Reed v Fleming
[2001] WASCA 424
•20 DECEMBER 2001
REED -v- FLEMING [2001] WASCA 424
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 424 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:107/2001 | 4 DECEMBER 2001 | |
| Coram: | STEYTLER J HASLUCK J OLSSON AUJ | 20/12/01 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowedCross-appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALAN REED JAY DOUGLAS FLEMING |
Catchwords: | Damages Negligence Contributory Negligence Apportionment of fault Assessment of damages Inconsistency of observations of certain eye witnesses Inconsistency of opinion of expert witnesses Turns on own facts |
Legislation: | Nil |
Case References: | A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 Devries v Australian National Railways Commission [1993] 177 CLR 472 March v E & M H Stramare Pty Ltd [1991] 171 CLR 506 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 Watt V Bretag (1982) 56 ALJR 760 Black v Gough (1997) 26 MVR 191 Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563 George v Erickson (1998) 27 MVR 323 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : REED -v- FLEMING [2001] WASCA 424 CORAM : STEYTLER J
- HASLUCK J
OLSSON AUJ
- Appellant
AND
JAY DOUGLAS FLEMING
Respondent
Catchwords:
Damages - Negligence - Contributory Negligence - Apportionment of fault - Assessment of damages - Inconsistency of observations of certain eye witnesses - Inconsistency of opinion of expert witnesses - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Cross-appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr J R Brooksby
Solicitors:
Appellant : Bradley & Bayly
Respondent : Greenland Brooksby
Case(s) referred to in judgment(s):
A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Devries v Australian National Railways Commission [1993] 177 CLR 472
March v E & M H Stramare Pty Ltd [1991] 171 CLR 506
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
Watt V Bretag (1982) 56 ALJR 760
Case(s) also cited:
Black v Gough (1997) 26 MVR 191
Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
George v Erickson (1998) 27 MVR 323
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
(Page 3)
1 STEYTLER J: I have had the advantage of reading the reasons for decision of Olsson AUJ. I agree with them and consequently with his Honour's conclusion that the appeal should be allowed, that the judgment appealed against should be set aside, that there should be substituted for it a judgment against the respondent for the full amount of the appellant's damages to be assessed and that the cross-appeal should be dismissed.
2 HASLUCK J: I agree with the reasons for judgment of Olsson AUJ and with the orders proposed by his Honour.
3 OLSSON AUJ: The Court has before it an appeal and a cross-appeal against a judgment entered by a District Court Judge in an action for damages brought by the appellant against the respondent.
4 The action arose from a motor vehicle accident which occurred on 23 June 1997, when a Toyota Corolla van driven by the appellant came into collision with the rear of an Atkinson Prime Mover truck on Roe Highway, Forrestfield. In light of the evidence led before him the learned trial Judge entered judgment in favour of the appellant for 50 per cent of his damages to be assessed.
5 In effect, the appellant contends that the learned trial Judge fell into error in concluding that he was guilty of any contributory negligence at all. Alternatively, he complains that the assessment of 50 per cent was grossly disproportionate to any fault on his part. By cross-appeal, the respondent complains that, having regard to the evidence, the learned trial Judge ought to have concluded that the appellant had failed to prove any causative negligence on the part of the respondent. Accordingly, the claim ought to have been dismissed.
6 As is so often the situation in cases of this type, there were significant differences between the accounts of the various witnesses called at trial, as to the precise details and sequence of what transpired at about the time of the accident.
7 The learned trial Judge pointed out that some issues of credibility had arisen, particularly as to the appellant and the respondent. He found that neither were credible in relation to certain aspects of their evidence. Somewhat familiar problems of inconsistency of observations of certain eyewitnesses also complicated the fact-finding process. As the learned trial Judge appreciated, the objective facts and the independent evidence
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- of the police investigators were therefore important elements in deducing the true facts.
8 This was more so as the situation was further complicated by differences of opinion which arose between the expert witnesses called, as to the condition of the respondent's truck and what had brought it about.
9 It is convenient, first, to address the core narrative facts.
10 At about 10.00 am on 23 June 1997 the appellant was driving his Toyota Corolla van in the right-hand lane of the northbound carriageway of Roe Highway at Forrestfield. It was a fine, dry day, and there was no evidence to controvert his assertion that his vehicle was in good condition. The relevant section of the road was straight, there was nothing to impede his vision and he was travelling at about 100 kilometres per hour. He intended to go to Swan View.
