Shotter, Michael Thomas Edward v WTH Pty Ltd and Ioannou, Ioannis

[1998] TASSC 115

115/1998

PARTIES:  SHOTTER, Michael Thomas Edward
  v
  WTH PTY LTD

and
IOANNOU, Ioannis

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  M761/1997
DELIVERED:  24 September 1998
HEARING DATE/S:  14 September 1998
JUDGMENT OF:  Slicer J

REPRESENTATION:

Counsel:
             Appellant:  C W Law
             First Respondent:  D F M Zeeman
             Second Respondent:  D F M Zeeman
Solicitors:
             Appellant:  Page Seager
             First Respondent:  Butler McIntyre & Butler
             Second Respondent:  Butler McIntyre & Butler

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  115/1998
Number of pages:  5

Serial No 115/1998

File No M761/1998

MICHAEL THOMAS EDWARD SHOTTER v
WTH PTY LTD (ACN 000 165 855) and IOANNIS IOANNOU

REASONS FOR JUDGMENT  SLICER J

24 SEPTEMBER 1998

The appellant was the driver of a motor vehicle which collided with the rear of a "hire car" owned by the first respondent and driven by one of its customers, the second respondent.  The first respondent commenced proceedings to which the appellant denied liability, counterclaimed in negligence and commenced third party proceedings against the driver of the hire car.  Pursuant to an order of this Court, the proceedings were referred to the Master as an arbitrator in accordance with the Supreme Court Civil Procedure Act 1932, s37A, which provides:

"(3)      The award of an arbitrator to whom any action, cause or matter or any question or issue arising in any action, cause or matter has been referred under subsection (1) shall, for all purposes, unless set aside by the Court or a judge, be treated as the verdict of a jury."

The basis for the setting aside of such an award is governed by the principles applicable to review by appellate courts of findings of fact made by a single judge or a jury (Warren v Coombes (1979) 142 CLR 531; Taylor v Johnson (1983) 151 CLR 422; Waltons Stores v Maher (1987) 164 CLR 387; Devries v Australian National Railways Commission (1992 - 1993) 177 CLR 472).

The second respondent, a visitor to Tasmania, was driving along the Tasman Highway near Warrane, intending to visit Port Arthur.  At that point there is an exit lane which enables eastbound traffic to leave the dual lane highway and transfer to a lateral road, or travel along an overpass to the southern side of the highway.  An exiting motorist is required to move into a third lane, protected by an unbroken line, some distance well before the exit ramp, and travel some distance parallel to the main carriageway.  The second respondent, unsure of the appropriate route, moved into the exit lane, reducing the speed of his vehicle as he did so from seventy to eighty kilometres per hour, to between twenty and forty kilometres per hour.  It was his intention to proceed to the overpass and ascertain the correct direction.  Another vehicle (a utility which was following him) was transporting three "go-carts", two of which were on the tray and the other on the roof.  The driver of that vehicle, a witness called on the trial, conceded that the size and portion of the load was likely to impede the visibility of any following vehicle.  The utility, travelling at some eighty kilometres per hour, came up to the second respondent's vehicle in the exit lane and moved across the unbroken line, on to the dual carriageway, passed, and moved ahead.  In the opinion of that witness, the speed of the second respondent's vehicle had been reduced to between ten to twenty kilometres per hour at about the time of passing.  The appellant's vehicle, also travelling at approximately eighty kilometres per hour, entered the exit lane some seventy metres behind the utility.  The appellant stated that the first he saw of the second respondent's vehicle was as the utility moved to its right in order to pass, by which time the appellant's vehicle, then travelling at between sixty and sixty-five kilometres per hour, was some twenty metres behind the second respondent's vehicle.  The appellant's vehicle struck the rear of the second respondent's vehicle.  The arbitrator made the following findings of fact:

"1That the third party was travelling in the exit lane at a speed of between 10 and 20 kilometres per hour immediately before the collision and had not stopped in the exit lane prior to the collision.

2That the defendant first saw the third party when he emerged from behind the utility and that he was 20 metres from him and was at that stage travelling at between 60 and 65 kilometres per hour.  I accept that it was difficult for the third party to judge the distance at which the defendant was behind him at that stage.

3The defendant's speed at the point of collision was approximately 60 kilometres per hour.

