room to pass safely. According to Dr Parsons, cannabis has severely adverse effects upon driving capacity. It affects a driver's "tracking" ability and it may affect his judgment of distance to such an extent that overtaking another vehicle can become very hazardous. There is also a tendency for a cannabis affected driver to lose his peripheral vision and for his hearing to be diminished. Such a driver tends not to react to visual stimuli and he can be very aggressive to other road users.
As I have already said there was no reason for the defendant to have been aware that Mr Roude was under the influence of a drug. Had Mr Roude not been so affected I think it likely that he would have regained his correct side of the road in safety and that any simultaneous acceleration by the Gemini and the Valiant before this point would not have affected subsequent events.
For these reasons, although I am not entirely satisfied of the defendant's innocence of the allegations against him, I am not satisfied on the balance of probabilities that he negligently caused the accident. Whilst I have preferred the evidence of Mr Patman to that of Mr Carpenter and Mr Cashion in those areas where their evidence is irreconcilable, I do not feel justified in rejecting their evidence in relation to those matters which formed the central focus of their attention as a potentially hazardous situation unfolded upon the road ahead of them.
It is idle to speculate as to what my final impression of their reliability may have been if, instead of the plaintiff calling Messrs Carpenter and Cashion as part of its case that task had been left to the defendant and those witnesses had then been subjected to a vigorous cross–examination designed to test their reliability. As it is, the plaintiff has not satisfied me that its allegations of negligence are sustainable.
There will be judgment for the defendant.
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