v Douglas Bruce Eather Edward

[1999] QDC 285

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
  Appeal No. 1 of 1999

BETWEEN:

DOUGLAS BRUCE EATHER and EDWARD CHARLES PFINGST

Appellants

AND:

ALLEN RODNEY WHITE

Respondent

REASONS FOR JUDGMENT - SKOIEN S.J.D.C.

Delivered the Nineteenth day of  November, 1999

This is an appeal from the judgment of the Magistrates Court at Warwick constituted by Mr Dean, Stipendiary Magistrate, on 7 May 1998.  He found the appellant defendants entirely responsible for the collision which was the subject of the action and gave judgment for the respondent plaintiff for $7459 with interest and costs, a total of $15,728.51.

The collision occurred on 29 September 1994 between 10 am and 11 am at the junction of Silverspur Road and Little Plains Creek Road, Wilgavale.  It is a right-angled T-junction with Silverspur Road forming the head, or cross piece, of the T.  It is a gravel road, wide enough for two lanes of traffic.  The first appellant (Pfingst) was driving a Mack prime mover on that road, heading north.  The plaintiff was driving a Subaru  utility west on Little Plains Road.  He was intending to turn left into Silverspur Road to head south.  While the evidence of Pfingst was that he intended to continue south in Silverspur Road the learned Magistrate found that he was intending to turn right into Little Plains Road to travel east.  That finding was based on a statement which Pfingst gave to the investigating policeman, Constable Waugh, and Mr. Crowley QC, counsel for the appellant pragmatically conceded that he could not challenge it.

Mr. Crowley also accepted that he could not challenge the point of impact as found by the learned Magistrate, which was on the correct side of Little Plains Road for Whites Subaru and virtually level with the roughly made table drain on the eastern side of Silverspur Road.  The damage to the Subaru was to its front end.  While the learned Magistrate did not expressly find that the prime mover was cutting the corner into Little Plains Road, his findings make that conclusion implicitly plain.  Indeed Pfingst had admitted as much to Constable Waugh.

Some photographs of the scene which were taken very soon after the date of the accident were tendered and it was accepted that they accurately depicted the scene, especially the sight line between the two vehicles as at the time of the accident.  They demonstrate that each of the vehicles would have been visible to the other driver as the two approached the junction had the drivers looked in that direction.  Despite that, White did not see the prime mover until only about a metre separated the two vehicles.  Pfingst’s evidence, which differed from what he told Constable Waugh was not accepted by the learned Magistrate.  The obvious inference from the accepted evidence is that Pfingst did not see the Subaru at any material time before the collision.

There was no evidence that the speed of either vehicle was excessive in that it would have prevented either driver having the opportunity of seeing the other vehicle in time.  Rather the trial, and the appeal, centred on lack of lookout, the path of the prime mover along the wrong side of the road, and the effect of regulation 34F of the Traffic Regulations 1962 which requires a vehicle on the terminating road of a T-junction to give way to traffic on the other roads.
           The learned Magistrate found Pfingst to be guilty of negligence and while he did not expressly say so, in the context of his reasons that was on the basis of driving on the wrong side of the road.  To that must be added the obvious inference that he did not consider Pfingst to have kept a proper lookout.

Mr Crowley did not contest the finding of Pfingst’s negligence.  Rather, he argued that the learned Magistrate was wrong in finding White was not negligent.  On this point the learned Magistrate said:

“Was there negligence on Mr White’s part contributing to the collision.  On balance I find not.

I do not accept that Mr Eather’s photographs were taken on the day he says he took them and I do consider the corner was clear of vegetation, and therefore less blind, than Mr White conceded.  He may not have been keeping a proper lookout perhaps.

Nevertheless in the circumstances that emerged, what could Mr White have done?  If he had seen, for example, a cloud of dust or some fleeting glimpse of a large truck through the trees, would that have told him that there was a truck approaching the intersection or the junction, on its wrong side of the road?  A road which, as exhibit 9 seems to me to confirm, is a fairly wide road and effectively a two lane road at that point.

I accept that Mr White approached the intersection with reasonable caution in that he was slowing down, preparing to make his turn.

In all those circumstances, and on balance and the whole of the evidence once more, I do not find negligence on Mr White’s part contributing to the cause of the collision.”

I read that passage as an acceptance by the learned Magistrate that White should have seen the prime mover.  That would accord with logic and common sense because it was a large vehicle approaching at a speed not found to be excessive and not behind any screen of vegetation which would have obscured it.  What the learned Magistrate has clearly done in his reasons is to find that there was a lack of lookout by White but that it was not causative of the collision.

On the very findings of fact made by the learned Magistrate I regret to say that I cannot agree that White was guiltless of contributory negligence.

White had the statutory duty to give way to vehicles travelling either way on Silverspur Road.  He said he looked right and left but did not see the prime mover.  Given his duty to give way to any vehicle on Silverspur Road, it was his duty to look carefully.  Had he done so he would have seen the prime mover and as it was the only other vehicle in the area he, as a reasonable driver, should have kept it under observation so as to be able to determine what his actions should be to give way to it.  Had he exercised such care he might well have been able to slow further (his speed at all times was moderate) or even to stop once he recognised that the prime mover was on the wrong side of the road.  His failure to do these things was negligent.

However the greater share of responsibility for the collision must fall on Pfingst for his failure to keep a proper lookout and his failure to drive on the correct side of Silverspur Road.  If intending to turn to the right his proper course was to remain on his correct side of the road until he was able to make the turn and to pass safely across the front of the Subaru.  His conduct in driving his large vehicle completely on the wrong side of the road and without keeping a proper lookout for conflicting traffic was severely negligent.

Conclusion

The appeal is allowed and the judgment of the learned Magistrate is set aside.  In lieu the plaintiff is entitled to judgment for 75% of his claim and the defendants for 25% of their counterclaim.  I am not aware of the correct figures for the two competing claims, nor was the rate of interest to be allowed placed before me.  I propose therefore to adjourn the further hearing of the appeal.