Weeding v Natolie (No 2)

[1990] TASSC 149

Serial No B72/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Weeding v Natolie (No 2) [1990] TASSC 149; B72/1990

PARTIES:  WEEDING, Michelle
  v
  NATOLI, Mark

FILE NO/S:  LCA 68/1990
DELIVERED ON:  1 November 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B72/1990
Number of paragraphs:  16

Serial No B72/1990
List "B"
File No LCA 68/1990

MICHELLE WEEDING v MARK NATOLI (NO 2)

REASONS FOR JUDGMENT  ZEEMAN J

1 November 1990

1. The appellant, who was the defendant in the court below, appeals against the decision of a Commissioner of the Court of Requests in an action concerning damage sustained by two motor vehicles as the result of a collision between those vehicles. The vehicles were driven by the appellant and the respondent respectively in Argyle Street, Hobart. Although each of the respondent's claim and the appellant's counterclaim involved a relatively small sum of money, this is the second occasion upon which this matter is before this court. The appellant previously successfully appealed against the decision of another commissioner. The present appeal is from the decision given on the retrial of the action. Upon the retrial the learned commissioner apportioned liability as to 85% against the appellant and as to 15% against the respondent.

1. The undisputed evidence was that the collision between the two vehicles occurred at about 9.30pm on 18 August 1989. The respondent was driving his motor vehicle along New Town Road in a general southerly direction towards that road's junction with Argyle Street. When his vehicle reached Argyle Street, it entered what has been described as a slip road and moved into Argyle Street. As the respondent's vehicle entered Argyle Street, the appellant's vehicle was either in the process of reversing, or had reversed, from a driveway on the respondent's left as his vehicle progressed along Argyle Street. This driveway was situated some 50 metres or so from the junction of Argyle Street and New Town Road. The two vehicles came into collision at a point on Argyle Street near the driveway. There was a dispute on the evidence as to the events which preceded that collision.

1. The respondent's evidence was to the effect that when his vehicle entered Argyle Street, the appellant's vehicle was slowly reversing out of the driveway. He said that at the time that he first saw the appellant's vehicle its rear wheels were in the gutter and it was continuing to reverse. The respondent determined that he would pass the appellant's vehicle on the inside, ie around the front of the appellant's vehicle. He said that he was quite confident that it was safe to do so, giving as his reason, "Yes, she had gone, or she was going across the road." Later he said that he assumed that the appellant would keep reversing. He said, "She only had to keep going back and I could have gone through quite easily." In fact, the respondent's assumption that the appellant's vehicle would continue moving backwards across Argyle Street was incorrect. The rear of her vehicle having reached a point close to the centre of the road, it then moved forward in a manoeuvre indicating that she intended to drive north along Argyle Street. As a result it became impossible for the respondent's vehicle to pass the appellant's vehicle on the inside. The respondent braked, as a result of which his vehicle skidded and collided with the appellant's vehicle.

1. The appellant's version was somewhat different. She said that she was reversing her vehicle out of a driveway at 411 Argyle Street. She stopped her vehicle at the entrance to the street. Having checked that the road was clear to the left and right, she reversed her vehicle out on to Argyle Street at an angle of about 60 degrees. She said that she reversed her vehicle into the centre of the road to a point where her left hand rear wheel was over the centre line, changed gears, and that she then saw the respondent's vehicle coming around the corner from New Town Road. She said that it appeared to her as though the respondent was intending to drive around the back of her vehicle, that he then changed his mind "as though he was going to come up the inside"; and that his vehicle then went into a skid colliding with the left hand rear of her vehicle.

1. It is apparent from this recital of the evidence that there was a crucial conflict. On the appellant's version, the road was clear when she reversed her vehicle to the centre of Argyle Street. On the respondent's version, his vehicle would have been within the view of the appellant before any significant portion of the appellant's vehicle entered the travelled portion of Argyle Street.

1. In dealing with this matter, it was incumbent upon the learned commissioner to find the relevant facts, and having found those, to find whether either or both of the appellant and the respondent were negligent. If he found that each of them was negligent, he was required to apportion liability between them.

1. I have great difficulty in ascertaining what facts were found by the learned commissioner. In particular, he made no findings of fact as to the location on the roadway of the appellant's vehicle at the time that it first became capable of being seen by the respondent. That was a critical matter. In the course of giving his reasons for judgment the learned commissioner said:

"Now I am not faced with a situation here where I have got to determine who is telling the truth and who is not arising out of a conflict of narrations between the parties as to the facts of the situation. I am satisfied that both the Plaintiff and the Defendant are quite honest and they've really done their best to give me an accurate account as they recall it of what occurred."

1. If by that observation the learned commissioner was intending to express the view that there was no conflict between the parties as to any relevant facts, then plainly he was wrong. He was perfectly entitled to conclude that each of the parties had given evidence honestly. He was entitled to conclude that each party had given a version of the facts which that party believed to be true. It did not follow from that that the evidence of each was to be accepted without reservation. In fact, there existing a critical conflict in the evidence as to the facts, the learned commissioner's duty was to find what the facts were.

1. I am unable to discern from the learned commissioner's reasons for his decision that he in any way resolved this conflict either directly or inferentially by way of findings on matters of credit. I would therefore uphold this appeal on the first ground which complains of the learned commissioner failing to make findings of fact as to the cause of the collision. Such findings had to be made. On the appellant's version of the facts it might be said that the collision was wholly or largely the fault of the respondent. On the respondent's version it could more readily be said that the appellant very significantly contributed towards the collision.