11 The respondent had been driving his truck ahead of the appellant in the same direction, but in the left lane, at about 90 to 95 kilometres per hour. The total rig weighed of the order of 59 to 60 tonnes. He testified that, on looking in the rear right driver's mirror, he observed oil on the fuel tank, apparently coming from some portion of his vehicle. He checked the oil pressure gauge and saw that the pressure was dropping.
12 The respondent testified that he immediately switched the ignition off and allowed the truck to coast to a stop, steering it to a halt on the left side of the highway, inside the left white line.
13 At the time there was a fairly steady flow of traffic.
14 The respondent said that, on exiting his vehicle and checking under it, he observed that there was a problem with the oil filter. There was oil dripping from the truck.
15 The learned trial Judge rejected the respondent's evidence that there was no oil on the hard shoulder of the road behind the truck, although there was oil in the left lane up to about 40 to 50 feet away. That evidence was contrary to independent evidence of the investigating police, to which I shall come in due course.
16 The respondent decided to put out his emergency triangles because of the traffic flow. However, their design was such that they would not stay upright unless weighted down, due to ambient winds and winds caused by passing vehicles. Accordingly, he left his vehicle and walked back down the road looking for rocks to place on the triangles.
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17 When he was at a distance which he estimated at about 40 feet from the rear of his truck, he saw what proved to be the appellant's vehicle. He said that it was in the right-hand lane, when it braked and veered left into the left-hand lane, and continued across the white line until it struck the rear of the truck. That evidence was not accepted by the learned Judge as accurate.
18 There is no doubt that the oil filter had actually become detached and fallen from the truck. It was later found 750 to 800 metres back from the scene of the accident.
19 The learned trial Judge accepted the evidence of the investigating police officer to the effect that the respondent's truck had been parked three to four inches to the left of the white line, ie, completely clear of the left lane. There was an oil slick 500 metres in length back behind the truck, more or less in the centre of the left lane. Its width was no greater than one metre and, as the learned trial Judge found, "was gradual and it tapered out towards where the accident occurred".
20 He accepted that about five litres of oil would have dropped out almost as soon as the oil filter became detached and that the trail observed by the police investigator must have been made by about a further 20 to 25 litres - the intensity of it reducing near the actual accident site.
21 On the hearing of the appeal, much was made by counsel for the respondent of what, he said, could and should be derived from the various photographs of the locus tendered at trial. He sought to rely upon these as demonstrating that there had been no oil deposited in the left lane for at least 100 metres prior to the point of impact, and as confirming the evidence of the respondent that his vehicle had travelled for about that distance on the shoulder of the carriageway, outside the left lane.
22 In my opinion, such suggestions cannot be accepted.
23 As to the evidence of the respondent, it is clear that the learned trial Judge had serious reservations as to the respondent's credibility and did not accept what he said about various aspects of the situation immediately pre-impact. Furthermore, one searches the reasons expressed by his Honour in vain for any finding to the effect now contended for.
24 Moreover, the photographs relied upon must be reviewed with great care, at least for the purpose of extracting any positive information other than the general features of the locus in quo.
(Page 6)
25 In fact, most of the photographs were not actually taken until 22 March 2001, (ie, many months after the accident) and it follows that any alleged physical indicia of the events of 23 June 1997 may be questionable.
26 Even the photograph appearing at AB226 was taken upwards of a week after the accident. It was tendered with the caption, "Photo shows oil stain when it was washed off the road". When that is considered in concert with the respondent's evidence, as recorded at AB114 to the effect that it had been his intention to contact the Department of Main Roads, as a priority task, to get it to clean up the mess on the bitumen surface, it is highly probably that what is depicted in the photograph is the scenario after the oil slick had been washed off the bitumen as a "clean up" exercise. What is seen in the photograph is certainly consistent, in appearance, with such a situation. Moreover, the remaining stain on the left surface verge of the road is suggestive of a substantial, continuing deposit of oil up to the point where the truck stopped. In these circumstances, it seems to me that the inferences sought to be derived by counsel for the respondent as to a lack of oil on the surface of the left lane for a considerable distance back from where the truck was parked do not have any relevant factual foundation. Indeed, on the balance of probabilities, I consider that the evidence of the police officer implies a quite contrary situation.