4That the third party was looking ahead as he travelled along the exit lane until immediately before the collision when he saw the defendant's vehicle rapidly approaching from behind his vehicle."

No challenge is made to those primary findings.

The basis of appeal

The grounds set out in the notice of motion claim error in:

"1That the learned Arbitrator erred in not finding the applicable speed limit for the vehicles driven by the Secondnamed Respondent and the Appellant was 100km/hour and in finding that the Appellant's speed of 60-65km/hour was excessive in the circumstances.

…

3That the learned Arbitrator erred in making a finding that 'Agency' was not admitted.

4That the learned Arbitrator erred in finding that the vehicle driven by the witness, Brent Marley, was travelling at a reduced speed behind the vehicle driven by the Secondnamed Respondent.

5The learned Arbitrator erred in concluding that the Secondnamed Respondent's driving at a speed of 10-20km/hour in the circumstances was not negligent and did not cause or contribute to the occurrence of the collision of the vehicles driven by him and the Appellant."

It is common ground that the learned arbitrator erred in his finding that agency had not been admitted.  The parties had agreed a number of matters, including that the respondents admitted:

"… paragraphs 9 and 12 of the defence and counterclaim."

Paragraph 12 of the defence and counterclaim stated:

"At all material times the Plaintiff held a Public Vehicle Licence in respect of the vehicle registered DK6876."

The Traffic Act 1925, s26(1), provides:

"Where damage is caused to any person or property through any wilful or negligent act or omission of the driver of a public vehicle in a public street, such driver and the holder of a licence in respect of such vehicle shall each be liable for the amount of such damage."

The effect of that provision is to fix liability to the holder of a public vehicle licence and, as such, obviates any requirement to establish agency.  However, the error does not avail the appellant unless the determination as to negligence is set aside.

There was no evidence as to the permitted speed of a vehicle travelling along the exit lane.  The findings of the learned arbitrator relevant to grounds 1 and 5 are set out in the reasons for award at 3:

"From the findings of fact, the defendant must bear responsibility for the collision.  His speed in the circumstances was excessive and did not allow him sufficient time to take avoiding action to avoid colliding with the third party's vehicle, when his look-out ahead was obstructed by the utility which was travelling at a reduced speed behind the third party.

As to contributory negligence, the third party was moving in the exit lane, although at a slow speed, and in those circumstances could not be regarded as an obstruction on the exit lane (see Sanders v Lister [1947] SASR 21). There was no action which he could have taken in the circumstances to avoid a collision. I have no doubt that his slow speed was an irritant to any following motorist and likely to lead to impatience in a motorist attempting to pass, as Mr Marley safely did, but his conduct in the circumstances which occurred could not be held to be negligent or causative of or contributing to the collision."

Those conclusions were open on the evidence.  It was not necessary for the learned arbitrator to make a finding as to the maximum permitted speed of a vehicle travelling in the exit lane.  He was required to consider the speed of the appellant's vehicle by reference to the circumstances of the roadway, the presence and movement of other vehicles and the responsibility of a driver coming upon a slower vehicle.  Given that the appellant's view was inhibited by the objects on the tray and roof of the utility, it was incumbent upon him to slow down and keep a safe distance behind the utility in case there was some obstruction or other vehicle ahead.  The very nature of an exit lane involves a requirement to reduce speed in order to change direction and transfer to another roadway.  The evidence by the appellant that he was only some twenty metres from the second respondent's vehicle when he first saw it supports the conclusion that he was travelling too fast and too close to the utility before it commenced to overtake the second respondent's vehicle.  This was not a case of a preceding vehicle coming to an abrupt halt (Smith v Harris [1939] 3 All ER 960; Sauer v Townsend A87/1972).  The appellant was in a following vehicle, and, as such, best able to perceive and evaluate the conduct of preceding vehicles (Bevin v Burrows 84/1960).  It may be that the driver of the utility bore some responsibility for the cause of the accident by his manoeuvre (Elliott v Crippes A40/1979); but the conduct of the second respondent in not maintaining a relatively high speed in the exit lane and reducing his speed whilst he attempted to gain orientation was not of itself negligent.  It was open to the learned arbitrator to find that his slow speed was an "irritant", but such does not of itself constitute negligence.  He was not required to leave the highway.  The appellant relied on the case of Cassar and Another v Kearney and Another (1985) 3 MVR 185 for the proposition that the slow speed of a preceding vehicle can constitute negligence. In that case, the driver of a slow earth moving vehicle which had been obscured from view by a furniture van was held solely responsible for a collision with a following vehicle after the sharp divergence of the furniture van. The Full Court of the Supreme Court of Victoria set aside the finding and held that both drivers were equally responsible. However, Southwell J, with whom Murphy and Brooking JJ agreed, in upholding, in part, the original finding of negligence against the driver of the earth moving equipment did so on the basis that he was required to pay regard to the conclusions of the trial judge, stating at 188:

