Burns v Lipman

On 18th October 1970 a collision occurred on the West Tamar Highway twenty miles from Launceston between a Morris Oxford car driven by the appellant defendant and a Toyota Crown Station Wagon driven by the respondent plaintiff. The respondent claimed damages for personal injuries suffered by him, alleging that the appellant was negligent. The appellant denied negligence and counterclaimed for damages for personal injuries suffered by her in the accident.

The action came on for hearing at Launceston before Crawford J. who, on 3rd May 1973, found that the appellant was not negligent but that the respondent was. He dismissed the action, and on the counterclaim awarded the appellant $200 damages.

The respondent appealed to the Full Court of the Supreme Court, which allowed the appeal, set aside the verdict of Crawford J. in favour of the appellant, and ordered that the respondent recover against the appellant twenty-five per cent of his damages to be assessed and further ordered that the assessment of the respondent's damages be remitted to Crawford J.

From this judgment the appellant appeals to this Court. The question arises whether any appeal lay as of right. Damages have not been finally assessed, nor was final judgment entered. The Full Court's order is thus interlocutory.

It is stated in the affidavit accompanying the notice of appeal that the judgment of the Full Court was in respect of a sum to or for the value of $3,000 or upwards; that is to say that the damages to be awarded to the respondent if successful would be in that sum or upwards - and this is not disputed. In the circumstances, since after an award of damages and an award of twenty-five per cent thereof an appeal could be brought to this Court as of right, and having regard to the matters raised in the arguments, leave to appeal is granted.

The respondent suffered his injuries when the front nearside of the Morris Oxford driven by the appellant collided with the offside of the Toyota Station Wagon driven by the respondent. Both vehicles were travelling south towards Launceston. The road at the point of collision was almost level. It had a bitumen surface approximately eighteen ft wide with a broken single white line down the centre. The day was clear and the road was dry. There was good visibility even though there was a gradual curve to the road for one hundred yards back from the point of collision. On the western side of the road at or very near the point of collision there was a house on its block of land. From the road to the land there were two entrances about eighty ft apart which gave access through cuttings in a two foot high bank which ran along the gravelled side of the road.

The respondent intended to turn into the driveway entrance nearer to Launceston, that is to say the second of the two entrances in the direction in which he was travelling. By reason of his injuries, he could give no evidence of what happened over the two hundred ft of his travel along the road before the collision or into which driveway he had commenced to turn. Crawford J. concluded it was the second driveway into which the respondent commenced to turn. The respondent had been driving along the highway at an average speed of forty to forty-five miles per hour. He commenced to slow down, and changed from third to second gear. He slowed down to fifteen to twenty miles per hour when he was still some distance away from the entrance to the house on the right-hand side of the road and he continued at that speed for some time. He did not observe the appellant's car behind him.

The appellant became aware of the respondent's car in front of her and that it gradually slowed down from forty miles per hour; she had been travelling at about forty-five miles per hour. She drew close to the Toyota car and continued at a slower speed behind it for some time. She saw no signal indicating that the Toyota was intending to turn right. She commenced to overtake the respondent's vehicle and when the front of her car was about level with the back of the respondent's Toyota the Toyota moved over in front of her and commenced to make a right-hand turn. She veered to the right but the collision occurred. She did not sound a horn to give a warning that she was overtaking - and indeed could not, because the horn of the Morris was broken.

The learned judge had a view of the scene of the collision, the parties having agreed he could take into consideration as evidence in the case what he observed at and around the place of collision. Photographs were put in in evidence of the scene, from which it appears that there were several houses on the right-hand side of the road as the cars proceeded south and some also on the left-hand side of the road, although those on the right-hand side were closer to the approaching cars than those on the left-hand side.

Crawford J. accepted the evidence that no signal was given of the proposed turn to the right. He also accepted the relative positions of the cars which we have already described as at the time the respondent made his turn, and he held that when the Toyota was turning to the right across the path of the Morris there was nothing the appellant could have done to avoid a collision.

