Weeding v Natoli

[1990] TASSC 96

Serial No B19/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Weeding v Natoli [1990] TASSC 96; B19/1990

PARTIES:  WEEDING, Michelle
  v
  NATOLI, Mark

FILE NO/S:  LCA 1/1990
DELIVERED ON:  16 May 1990
JUDGMENT OF:  Wright J

Judgment Number:  B19/1990
Number of paragraphs:  18

Serial No B19/1990
List "B"
File No LCA 1/1990

MICHELLE WEEDING v MARK NATOLI

REASONS FOR JUDGMENT  WRIGHT J

16 May 1990

1. This is an appeal against a decision of a Commissioner of the Court of Requests delivered in Hobart on 20 December 1989. The action before him concerned a collision between two motor vehicles on Argyle Street, Hobart. He apportioned liability as to 65% against the defendant and as to 35% against the plaintiff. The defendant appeals and the plaintiff cross–appeals against that assessment of contributory negligence.

1. Both vehicles were damaged in the collision and there was a claim and a counter claim. Damages were agreed before trial. It is therefore only the question of negligence and contributory negligence that must be considered. There was a certain amount of conflict between the evidence given by various witnesses and the appellant's principal complaint is that the learned Commissioner did not make findings resolving this conflict on critical issues. As demonstrated by Jones v Hyde (1989) 85 ALR p23, it is not always necessary that explicit findings of fact be made if it is possible to discern from the reasons given, the true basis of a judicial decision and to infer the essential determinations of fact which have been made in the process. I shall therefore examine the evidence and the learned Commissioner's reasons, to ascertain whether there is sufficient material before me on this appeal to resolve the present litigation.

1. The collision between the two vehicles occurred on 18 August 1989 at approximately 9.30pm when the plaintiff was driving his motor vehicle along New Town Road in a general southerly direction towards the city. At the point where New Town Road bifurcates and its eastern limb becomes Argyle Street, he drove into Argyle Street and proceeded in a gradual up hill direction towards Stoke Street. As he entered Argyle Street, the defendant's vehicle had either reversed, or was in the process of reversing, from a driveway on the plaintiff's left hand side. This driveway was approximately 50 metres from the apex of the bend formed by Argyle Street and New Town Road. The plaintiff claimed that he was "half way through the corner" when he first saw the defendant's vehicle and it was then approaching the gutter between the footpath and the travelled portion of roadway. The defendant claimed that her vehicle was already stationary towards the centre of the roadway when the plaintiff's vehicle rounded the corner and that she was in the process of putting it into first gear preparatory to moving off. She also said that she was unable to manoeuvre out of the plaintiff's way because she did not know which way he intended to go. She says that she saw him swerve to the left and the right as he approached.

1. The plaintiff said that he applied his brakes and attempted an evasive manoeuvre but ran into the rear of the defendant's vehicle on its left hand passenger side. Both parties were in agreement that at the time of the collision, the defendant's vehicle was stationary, although there was some conflict between them as to its angle upon the roadway. The plaintiff claimed that the defendant's vehicle was at a 90^o angle, the defendant claimed that it was in the vicinity of 45^o.

1. The defendant claimed that the driveway from which she was reversing her motor vehicle was too narrow for her to make a sharp turn to her left as she reversed out, so as to bring the vehicle close to the gutter and thus into a position which would allow any vehicle coming from New Town to safely pass her on its correct side of the road as it travelled towards Hobart. Evidence supportive of each case was given by other witnesses but there is no need to deal with it in detail.

1. It is plain, I think, that in this kind of traffic situation a great deal of careful consideration must be given to any unavoidable difficulties that a reversing driver such as the defendant must or might encounter in entering upon the roadway, whilst at the same time bearing in mind that it is the prime duty of a driver undertaking this manoeuvre to give way to any traffic which may be impeded by his or her vehicle in effect forming a barrier across, or obstacle upon, the road surface. The presence of other traffic engaging the attention of the reversing driver and the driver of the oncoming vehicle, must also be considered. Furthermore, it is reasonable to expect that even on a main thoroughfare such as New Town Road and Argyle Street, any oncoming vehicle's driver would be alive to the possibility that vehicles may be entering upon the roadway from private entrances. No doubt the probability of such a manoeuvre will vary according to the time of day. This accident occurred at about 9.30pm at night and at this time the prospect that someone may reverse on to the roadway would not be as high as at, say 8.30am on a weekday morning when many people are commencing their journey to work.

