Cook v Jennings [2007] TASSC 40

Torts - Negligence - Contributory negligence - Particular cases - Road accident cases - Liability of drivers of vehicles - Collision with stationary vehicle on highway at night.

Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, applied.

Judgment Number: [2007] TASSC 40

1 In the Magistrates Court (Civil Division) the second appellant, Storm Tennant, sued the respondent, Russell Jennings, for damages arising out of a collision between the respondent's Nissan Pintara sedan and her Holden Gemini car. Her car was driven by the first appellant, Zane Cook, along the Bass Highway in a westerly direction from Ulverstone towards Penguin when its engine died. Mr Cook left it on the left side of the bitumen surface and departed the scene. It was dark. Mr Jennings was driving along the highway from behind the Gemini. He did not see that it was stationary and blocking his passage until it was too late to avoid it.

2 The learned magistrate found that the collision was caused only by the negligence of Mr Cook. Ms Tennant's claim against Mr Jennings was dismissed. Judgment was entered for Mr Jennings against Mr Cook for $3,000, being the value of the damage to his car. It is not altogether clear how, on the pleadings, Mr Jennings made his claim against Mr Cook, but that was not raised as an issue on the hearing of the appeal.

3 The appellants appealed on a number of grounds. A judge, sitting alone, heard the appeal and dismissed it. The appellants then appealed to this Court. On the face of the proceedings, it appears ridiculous, for financial reasons, that the two appeals were instituted. However, the Court was informed that a reason behind the appeals concerns a personal injuries claim, presumably one by Mr Jennings.

4 The learned magistrate made a number of findings of fact, many of which were not challenged before this Court. I will summarise the findings of fact and then identify where the dispute remains.

5 The collision occurred after dark, at about 7.15pm, on 24 April 2003. Where it occurred, two lanes of the highway were reserved for westbound traffic. On the other side of a central medium strip there were two lanes reserved for eastbound traffic. Upon the engine dying, Mr Cook left the Gemini partly in the southern of the westbound lanes and partly to the south of the painted line delineating the southern edge of the southern lane. The colour of the Gemini was described as fluoro yellow. The evidence did not permit a precise finding as to the extent of its encroachment into the southern lane, but it constituted a substantial hindrance to and obstruction of the smooth flow of traffic in that lane. A short time before the collision, Mr Cook went off on foot to obtain assistance. It was dark and the area was unlit. He chose not to activate the Gemini's hazard or park lights or to make any effort to wave down, or otherwise alert, approaching vehicles. The learned magistrate found that Mr Cook was negligent in leaving the vehicle, at the time and place, and in the circumstances, on the highway. That finding was challenged on the first appeal, as were a number of findings of fact underpinning it, but that challenge was not pursued on the appeal to this Court.

6 Mr Jennings was considered by the learned magistrate to be a credible, although somewhat loquacious, witness and his Honour made an express finding that he accepted what Mr Jennings said. His speed was entirely appropriate. He was among a number of vehicles travelling at some 80 kph in the southern lane and had traffic immediately to his right, in the northern lane, which was travelling at a higher speed. He observed that traffic proceeding in front of him in his lane was moving abruptly to the right, from the southern lane into the northern lane. The learned magistrate inferred that the drivers had become alert to the presence of the stationary vehicle and were taking urgent evasive action.

7 It was found by the learned magistrate that Mr Jennings was confronted by a difficult situation. The traffic in front of him was changing from the left to the right lanes in the way described, but it was his intention to leave the highway by entering an exit ramp on the left, a short distance further along the highway. He assumed, wrongly, that the reason for the preceding traffic changing lanes was that they were encountering a slow moving vehicle. [It was indicated by Mr Jennings' evidence that he decided that he would simply slow down to the speed of what he assumed was a slow moving vehicle and remain behind it until he could enter the exit ramp, rather than move into the right lane to overtake the vehicle and then move back into the left lane in preparation for entering the exit ramp.] He realised too late that it was not a slow moving vehicle at all, but in fact a stationary vehicle. By the time he appreciated that, the time to manoeuvre, as the preceding drivers had done, was lost to him. The learned magistrate found that "there was higher speed traffic to his right whereby encumbering any opportunity he might have to make an urgent emergency move to his right which clearly that was required (sic)". His Honour said that "it was a difficult choice that he had to make, and I do not place any responsibility on him for having made the choice that he made". The learned magistrate was not persuaded that any contributory negligence should attach to Mr Jennings.

8 The reference to choice was to the evidence of Mr Jennings to the effect that once he realised that there was in fact a stationary vehicle blocking his path, his choice was to move into the lane on his right which was full of faster moving vehicles, thereby hitting a big car alongside him in the side, or to clip the right rear of the stationary vehicle.