27 At trial three expert witnesses were called to express opinions as to how and why the oil filter became detached. Essentially, there was a difference of opinion as to whether, when the respondent serviced his vehicle, he had over-tightened or significantly under-tightened the filter.
28 The learned trial Judge occupied some time in discussing this conflict in the course of his reasons for judgment. However, as he pointed out, at the end of the day, it did not really matter which of the two possibilities was the real causative factor. He was abundantly satisfied that, whatever was the situation, the filter had been installed by the respondent contrary to the manufacturer's clear instructions; and the respondent had not checked or corrected any problem during subsequent maintenance, in the period between the installation and the accident. In the result, metal fatigue had caused the filter to break away and drop off. Fatigued areas of the filter were observed in and around the "female" flange into which the "male" part of the adaptor plate was screwed.
29 The appellant gave evidence to the effect that, as he approached what proved to be the accident site, he decided to pass some vehicles travelling
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- in the same direction and then move over to the left lane. He looked in his rear-vision mirror and began to change lanes. The vehicle went out of control. It would not steer and the brakes seemed ineffective. He had not tried to brake whilst still in the right lane.
30 It was conceded by the appellant that he first became aware of the presence of the respondent's truck soon after he lost control (and when a little over 50 metres from it), at a time when he was powerless to avoid an impact. He accepted that he may have lost control as much as 120 metres from impact, but insisted that such loss did not occur until he was actually in the left lane.
31 Two independent eyewitnesses were called at trial. Their evidence did not completely tally with one another, or, for that matter, with the evidence of the appellant.
32 The witness Hardman was driving his utility in the left lane at about 100 kilometres per hour, several cars behind the appellant, who was then in the right lane. Hardman observed the appellant's vehicle commence to merge over into the left lane, following which it "veered towards" the emergency stopping lane [in the area to the left of the white line] and hit the truck.
33 Hardman told the learned trial Judge that he did not, at first, see anything abnormal about the appellant's vehicle, but then it began to veer. It was his impression that the lane changing commenced about 200 metres back from the truck. This witness did not see the appellant's brake lights come on until very shortly prior to impact.
34 It will be noted from that summation that, in many respects, Hardman's evidence was reasonably consistent with that of the appellant.
35 However, the witness D'Cunha gave evidence of somewhat different observations.
36 She said that she had been driving in the right lane, at about 100 kilometres per hour, behind the appellant.
37 It was her recollection that, without indicating, the appellant suddenly swerved to the left and started to slide in the left-hand lane. He lost control and hit the stationary truck. She had no idea why the swerve occurred and considered that it took place about 100 metres prior to impact.
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38 This witness said, in cross-examination, that the appellant's vehicle crossed diagonally into the left lane and was then "gliding", with the appellant frantically trying to correct the steering of the vehicle.
39 The learned trial Judge, understandably, expressed some difficulty in reconciling the inconsistencies in the evidence. However, on balance, he generally preferred the evidence of Ms D'Cunha, because she was directly behind the appellant's vehicle.
40 The ultimate conclusions of the learned trial Judge were expressed as follows:
"I am unable to determine what exactly caused the plaintiff's vehicle to swerve into the left hand lane, however, what is clear is that it was not caused by any oil spill from the defendant's truck. The clear conclusion from the facts is that the plaintiff made a movement to the left which evidenced a failure to properly manage and control his vehicle at the point - the movement to the left was not the movement of a vehicle of which the driver was in proper control.
Having veered into the left hand lane, it is a reasonable inference to draw from the evidence that the vehicle was not travelling in a straight line but continuing with the veering, the wheels were turning at an angle to the road itself. At this point, it can be accepted on the evidence that the plaintiff's wheels, whether it be one or more, came into contact with the oil track from the filter. At this point, the plaintiff, for a reasonably short period, lost control of the vehicle completely, saw the truck and panicked, and then forcefully applied his brakes. By this time, the vehicle was within 50 to 60 metres of the defendant's vehicle and was moving at the same time in a line albeit to a degree sideways, towards the rear of the defendant's vehicle. At a distance from 50 to 60 metres from the defendant's vehicle, the plaintiff's vehicle was, in effect, under the influence of the oil slick and the plaintiff was unable to correct the sliding motion of the vehicle."
