Smithson v Guest
[2006] QCA 473
•17 November 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Smithson v Guest & Anor [2006] QCA 473
PARTIES:
MARGARET ANNE SMITHSON
(plaintiff/appellant)
v
GRAHAM GUEST
(first defendant)
NOMINAL DEFENDANT
(second defendant/respondent)FILE NO/S:
Appeal No 4616 of 2006
SC No 6570 of 2004DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
17 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
9 November 2006
JUDGES:
de Jersey CJ, Holmes JA and Chesterman J
Judgment of the CourtORDER:
Appeal dismissed, with costs to be assessed
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – PARTICULAR PERSONS AND SITUATIONS – MOTOR VEHICLE CASES – where road being resurfaced was wet and slippery – where appellant’s vehicle skidded off road –where first defendant’s vehicle skidded off road and hit appellant’s vehicle – whether any departure from requisite standard of care – whether appellant’s claim for damages should have been dismissed
Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62, cited
COUNSEL:
M Grant-Taylor SC, with J R Webb, for the appellant
S C Williams QC with M J Liddy, for the respondentSOLICITORS:
Robbins Watson Solicitors for the appellant
Sparke Helmore Lawyers for the respondent
THE COURT: The appellant claimed damages in respect of personal injuries sustained because of a motor vehicle collision on 8 November 1996. The learned trial Judge held that she had failed to establish that negligence on the part of the first defendant had caused the collision, and dismissed the proceeding. She appeals against the dismissal of the proceeding.
The collision occurred in unusual circumstances, just off Mundoolun Road, south of Brisbane. The appellant drove her station wagon in a north westerly direction along the road. The local authority was in the process of resurfacing its carriageway. The clay surface of the road was wet and slippery because of recent rain. The appellant was travelling down a slight decline, reducing the speed of her vehicle from 30 kilometres per hour to 16 to 20 kilometres per hour, and applied the brakes, whereupon her vehicle skidded off the carriageway into a ditch. Shortly after that, the first defendant’s sedan collided with the rear of her vehicle, and she was injured.
The first defendant had travelled along the road earlier that day, in the opposite direction, and had appreciated that the road was wet and slippery and in bad condition. Returning in the other direction, he saw the appellant’s vehicle in the ditch when he was 40 to 50 metres away. The first defendant’s vehicle was then travelling at about 40 kilometres per hour. His intention was to come to a halt beyond the appellant’s vehicle, and to return on foot to render assistance. He braked gently, until the vehicle was travelling at only about 10 kilometres per hour, but then the brakes locked and his vehicle skidded off the road to collide with the rear of the appellant’s vehicle. Illustrating the poor quality of the road surface, the first defendant then reversed the vehicle back to the centre of the carriageway, whereupon it slid down the other side.
The learned Judge made the following findings of fact, which are not challenged:
“My findings of fact are as follows. The plaintiff was travelling at less than 20 kilometres per hour and exercising caution appropriate in the circumstances when she skidded off the road to the left into a spoon drain. The surface of the road where the skidding took place was clay. Rain earlier that day and perhaps on a previous day or days, had made the road wet and slippery. Some measure of its slipperiness can be gauged from the facts that: the plaintiff and the first defendant’s vehicles each skidded off the road although travelling at quite slow speeds; the first defendant’s vehicle skidded off the other side of the road when he reversed it back onto the middle of the road after the accident; and the first defendant found the road surface slippery to walk on.
…
The first defendant was travelling back along Mundoolun Road when he observed the plaintiff’s vehicle and deduced from its position that the driver was ‘in trouble’. His speed was then about 40 kilometres per hour. He formed the intention of going to the driver’s assistance and, with a view to stopping, gently applied his brakes. His car slowed, without skidding, to well under half its previous speed before commencing to skid off the road into the rear of the plaintiff’s vehicle. The first defendant’s vehicle was fairly close to the plaintiff’s vehicle when its skidding commenced.”
