Wardle v Fowler No. Scciv-02-345

WARDLE v FOWLER
[2002] SASC 380
Full Court: Doyle CJ, Mullighan and Besanko JJ

DOYLE CJ: I would allow the appeal. I agree with the orders proposed by Besanko J and with the reasons that he gives. There is nothing that I wish to add to those reasons.
MULLIGHAN J I agree.
BESANKO J This is an appeal from a decision of a Judge of the District Court. The plaintiff in the action is the appellant before this Court. The plaintiff brought an action in the District Court claiming damages for the injury, loss and damage he sustained as a result of an accident on 26 January 1996.
The plaintiff was riding a Ducati 900 sports motor cycle in a southerly direction along Main Road No 96 at Cudlee Creek in the State of South Australia. The defendant was driving a Datsun truck in a northerly direction along the same road. A collision occurred between the plaintiff and the defendant’s truck in the vicinity of what was described by the Judge as a crest coupled with a bend in the roadway. The plaintiff’s right hand and right leg came into contact with part of the defendant’s truck. The Judge appears to have accepted that the collision was properly described as a “glancing blow”. The plaintiff did not fall from his motor cycle as a result of the collision.
The action came before the Judge for a determination of liability only. The main issue before the Judge was the location of the point of impact, and, in particular, how far the point of impact was south of the crest, and whether it was on, or to the east, or to the west, of the centre lines of the roadway. At the point at which the collision occurred there were double lines in the centre of the roadway indicating that overtaking was prohibited.
The Judge found that at the point of impact the plaintiff’s motor cycle was on its correct side of the roadway but close to the centre lines of the roadway. The Judge found that at the time of the collision the defendant’s truck was on the incorrect side of the centre lines of the roadway for its direction of travel.
The Judge found the defendant’s driving to be the substantial cause of the collision and the plaintiff’s driving a contributing cause. He apportioned responsibility for the accident 80 per cent to the defendant and 20 per cent to the plaintiff.
The plaintiff appeals against the finding of contributory negligence. In the alternative, the plaintiff challenges the apportionment of 20 per cent and submits that it was erroneous. It is important to note that on the appeal the plaintiff does not challenge any of the Judge’s findings of primary fact.
The Judge’s Findings
After an extensive review of the evidence and a statement of his findings as to the primary facts, the Judge expressed his conclusions as follows:
“For the above reasons, I am satisfied, and find, that, at the point of impact, the plaintiff’s motorcycle was close to, but on its correct, or eastern, side of the centre lines of the roadway and that the defendant’s truck was at that time partially on the incorrect side of the centre lines of the roadway for its direction of travel.
Having so found, it does not follow that the defendant was entirely responsible for the accident and, indeed, I find that the plaintiff contributed to its occurrence. There is ample evidence that he was an experienced bike rider, that the crest and bend were dangerous to negotiate and that the plaintiff well knew that. By any measure, his approach to it was negligent in that, either through speed or carelessness, he failed to keep his motorcycle as close as possible to the left‑hand kerb. Instead, he chose to negotiate the bend in a way which meant his motorcycle was very close to the centre lines of the roadway as he passed over and down the crest and turned left, in circumstances where, for most of that passage, he had no adequate view of oncoming traffic. Notwithstanding that the defendant was clearly infringing the law in crossing the centre lines, I am satisfied the plaintiff, well knowing the risks of that crest and bend, should have had some regard to the possibility that oncoming vehicles might, as it were, cut that corner or project in part over the centre lines. In positioning himself as he did, he courted that risk and it materialised.
The defendant’s manner of driving was, however, the substantial cause of the accident. He, too, knew the roadway and must have appreciated the high degree of risk he undertook in allowing his vehicle to cross the centre lines at that particular point.
I find that the plaintiff contributed to his loss to the extent of 20 per cent.”