41 On the basis of those conclusions the learned trial Judge assessed:
"There were two major causes of the accident. The first was the initial movement by the plaintiff from the right to the left lane which … involved a failure to properly control the vehicle, but, thereafter, the plaintiff became unable to correct the vehicle
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- which was then placed in a position where the plaintiff could not hold it in a straight line in the left lane as a result of contact with the oil".
42 The appellant was, in those circumstances, held contributorily negligent.
43 In assessing the conduct of the respondent the learned trial Judge found that he was relevantly negligent in that:
• he failed to properly install and, later, inspect the oil filter, causing it to fall and deposit oil on the road surface, which was "a substantial contributing cause to the accident"; and
• he did not have adequate hazard signs and erect them in a timely manner to properly warn approaching motorists.
44 He considered that, on the evidence, each party was equally responsible for what occurred.
45 The appellant complains of the finding of contributory negligence against him on the footing that there was, it is contended, no evidence on which it could be concluded that his movement from the right to the left lane had, in any way, caused or contributed to the collision; and that the real cause was the oil spill stemming from the negligent installation of the oil filter and the failure to erect warning signs. It was argued that it was not foreseeable that the appellant, in moving between lanes, would encounter an oil hazard on the road (of which he had no prior knowledge); and that there was no evidence on which it could fairly be concluded that the appellant's vehicle was out of control before it encountered the oil spill - such an assessment was speculative.
46 In the course of his written submissions, counsel for the appellant argued that, in any event, there was simply no convincing reason to prefer the evidence of D'Cunha to that of Hardman, who was accepted as a credible witness and had testified that he observed the whole manoeuvre by the appellant and that there was no sign of lack of control until the Toyota actually moved into the left lane. Moreover, he said, at best, D'Cunha's evidence merely indicated a change of direction and movement from the right to the left lane, however sudden that might have been. There was no evidence at all to establish that the initial movement in the right lane was in any way causally related to the subsequent loss of control, when the appellant's vehicle encountered the oil slick.
47 The respondent's cross-appeal sought to raise a series of issues.
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48 First, it challenged the propriety of the factual finding that the oil filter fell off as a consequence of the negligence of the respondent, on the somewhat extraordinary basis that, there being a conflict of experts as to whether the filter had been over-tightened or under-tightened, no good reason had existed to reject the respondent's evidence that he had fitted it correctly. That ground was abandoned on the hearing of this appeal.
49 Second, it was said that there was insufficient evidence that any oil spill on the road had played any part in the causation of the accident in which the appellant was involved. As to this, counsel for the respondent submitted that:
• any oil spill was relatively confined and spread over a considerable length of road;
• although there was a substantial traffic flow, there was no evidence of any other driver having difficulty of control;
• the evidence indicated that the appellant had already lost control before he hit the oil slick;
• there was no evidence that the oil on the road would have been capable of causing a loss of control; and
• there was no evidence that the appellant actually lost control until he was substantially, if not completely, off the bitumen surface - at which point any oil would have ceased to play a causative role.
50 In the course of his submissions counsel for the respondent sought to demonstrate that, because the oil filter had become detached almost a kilometre back from the point of impact, only a nominal trail of oil would have been left in the area constituting the immediate approach to the accident scene. It was said that there was no basis for attributing any causative negligence against the respondent at all.
51 The proper approach to be adopted in relation to the issues of fact in this case is, of course, that expressed by the High Court in Devries v Australian National Railways Commission [1993] 177 CLR 472 ("Devries"). To the extent that any findings made by the trial Judge may be based on considerations of credibility, due weight must be given to the advantage enjoyed by him of seeing and hearing the relevant witnesses, but, even in such a case, it is incumbent on this Court to weigh conflicting evidence and draw its own inferences and conclusions. There may be circumstances which show whether or not a statement is credible and they
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- may warrant the Court differing from the Judge's finding based on the credibility of witnesses.