The Judge set out the following conclusions as to liability:
“In my view, the circumstances of this accident are such that the facts, without the evidence of the first defendant, do not support a finding of negligence. The plaintiff’s evidence, which I accept, is that she was driving slowly and cautiously but nevertheless skidded off the road. The first defendant’s vehicle skidded off the road in much the same place. There is no credible evidence that he was travelling at an excessive speed. Rather, the evidence to which I have already referred suggests that his speed was quite slow at the time of the skid. Whilst events were fresh in the plaintiff’s memory she attributed the accident to the condition of the road. Plainly, it presented considerable hazard which cautious driving could not always overcome.
The plaintiff’s case does not improve when the first defendant’s evidence is considered. It is reasonable to conclude that both vehicles probably would have negotiated the dangerous section of road successfully had neither driver braked. But the plaintiff felt the need to do so because of her concern with the condition of the road. The first defendant had even more reason to brake. He, quite properly, desired to render assistance to the plaintiff. I consider it probable that his braking was motivated also by caution as a result of his seeing a car which had run off a wet road. By the time the first defendant’s vehicle started to skid, its speed was most probably appreciably slower than that of the plaintiff’s vehicle when it commenced its skid. The first defendant had successfully negotiated the unsealed section of the road once and had travelled over nearly the whole length of the unsealed section of road without mishap when the accident occurred. He had also reduced his speed to take into account his appreciation of the changed road conditions.
For the above reasons, I find that the plaintiff has failed to establish that the first defendant did not exercise the degree of care and skill which could reasonably be expected of an experienced and competent driver. Liability has not been established.”
The major thrust of the appellant’s challenge to His Honour’s approach is contained in this passage from counsel’s written outline:
“There is much force in the submission of the appellant’s counsel at trial that ‘([i]t is just another case of one vehicle running into the back of another’ and that ‘either the first defendant’s speed was too fast or he was not keeping a proper lookout’ (reasons [14]). Looked at somewhat more clinically, the exercise of appropriate caution on the part of the first defendant, upon observing the disabled Ford ahead of him, demanded that he adopt one of two alternatives: either bring his vehicle to a halt well short of and behind the Ford and from there approach the Ford on foot to lend assistance (particularly where there was more than adequate time and distance to enable that to occur); or proceed past the Ford without applying the brakes at all (in which event, the finding is, he would have safely reached the bitumen only ten metres or thereabouts to the north-west of the Ford).”
The two alternatives proposed – that the first defendant should have stopped short of the position of the appellant’s stationary vehicle, or alternatively passed beyond without braking – were scenarios borne of what the respondent’s counsel termed “criticisms … sharpened by well focused hindsight” (cf. Vairy v Wyong Shire Council (2005) 80 ALJR 1, 27-8). And they depended heavily on the premise that the first defendant, when he saw the appellant’s vehicle off the road, should have appreciated that it got there because the appellant had braked on the slippery surface and skidded. That premise was not supported by anything in the evidence.
A driver may, without negligence, lose control of the vehicle on a slippery road. That is obvious. This Judge found that the first defendant acted reasonably and prudently in the handling of his vehicle. As to speed, the Judge made no finding it was excessive, and what he said indicated his view that the speed of the first defendant’s vehicle was quite reasonable. As to look out, the first defendant had at relevant times a continuing observation of the plaintiff’s vehicle.
The complaint was made that the learned Judge had not sufficiently dealt with the alternative scenarios put for the plaintiff. The Judge set out in his reasons the contentions of the plaintiff’s counsel as to how the first defendant should have proceeded. His finding that the first defendant exercised the care and skill reasonably expected of a competent and experienced driver in the way he drove implicitly rejected those contended-for alternatives as the only possible ways of proceeding with proper care. The alternatives then became irrelevant. It was not incumbent on him to analyse them in greater depth.
His Honour was entitled to find the appellant had not established departure by the first defendant from the requisite standard of care. That approach was reasonably open, such that the appeal must be dismissed.
The appeal is dismissed, with costs to be assessed.
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