1. However, I would also uphold the appeal on a further ground, and that is upon the basis that the learned commissioner erred in his approach to apportionment. The learned commissioner, although attaching 85% of the blame for the collision to the appellant, made no express finding that the appellant had been negligent. In dealing with the question of apportionment, the learned commissioner said this:

"Well, as I have said, I feel a great sympathy for the Defendant. Well I feel, in my view, I have no doubt that I shall feel greater sympathy for the Plaintiff, Mr Natoli. He came around that corner not at an excessive speed. He denies he went over the centre line as he came around the corner. Miss Weeding and the young man, Mr Nicholls (sic) Junior, they say that he did, he took a long slow 's', as it was adequately described, which certainly accords with the Plaintiff's description of the predicament in which he found himself. His decision whether he – that he thought for a moment he would be able to get around the front, his decision to try and do that, whether he went over the centre line to any degree or not is nothing to the point, except the fact that it does indicate that that was his state of mind.

It is a question then of whether in making that assumption he was negligent. I think that one would have to say that he was unwise to a degree. Perhaps the 'unwisdom' of inexperience. He's a very young man. I wasn't told his age. He was obviously a very young man and not had many years of driving experience. But it is a question of to what degree?

I think at the end of the day I must come to the conclusion that he was placed in that position by Miss Weeding. She didn't have much choice. It's a very difficult drive, a Hydro pole on one side and a 'No Standing' sign on the other and the only way to get the car out of there was to back it out. There was no doubt about that. She didn't have much choice, but nevertheless the topographical features of the whole street and of the drive, the whole situation is such that every time somebody drives – backs out of that driveway they create a risk. It is because they create the risk that they must create the greater share of the blame, if a driver coming around that corner and driving reasonably, and I am satisfied the Plaintiff was driving reasonably, comes into collision with the vehicle. I think the fact that he made that assumption, whilst it amounts to negligence – he ought to have stopped, but perhaps I'm sure a more experienced driver would have stopped and waited to see what was going to happen, but the fact that he didn't arises from the fact, really –– it would be very easy for me to be able to say that really she shouldn't have been backing as he was, but of course she had no choice. But the fact that that drive is so situated and so narrow that one can't turn sharply from it and because of the Hydro pole and because of all the factors, Mr Natoli can't be held to blame for that. If any blame is to fall because of those factors it is on the person who uses that drive. And that is why that in apportioning the blame as between the two the much larger proportion of blame must rest on Miss Weeding. I say this not with a view to criticising her, or to say – to suggest that she was inept in any way as the driver of the motor vehicle. It is the unsatisfactory, as I say, the unsatisfactory – I use the word – topography, perhaps it is not quite the right word, but I think my meaning is clear – the arrangement of the road, the drive, the poles and everything else. And, therefore, I think that whilst neither party was – because a personal inadequacy is a motor driver to blame? It's just the nature of the drive, the nature of all the circumstances more than blame on any party that led to the accident.

True it is the Plaintiff must accept some of the blame, because of that moment of indecision – not so much a moment of indecision, rather that momentary assumption – 'She will keep going, so I will go around the front.' And then she moved forward. He ought to have stopped, but he didn't.

So I think that the proper apportionment is that the Plaintiff succeeds as to eighty–five per cent of the claim and as to the counter claim the Defendant succeeds as to fifteen per cent only. So I will apportion blame accordingly. The Plaintiff succeeds on the claim to the extent of eighty–five per cent. The Defendant succeeds on the counter claim to the extent of fifteen per cent." (My emphasis)

1. As to the respective duties of drivers in the situation of the appellant and the respondent, I would respectfully adopt what Wright J said in Weeding v Natoli No B19/1990 at pp3–4. It seems to me that the approach adopted by the learned commissioner was to mitigate the extent to which the respondent was held liable because of physical characteristics of the area where the collision occurred. One might be pardoned for thinking that he attributed significant liability to the driveway and made the appellant vicariously responsible for that. The physical characteristics of the area were relevant to the learned commissioner's consideration of the matter. However, having borne in mind those characteristics, it was his duty as to each party to consider whether that party had been negligent. My impression is that in fact he did not find the appellant to have been personally negligent at all.

1. Prima facie, actions ought to be determined in accordance with the pleadings. The pleadings in the present case alleged particulars of negligence against each of the appellant and the respondent. After making the necessary findings of fact, it was the duty of the commissioner to consider whether any one or more of the particulars of negligence alleged against the appellant and the respondent had been made out. The commissioner did not do this in express terms. Largely he failed to do it by implication. If he made any finding of negligence against the appellant it was that she was negligent in using the driveway but that had never been alleged as a particular of negligence.

1. The appeal will be upheld. My prima facie view is that there is no alternative to remitting the matter for retrial before another commissioner. It is lamentable that it should become necessary to have yet a third trial of the action. When the previous appeal was determined by Wright J, his Honour had occasion to make the following observations:

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."

1. It is regrettable that on the retrial and despite those observations the learned commissioner fell into the same error as that referred to by his Honour. However, before I make any formal order for a new trial, I will hear the parties.