52 It is also salutary to commence a review of the competing arguments as to apportionment of liability by recalling what fell from the High Court in Watt V Bretag (1982) 56 ALJR 760 at 761. The majority there made the point that the apportionment legislation "gives a very wide discretion, and much latitude must be allowed to a trial Judge in deciding what is just and equitable (Pennington v Norris (1956) 96 CLR 10 at 15 - 16). It is only in exceptional circumstances that it is right for an Appellate Court to interfere with a trial Judge's apportionment". Reference was made to what had been said in A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 at 101 and British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 198 - 199. Similar sentiments were echoed in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532 and have consistently been applied ever since. This Court is only justified in interfering with an apportionment if it is satisfied that any apportionment of liability made at trial was plainly wrong.
53 It is convenient, first, to commence with a consideration of the cross-appeal.
54 In essence, Mr Brooksby, counsel for the respondent, contended that the findings of the learned trial Judge did not accurately reflect the evidence given by the witness D'Cunha, who was generally preferred to the other witnesses.
55 His submissions really came to these propositions -
• The oil which was dropped by the respondent's truck was pumped out more or less evenly over a distance in excess of 500 metres. This would have created an oil trail of minimal intensity and certainly not enough to create a danger of loss of control to another vehicle. In fact no other vehicles did lose control;
• Moreover, the skid marks left by the appellant's vehicle, as recorded by the police on the bitumen surface, were adjacent to a location where the oil trail had actually moved off the carriageway surface and on to the hard shoulder, where the truck had pulled over. The evidence indicates that oil would not have been the cause of any loss of control; and
• The descriptive evidence given by D'Cunha indicated that, in any event, the appellant had clearly lost control of his vehicle whilst still in the lane nearest the median strip. He there commenced a swerve,
(Page 12)
- from which he did not ever recover. He did not even brake until very shortly prior to impact. The only logical inference is that, whatever caused the initial swerve, any oil spill on the road was not a causative factor;
- • It follows that the appellant's claim ought to have been dismissed.
56 The appellant joins issue with that process of reasoning as being in discord with the relevant evidence. He also contends that certain of the findings made by the learned trial Judge do not give adequate recognition of the weight of the evidence and what are said to be the compelling inferences arising from it.
57 It therefore becomes necessary to give detailed consideration to the relevant evidence.
58 The appellant testified that, when he arrived at the traffic lights at the intersection of Tonkin Highway with Roe Highway, they had just turned green, so that he overtook and moved past some vehicles in the left lane "because they were just taking off at the lights".
59 Having proceeded about 200-300 metres past those traffic lights, he decided that he ought to move back into the nearside traffic lane. The road was clear ahead and he also saw no potential embarrassment to the vehicles in the left lane by executing the manoeuvre which he proposed. He thought that he may have registered the presence of the respondent's truck ahead, but had no reason to pay attention to it until he appreciated that he was going to hit it.
60 The appellant unequivocally denied having lost control of his vehicle whilst in the right hand lane. He said that he changed lanes in the normal way; and that, as he got into the left lane he seemed to lose all control and could not steer out of the situation. He braked as he approached the back of the truck trailer, but to no avail.
61 That general sequence of events was lent strong support by the witness Hardman who, as earlier recited, testified that he observed the appellant's vehicle from the time that it commenced to change lanes. The only reasons expressed by the learned trial Judge for preferring the evidence of Ms D'Cunha to Hardman's evidence were that she was travelling directly behind the appellant's vehicle, had a very good view of it and was "very firm" in her memory of the movement.
62 Hardman was no less firm in his evidence that the appellant started to "merge" over into the left-hand lane, but then continued to veer over
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- towards the emergency stopping lane. He felt that the initial lane changing commenced about a couple of hundred metres back from the respondent's stationary truck. The appellant's brake lights came on far too late to prevent an impact with the rear of the truck. Hardman himself swerved to his right to avoid the rear of the appellant's vehicle after the impact.
63 This witness unequivocally denied that the appellant had appeared to lose control whilst still in the right-hand lane. He was neither examined nor cross-examined at great length.
64 The initial evidence-in-chief of the witness D'Cunha is, in my view, important for present purposes, as to its precise expression. Having said that she was driving about four car lengths behind the appellant's vehicle, she testified:
"It swerved to the left and started to slide in the left-hand lane."