1. An oncoming driver, whilst under a duty to take reasonable care in the circumstances by slowing down and keeping a watchful eye upon any emerging vehicle, will normally be entitled to proceed substantially unimpaired if having taken these precautions he finds that there is no reason to suppose that the emerging vehicle will not yield right of way. Such a driver is normally entitled to expect that the driver of an emerging vehicle will take great care not to drive across the path of a car which is already travelling along the roadway. On the other hand, once a driver has reversed his vehicle onto the roadway, exercising all due care in the process, there is inevitably a time as he changes gear and direction, when he is exposed and vulnerable and unable to take any effective action to avoid a collision if another vehicle suddenly comes around a corner or over the crest of a hill and bears down upon him. In such circumstances, the driver of the reversing vehicle can do little to avoid a collision and there is a heavy onus upon the driver of the oncoming car to slow down, swerve or stop if necessary to avoid a collision.

1. If I have thus far correctly analysed the respective obligations of drivers in these circumstances, it is plain that it is crucial to a proper determination of apportionment of blame to make findings as to the relevant speeds and manoeuvres of each vehicle. In the case presently under appeal, although there was little conflict in the evidence as to the speed of the plaintiff's motor car, there was a substantial and basic conflict between the plaintiff's witnesses and the defendant's witnesses as to the behaviour of the defendant's car after the plaintiff's car rounded the bend from New Town Road. If the defendant's vehicle was stationary upon the road at all times from the moment that the plaintiff rounded the bend until the collision occurred, it is difficult to see how she could bear the greater responsibility for the accident unless of course her vehicle was so poorly lit as to constitute an unlighted hazard on the roadway. There was however no allegation of this kind in the present case.

1. In his reasons the learned Commissioner reviewed the evidence of Mr David Collins and Mr Haller–Griffits and plainly, from the comments he made he was prepared to accept their testimony including the opinion as to the plaintiff's speed expressed by Mr Haller–Griffits. His Honour also reviewed the evidence of Mr Orr, the claims' manager of the defendant's insurers. He plainly accepted the substance of that evidence but concluded that it did not advance the defendant's case. He then referred to part of the defendant's evidence and indicated a reluctance to accept either the defendant or one of her witnesses as to their observations of the path taken by the plaintiff's vehicle. However he quite obviously did not reject the defendant's evidence in its entirety. Nor did he comment adversely upon her general credibility. His Honour then observed that "it will be apparent from all that I have written that I think both parties contributed by their lack of care to this collision." Following this his Honour made a finding that the "defendant [sic] drove too fast and made effort too late to avoid the defendant". It was agreed by counsel that this finding incorporated an error in referring firstly to the defendant rather than the plaintiff.

1. His Honour continued:

"But it was the defendant who was on the road in a position which the plaintiff needed to avoid: she was the creator of the danger. Her responsibility, I think, is therefore greater: she reversed with limited vision into a busy passage of traffic. Her position at rest on Argyle Street having reversed on to it was dangerous: ...".

1. From these passages it may be inferred that the learned Commissioner was translating his acceptance of the evidence of Mr Collins and Mr Haller–Griffits into a finding that the plaintiff maintained a speed of about 55 kilometres per hour until he was only about 10.2 metres from the point of impact.

1. However, I find it impossible to say whether his Honour's comments upon the defendant's behaviour amounted to an acceptance of her evidence or that of the plaintiff.

1. As the learned Commissioner has made neither findings of fact nor general findings of credit which would enable me to analyse the evidence of the preferred witnesses and make findings for myself, I think that this is a case in which the matter must be remitted for a new trial before another Commissioner. It is a pity that this result has occurred because the costs will inevitably outweigh damages for the losing party, but unless this course is followed, a clear basis for apportionment cannot be demonstrated by either party.

1. Accordingly, Ground 1 of the appeal must be upheld.

1. There were other grounds of appeal but in the circumstances it is unnecessary to deal with them.

1. Ground 1 of the cross–appeal is in the following terms:

"That the learned Commissioner erred in fact when he found that the plaintiff was driving too fast."

1. As I have already said, it is clear that the learned Commissioner made this finding and that he did so upon evidence which, placed at its highest, would not have justified a finding that the plaintiff was travelling at more than 60 kilometres per hour. However, in the context in which he made that finding, the learned Commissioner appeared to be criticizing the plaintiff's maintenance of a speed of about 55 kilometres per hour until a point approximately 10.2 metres from the point of collision. It is in that context that he characterised the plaintiff's speed as excessive. It may be that other people would have chosen to characterise the plaintiff's fault as a failure to stop, slow down or so manoeuvre as to avoid a collision perhaps coupled with a failure to keep a proper lookout, but alternative characterizations of the negligent conduct are immaterial so long as the nature of the lack of reasonable care is apparent. I therefore think that this ground of the cross–appeal cannot be maintained.

1. The only other ground pursued in the cross–appeal was against the apportionment made by the learned Commissioner. For reasons already discussed, this cannot be resolved until there has been a retrial. The matter is remitted to the Court of Requests for retrial before another Commissioner.