The substantial question which the judge had to decide was whether the appellant was guilty of some negligence in attempting to pass the Toyota without having given warning by sounding the horn that she was intending to pass. He said that in his experience it was not the usual thing on Tasmanian roads for the horn to be sounded on overtaking in circumstances such as were before him and that a reasonably prudent driver in the appellant's position was entitled to overtake when no signal was given by the overtaken vehicle of any intention to turn. He found that the appellant could reasonably expect, though not with absolute certainty, that a driver who was considering turning to the right would signal his intention to do so and would look into his rear vision mirror or to the rear to ascertain whether it was safe for him to turn to the right, particularly towards a private drive. He found that, in doing what she did, the appellant did not fall short of the standards of care of a reasonably prudent driver.

In explaining his reasons for judgment, his Honour said that he could take judicial notice of the habits of motorists in relation to the sounding of the horn when passing or commencing to pass another vehicle. We would point out that, whilst a juryman or a judge may bring to the resolution of a case his knowledge of what usually occurs on a highway, that knowledge is not properly to be regarded as judicial notice. Its use in this case was not appropriate to the determination of whether or not the appellant was negligent, but rather to the question of what the respondent was entitled in circumstances to expect of an overtaking motorist. The respondent could not use the absence of a warning as a justification for not having looked to his rear and for not signalling before making his turn to the right.

In the Full Court a contrary view as to the negligence was taken. It was found that in all the circumstances the sounding of a horn was a precaution which a reasonable and prudent driver would have taken before attempting to pass the respondent's vehicle. The particular circumstance was the gradual slowing down of the Toyota from thirty-five or forty miles per hour to twenty miles per hour, over a distance of some two hundred yards for no apparent reason. It was held that this circumstance should have alerted the appellant to the possibility that her presence was unknown to the respondent, and that it was sufficient to give rise to a query in the mind of a reasonable motorist as to the reason for it.

The Full Court took the view that there being no roads or driveways running along the highway to the left at the place where the collision occurred, and houses only on the right-hand side of the road, the appellant when she observed the gradual slowing down of the Toyota for no apparent reason, was bound to have considered the possibility that the respondent did not observe the approach of the Morris Oxford, and the further possibility that the respondent might turn to the right in order to enter a driveway of one of the houses on the right-hand side of the road. Accordingly, in the view of the Full Court, it was negligent on the part of the appellant to have attempted to pass the Toyota when she had no means of warning the respondent of the approach of her car. The Full Court thought the appellant was not entitled to assume that the respondent had seen her or become aware of the presence of the Morris Oxford car.

As counsel for the respondent agreed it is essential, in order to sustain the conclusion of the Full Court, to accept the view that the appellant was bound to observe the existence of the houses on the right-hand side of the road with entry to driveways and to have connected the deceleration of the Toyota with the possible intention of entering one of those driveways.

In our opinion the question whether or not there was negligence in this respect was a question of fact not involving any principle of law, other of course than that of the onus of proof. That question was not one upon which such a certain conclusion could be reached that a contrary conclusion could confidently be described as a wrong conclusion. Failure to give warning in circumstances before attempting to pass might or might not have been held by the trial judge to be negligence. The conclusion of the trial judge that there was no negligence was clearly not unreasonable. He applied his mind to the evidence in a proper way and reached his own conclusion in what he himself described as a difficult case. We have already referred to his description of the knowledge he had of what usually occurs on the road but though that description was not accurate his use of that knowledge was not improper in the circumstances. In our opinion no contrary conclusion could be reached with such a degree of certainty that the conclusion of the trial judge could be described as wrong. That being so his conclusion should have been allowed to stand.

The question of fact could not be determined by the application of some general rule that a warning must be given by an overtaking vehicle. Whether a warning is called for depends on the particular circumstances of the case. Further it may well be thought that it is expecting too much of the motorist engaged in controlling a car to analyse the possible reasons for the slowing down of the vehicle being approached or to expect the motorist to observe houses and entrances leading off the highway. In this case it may be doubtful whether the appellant could be expected to conclude, as the Full Court apparently did, that in the vicinity there were houses only on the right-hand side of the road. What could fairly be expected of the appellant and what she could fairly expect of the respondent in all the circumstances of this case were matters of fact upon which differing opinions could be held without either opinion being wrong.

The various circumstances mentioned by the Full Court do not in our opinion justify the conclusion that the refusal of the trial judge to find negligence in the appellant was wrong.

The appeal must therefore be allowed with costs, the order of the Full Court set aside and the verdict and judgment of the trial court restored.