65 She said it did so "quickly" and had commenced the swerve about 100 metres prior to the point of impact. Ms D'Cunha went on to describe what happened in these terms:
" … the car was sliding in the left-hand lane and I saw the driver trying to, like, regain control of the car as it was sliding and then it just slammed into the back of a parked truck … ."
66 This witness went on to describe the appellant's car as "gliding" whilst it was in the left-hand lane. Although the driver was attempting to regain control by "trying to correct the steering", the car kept moving across to its left "it didn't seem to be doing anything" in response to the steering corrections.
67 Relevantly, that was, in reality, the sum total of her evidence. Once again the examination and cross-examination were quite brief. As a general comment, it must be said that the evidence of all witnesses touching on the sequence of events related to the lane changing and subsequent loss of control was dealt with in a fairly perfunctory manner by both counsel, the major evidentiary focus in this case being on what had caused the oil filter to become detached.
68 It seems to me, on a careful study of the transcript, that, with respect, neither the findings of the learned trial Judge nor the submissions of counsel for the respondent constitute an accurate reflection of what this witness actually said.
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69 There are, as I see it, two matters of significance about her evidence.
70 The first is that it was never put to her by anyone, nor did she volunteer, that the appellant had lost control of his vehicle whilst in the right-hand lane. She said no more than that the appellant swerved quickly from the right-hand lane into the left-hand lane.
71 The second is that she specifically testified that the van "started to slide in" [and not "into"] the left-hand lane.
72 Save as to the issue of whether the initial change of lane was a quick swerve or (as Hardman considered) a quite normal movement, all of the evidence actually pointed to an initial, controlled movement from the right lane to the left lane, followed by a "sliding" or "veering" movement to its left, once the van was in the left-hand lane, with the appellant, seemingly, unable to control the vehicle.
73 It is quite clear that, when one analyses Ms D'Cunha's evidence, her description of the appellant trying to regain control is plainly limited to the time when his vehicle was sliding "in" the left-hand lane. It must be stressed that she consistently used that description on several occasions, given that, on one occasion during cross-examination, Ms D'Cunha did describe the movement of the van as "drifting" into the left lane; going across "in like a diagonal". She went on to say that, once in the left lane, the appellant's vehicle "was sliding" as the appellant was trying, unsuccessfully, to regain control.
74 Consistently with what fell from the High Court in Devries, given the state of the evidence as I have above outlined it, it is open to this Court to draw such inferences as it considers fairly arise from the descriptions given by the various witnesses – particularly as, in some respects, that evidence was relatively perfunctory in each instance, as to the issue in question.
75 I am firmly of the opinion that the inference of initial loss of control, by the appellant, in the right lane was not open on the evidence. On the contrary, the evidence, when carefully considered, is to the contrary. The respondent himself gave no evidence which definitively bore on that aspect.
76 Equally, the other inference which inexorably arises is that something dramatic occurred when the appellant's vehicle made its diagonal movement across into the left-hand lane. All relevant evidence indicates that, in the course of the lateral movement into the left lane,
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- there was a sudden, apparently inexplicable, loss of control in that lane with the appellant unable to regain control, despite a desperate effort on his part to do so.
77 The learned trial Judge, not unsurprisingly, drew the inference that the only logical reason for such a scenario was the presence of oil on the road, which affected the grip of the tyres of the appellant's vehicle on the bitumen surface as to their sideways motion. I consider that such inference was not only open to him, but actually arose compellingly from the evidence.
78 It is no answer to such a potential inference to say that other vehicles were not adversely affected. For the most part, on the evidence, the so-called "oil slick" ran down more or less the centre of the left lane and would probably not have affected the tyre adhesion of vehicles proceeding straight along that lane. Furthermore, the fact that the slick ran off the nearside lane to the left during the immediate approach to the parked truck does not lead to a contrary conclusion.
79 As a matter of logic, given the speed of the appellant's vehicle, time and space considerations, and the effect of the evidence generally, it is manifest that the commencement of the lane changing must have taken place well back from the location of the truck, at a point where the oil slick would have been running along the left lane. Precisely where that may have been is impossible to determine with any pretence at precision. However, it is a matter of simple mathematics to deduce that, initially, the appellant's vehicle must, initially have been moving at a rate of the order of at least 26 metres per second.
80 In the foregoing circumstances, it becomes apparent that the respondent's argument in support of the cross-appeal is untenable.