"For my part, I have encountered difficulty in accepting that the roller driver was guilty of committing an 'inherently dangerous action'.  The roller was, as the truck driver himself admitted in cross-examination, a conspicuous vehicle.  No other description would be apt for a vehicle of considerable height, bright yellow colour, and with flashing lights operating at the rear.  I would infer that a driver approaching from behind and keeping a reasonable lookout would have observed the roller from a distance of some hundreds of yards."

and concluding at 189:

"In the end I have found myself entertaining sufficient doubt as to whether the learned trial judge was clearly wrong in finding that the roller driver was negligent as to inhibit me from so finding.  I at first tended to the view that there was error, but I remind myself of the words in Warren v Coombs that I must give respect and weight to the conclusions of the learned trial judge.  Accordingly I am not prepared to find that his Honour was wrong in finding negligence on the part of the roller driver.

However, in my opinion, the learned trial judge was clearly wrong in finding that the truck driver had not been proven guilty of negligence.  His Honour, as I have already indicated, gave no reason for that finding.  There is in my view a strong case against the truck driver.  I believe he failed to keep a proper lookout.  Upon his own version he was too close to a vehicle which entirely blocked his view of the roadway ahead.  When the van in front suddenly reduced speed the truck driver did not apply his brakes in order to maintain a safe gap between the van and his own vehicle.  He was virtually driving blind as to the roadway more than about 70 m in front of him.  He could not safely assume that no slow moving vehicles would be on the highway ahead.  Accordingly I am of the view that the learned trial judge should have found that the truck driver was guilty of negligence which caused or contributed to this collision."

A similar approach was taken and conclusion reached by the High Court in Braund v Henning (1988) 7 MVR, in which the court in a joint judgment, said at 102:

"While we recognise that the driver of a following vehicle which collides with the vehicle which is proceeding ahead of it is usually held primarily liable for the consequences of the collision, we find that the circumstances of the present case, in the context of the construction of the highway in the vicinity of the interseciton, dictate a different result."

It was open on the evidence for the learned arbitrator, applying the correct test of negligence, to conclude that the appellant was wholly liable for the damage caused in the collision.  That being so, this Court, in considering the notice of motion, ought not simply substitute its own conclusions or those of the primary tribunal, but should consider the inferences which were reasonably open to it (Johnson v Johnson 16/1998).  As Barwick CJ stated in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506:

"Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them.  Here no doubt the appellate court has more room for setting aside that conclusion.  But, even in that case, the fact of the trial judge's decision must be displaced.  It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference.  It must be shown that the trial judge was wrong.  This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn:  or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong."

The appellant has not made out grounds 1 and 5 of the notice of motion.  The error complained of in ground 4, even if established, would not entitle the appellant to succeed.  The learned arbitrator preferred the evidence of the driver of the utility, Marley, and the second respondent to that given by the appellant.  Marley, who had been called as a witness by the appellant, deposed that he had observed the brake lights of the second respondent's vehicle come "on and off a couple of times", and, upon checking that there were no vehicles in the main carriageway, pulled out to pass.  He gave no direct evidence of his having reduced speed before effecting a passing manoeuvre, but said that his speed on entering the exit lane was approximately 80 kilometres per hour.  Whether he slowed somewhat before effecting the passing manoeuvre or not makes no difference to the relative conduct of the appellant and the second respondent.  The learned arbitrator made no specific findings that Marley reduced speed and such was not necessary for his findings.  In any event, the finding complained of would have been permitted if one considers the appellant's evidence that he was travelling at sixty kilometres per hour at the time of the passing manoeuvre.  This in turn would afford an inference that Marley had slowed slightly.  The ground is not made out.

The notice of motion ought be dismissed.