The Judge considered that the plaintiff’s approach to the bend was negligent in that he did not keep his motor cycle as close as possible to the left hand kerb. This failure by the plaintiff was the result of either excessive speed or carelessness. The plaintiff’s motor cycle was very close to the centre lines of the roadway as he passed over and down the crest and turned left and for the most part this was at a time when he had no adequate view of oncoming traffic. The plaintiff ought to have had some regard to the possibility that oncoming traffic might cut the corner or project in part over the centre of the roadway.
The Arguments on Appeal
It was accepted by the plaintiff that the Judge was right to find that he was aware that the bend combined with the crest made the bend unusual and dangerous.
However, the plaintiff emphasised the fact that the Judge found that he had approached the bend along a straight stretch of road at about 80 kph, that he had positioned himself to the right of the eastern carriageway in which he was travelling in order to take the bend and that he had then slowed down to about 35 to 40 kph. The plaintiff’s speed of 35–40 kph was at or only slightly above the speed advisory sign for the bend. The plaintiff was confronted with the defendant’s truck across the centre lines. The plaintiff correctly pointed out that there was no suggestion at trial that he had departed from a reasonable standard of care in anything he did after he saw the defendant’s truck.
The plaintiff also correctly pointed out that nothing was put to the plaintiff in cross examination to the effect that even assuming he was on the correct side of the roadway as he approached the bend, he was, nevertheless, careless in his approach to the bend. However, I do not think this point advances the plaintiff’s arguments. If the facts as found by the Judge give rise to a finding of contributory negligence, then the Judge did not err in proceeding to determine the questions of negligence and contributory negligence in accordance with those facts.
The Judge did not make a precise finding as to the plaintiff’s position on the eastern carriageway at the point of impact. Counsel for the plaintiff submitted that it was possible on the evidence to identify the plaintiff’s position on the carriageway at the point of impact and he referred the Court to the Judge’s finding as to the location of the commencement of the blood trail and certain evidence from Mr H Aust, an engineer, who gave evidence before the Judge. However, I agree with the submission of counsel for the respondent that the commencement of the blood trail is not necessarily the location of the point of impact and that the evidence was not sufficiently clear to enable a conclusion to be drawn as to the precise location of the point of impact. In those circumstances the Judge did not err in expressing his finding in no more precise terms than that the plaintiff was very close to the centrelines at the point of impact.
The plaintiff submitted that the Judge erred in finding that he might have been travelling at an excessive speed as he approached the bend. I think such a challenge involves a misunderstanding of the approach taken by the Judge. The Judge found that the plaintiff did not keep his motorcycle as near as practicable to the left boundary of the carriageway. At that time, the obligation to do so was contained in s 54(1)(b) of the Road Traffic Act. The plaintiff submitted that there was no evidence before the Judge that he was not travelling as near as practicable to the left boundary of the carriageway. I reject that submission. The plaintiff himself said that he moved to the right of the eastern carriageway because it was standard practice, “the fact of the motorcycle leaning over, it’s wider, just gives you more space”. Clearly the plaintiff could have travelled closer to the left boundary of the eastern carriageway and his particular reason for failing to do so (whether it be excessive speed or carelessness) is largely immaterial.
In essence, the main argument put by the plaintiff on the appeal was that the Judge erred in finding that he should have had regard to the possibility of an approaching vehicle crossing the centre lines. The plaintiff submitted that the risk of this occurring was not inherent in the bend (even though the plaintiff knew the bend to be dangerous) but was a risk inherent in any blind corner or bend.
The plaintiff submitted that logically the risk could not be limited to a vehicle being partly on the incorrect side of the road but would include a vehicle being wholly on the incorrect side of the road. If the Judge is correct (argued the plaintiff) the plaintiff would have been obliged to slow right down or, indeed, stop, to respond appropriately to the risk of a vehicle being wholly on the incorrect side of the road. I do not accept this particular submission. The plaintiff’s obligation was to exercise reasonable care in the circumstances. If the defendant had been wholly on the incorrect side of the roadway and the plaintiff had been travelling as close as practicable to the left of the eastern carriageway and a collision had occurred, the plaintiff would not have been guilty of any negligence.