81 As to the appeal, it is my opinion that the appellant has demonstrated error on the part of the learned trial Judge as to the construction which he placed on the effect of Ms D'Cunha's evidence. That being so, it is open to this Court to make its own assessment of the respective culpability of the parties, given the primary findings as to negligence against the respondent.
82 It is beyond question that an apportionment by the learned trial Judge of 50 per cent against the appellant for contributory negligence was the direct product of his conclusion that, for some unknown reason, the appellant had lost control of his vehicle, virtually from the outset of his change lane manoeuvre.
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83 Once it be accepted that this was not the case, a very different picture emerges.
84 As was pointed out by Mason CJ in March v E & M H Stramare Pty Ltd [1991] 171 CLR 506 at 507 ("March"), a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage.
85 So it is, in the instant case, that the relevant accident would not have occurred had the applicant not initiated a change of lane at the time and place and in the manner in which it occurred. It may never have happened had he (for example) been travelling at a much lesser speed, observed the oil on the road and braked at a much earlier point in time. It would not have occurred if the oil filter had not become detached and oil had not been deposited on the surface of the left lane. It may well not have occurred if the respondent had been properly equipped and put out effective warning triangles immediately after his truck came to a halt.
86 However, at the end of the day, legal liability depends upon an assessment of causation in relation to damage sustained.
87 As the learned Chief Justice pointed out in March (at 512), the courts may identify, in some situations, one of several preconditions to a consequence resulting in injury as the effective (and sole) cause of that injury, treating each of the others as a causa sine qua non, having merely the status of an incident preceding the initial occurrence and, hence, irrelevant. In other cases, it may be considered that there are concurrent and successive causes of damage which will indicate a need to apportion liability as between two or more wrong doers. What is involved, in each instance, is a question of fact and degree (March at 515). A common sense judgment must be made.
88 A commencing question to be addressed, as to a party, is whether the conduct of that party has generated the very risk of injury in question and such injury actually occurs in the ordinary course of things.
89 As in March- given a finding in this case that the deposit of oil on the surface of the left lane was the foreseeable consequence of the respondent's negligent conduct (in the manner in which he fitted the oil filter and subsequent ineffective maintenance) and given a proper finding that the appellant's inability to control his vehicle after it entered the left lane was due to the presence of the oil - it is apparent that the negligent conduct of the respondent created a situation of danger – the risk being
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- that another driver (even a careless driver) would be caught unaware and lose control, as was the case with the appellant.
90 To paraphrase Mason CJ in March, the purpose in imposing the relevant common law duty on the respondent in relation to the adequate maintenance of his vehicle, was to protect motorists from the very risk of injury that befell the appellant. In a very real and direct sense, the respondent's negligence, which resulted in the oil slick on the road, was the continuing cause of the accident which actually occurred.
91 True it is that the appellant was travelling at a relatively high speed. But this was a permissible speed on what was a straight stretched main, two lane, highway; and appears to have been the speed at which the main body of traffic was also moving. It was not inherently unsafe in the circumstances and it was to be expected that traffic generally on a highway of that type would be commuting at such a speed.
92 Equally, it was to be expected that vehicles in a stream of traffic on a main highway would, from time to time, change lanes – possibly fairly rapidly. In the instant case, although the initial swerve by the appellant to change lanes was said to be sudden (and may not even have been indicated), there was no evidence to suggest that the manoeuvre was such as to embarrass other drivers on the road, or inherently unsafe. In short, there was nothing particularly exceptional about the manner of driving of the appellant on the occasion in question.
93 As I have indicated, the only logical inference (which was actually drawn by the learned trial Judge) was that the oil on the bitumen surface - (the presence of which could scarcely have been foreseen by the appellant) – caused him to lose control. This, in turn, precipitated the accident which followed. The effective cause of the accident was the negligence of the respondent in creating the hazard which undoubtedly existed, and directly gave rise to the accident. This is not a situation, such as in March, where, to employ the language of Deane J (at 521 – 522), it is not possible to isolate the fault of either of the parties as the sole cause of the damage.
94 In those circumstances, I would dismiss the cross-appeal, allow the appeal, set aside the judgment appealed against and substitute for it judgment against the respondent for the full amount of the appellant's damages to be assessed.
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