I return to the plaintiff’s main argument. The plaintiff submitted that the Judge misapplied the concept of defensive driving (Noble v Edwards (1971) 1 SASR 155 and the Note – Stoeckel v Harpas). The plaintiff submitted that the risk that the Judge found he had failed to take into account was a theoretical one. It was an “unlikely and unexpected contingency” to use the words of the plaintiff’s counsel.
The plaintiff submitted that the question whether he should have adverted to the possibility of a vehicle being partly on the incorrect side of the road was a question of fact to be determined in all the circumstances (Sibley v Kais (1967) 118 CLR 424 at 427). I agree with that submission, but I think there are circumstances in this case that lead to the conclusion that the plaintiff should have adverted to the possibility and acted accordingly. These circumstances are as follows:
1The accident occurred on a blind corner on a country road.
2The crest and the bend were known to the plaintiff to be unusual and dangerous. Although he did not explain in what way he considered the crest and bend to be dangerous, it is clear that he considered that the bend needed to be approached with care.
3The eastern and western carriageways on that part of the roadway where the accident occurred were narrow.
4The particular risk of a driver travelling in the opposite direction cutting the corner or travelling partly onto the wrong side of the roadway in the course of negotiating a bend is a well known risk, particularly on a country road.
The plaintiff further submitted that even if the above arguments are not accepted, the defendant’s conduct in this case was so dangerous and foolhardy that it was not a risk that the plaintiff should have considered and responded to. The defendant’s conduct was said to be so dangerous and foolhardy because he was on the incorrect side of the road at a blind bend “to a material and substantial extent”. It seems to me that underlying this submission (at least in part) is a submission about causation. I reject the submission because I do not think the factual basis for it is made out. The Judge’s finding that the plaintiff’s motor cycle was very close to the centre lines of the roadway and the nature of the impact between the plaintiff and the defendant’s truck (ie a glancing blow) means that the defendant’s truck was not on the incorrect side of the roadway to a material and substantial extent.
For these reasons, I reject the plaintiff’s submission that the Judge erred in finding him guilty of contributory negligence.
In the alternative, the plaintiff submitted that the Judge erred in his apportionment of 20 per cent to the plaintiff.
It is well established that the decision of a trial Judge on a question of apportionment will not be lightly reviewed. If all that is involved is a difference of opinion by a different mind then an appeal court will not interfere with an apportionment (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492). As the Chief Justice of this Court said in Knowles v Dubla (1997) 25 MVR 134):
“Precise percentages could be debated endlessly, but that is not the purpose of such appeals.”
Such an approach is not applied mechanically. It is not the case that an appeal court will only intervene if it is persuaded that the trial Judge is wrong by a certain amount. The question is whether the difference is a mere difference of opinion by a different mind or whether the appeal court concludes that the trial Judge’s apportionment is outside the range reasonably open on the evidence.
In my respectful opinion the amount apportioned to the plaintiff in this case is outside the range reasonably open on the evidence.
The plaintiff was riding his motorcycle on the correct side of the road at a speed of approximately 35 – 40 kph. His culpability consisted of a failure to travel probably about 2 or 3 feet to the left of the position he in fact occupied. There is no suggestion he failed to do anything he ought to have done after he saw the defendant’s truck. By comparison, the defendant’s culpability was of a very high order. He was driving a truck around a blind corner partly on the incorrect side of the road. In my opinion, the plaintiff should not have been held responsible to any greater extent than 10 per cent. Although the facts of the case are not identical, the recent decision of this Court in Weinert v Schmidt [2002] SASC 340 supports the conclusion that the appropriate apportionment in this case is 90 per cent to the defendant and 10 per cent to the plaintiff.
Conclusion
I would allow the appeal. I would set aside the judgment of the Judge and substitute therefor a judgment that the plaintiff recover from the defendant ninety per cent (90%) of his damages to be assessed.

[2002] SASC 380

26 November 2002