9 Far more issues were raised, and findings challenged, on the hearing of the first appeal than on the hearing of this appeal. No longer challenged are that Mr Cook was negligent, that the position in which he left the Gemini was that found by the learned magistrate, and that his negligence caused the collision. Concerning the remaining issue of contributory negligence, the learned judge said:

"So far as contributory negligence is concerned, the evidence clearly establishes that Mr Jennings, whose evidence the learned magistrate accepted, was travelling at a moderate speed and keeping a proper lookout. He saw that vehicles in front of him in the left lane were moving to their right and getting into the right lane with some abruptness. There was evidence that the left front of his vehicle just caught the rear right of the broken down vehicle. I infer from that that he had moved as far to the right as he dared, bearing in mind that he gave uncontradicted evidence of a vehicle in the right lane next to him travelling at about 110 Kph. So, it needs to be asked, what could or should Mr Jennings have done that might have avoided a collision? The only thing in my view - the only extra thing that he could have done that might have avoided a collision - was that, on seeing that there was an abnormal situation up ahead, he could have slowed down to such an extent as to be able to stop. Did his duty of care require him to do that? I do not know that it did. He did not have very long to think about his response. He inferred that there must be a slow-moving vehicle. It was far more likely that the reason for the traffic up ahead moving to its right was a slow-moving vehicle rather than a stopped, unlit vehicle, on the trafficked part of the road. So I think it comes down to a question of whether this was contributory negligence or whether this was misjudgment. Minds might differ as to that. In all the circumstances I am not satisfied that the response to the situation in which he found himself involved anything worse than misjudgment, and I therefore think that the learned magistrate did not err in finding that Mr Jennings was not negligent at all."

"1 His Honour erred in law in deciding that the duty of care of the Respondent did not require him to slow down to such an extent as to be able to stop once he saw that there was an abnormal situation up ahead.

2 His Honour erred in law in failing to make findings of fact as to:

(a) The speed of the Respondent's vehicle at the time he saw the obstruction ahead;

(b) The speed of the Respondent's vehicle from the time he saw the obstruction ahead and the collision;

(c) The distance the Respondent was from the stationary vehicle when he saw that there was an obstruction ahead.

3 His Honour erred in law in failing to find that the Respondent was negligent in that he:

(a) Failed to slow his vehicle so as to avoid a collision;

11 The learned judge did not refer to the facts, relevant to contributory negligence, in any detail. The learned magistrate made some relevant findings of fact, but other facts could have been found and stated. It is appropriate that this Court should find and state them, particularly in the light of the finding of the learned magistrate that he accepted what Mr Jennings said in evidence.

12 What Mr Jennings said included the following. He was driving from his place of work at Ulverstone to his home in Penguin and intended to enter the exit ramp on the left and drive across an overpass into Penguin. (The evidence of Senior Constable Ricky Bain was that the accident scene was probably about one kilometre from the South Road overpass.) He was in the southern lane. He came to be among a cluster of large cars, Pajeros, Landcruisers and the like. They were in front of him in the southern lane and on his right in the northern lane. The vehicles in his lane were travelling at about 80 kph and one overtaking him, in the northern lane, was travelling at about 110 kph, when he saw up ahead: "The cars were doing these radical swerves out around a car that was like in the lane. As I come up to it, I thought it must have been a slow moving car ...". He decided to stay in the southern lane and travel behind what he thought was a slow moving car, rather than overtake it as the other vehicles had done, and then move back into the southern lane again prior to taking the exit ramp to the left. Asked whether he could see a fair distance ahead, he said that he could not do so because he had larger cars in front of him. He added: "It just happened to be one of those times when there was half a dozen of these large cars in front of me, so until the last couple of them peeled away, I couldn't understand why they were doing this manoeuvre ah, ahead of me." He said that he first noticed some vehicles swerving out into the northern lane when he was probably about 50 to 80 metres away. Later he stated that distance to be 70 to 80 metres.

13 It was also his evidence: "I thought this was a slow moving car ... and that suited me, because I knew that I could brake down to, I thought it was probably going about 40 to 50 kilometres an hour and I thought that's fine, I can slow down to that speed and let these rat bags go out and around, and do whatever they were doing, because that's what I honestly thought they were, I thought they were being silly, you know?' He said that "I continued to brake, slow down, because I needed to stay in that lane because that was my ... turn off lane". He said: "I thought this was still a slow moving car until I got about 20 metres away and then I realised this car isn't going anywhere ... At 50 metres away I wasn't sure ... I thought it was still a slow moving car, because there was still one more car to ah merge in with the traffic [in the northern lane] and so I got a clear view, like I said, at about 20 metres." He said: "I couldn't see the car because of these larger cars in front of me ... until the last car pulled out of the way, that was when I went woah". He said that when he first saw the stationary car "it was like a very dull shadow". On his evidence it was at that moment that he had to choose between hitting the stationary vehicle or swerving into the side of a vehicle travelling alongside him in the northern lane. As stated earlier, the learned magistrate attributed no responsibility to him for making the choice he in fact made to collide with the stationary vehicle.

14 The only other witness to the collision was Christine Dunn, who was driving a vehicle that was following Mr Jennings' vehicle. She said that he had overtaken her earlier and that the distance at which she was travelling behind his vehicle in the southern lane was "probably 50 metres - I really don't know". There were no other vehicles between her vehicle and Mr Jennings' vehicle. Then she saw his vehicle "going through the air, oh you know scooting through the medium strip", and she pulled up before reaching the stationary Gemini, which had been pushed half off the road. She said that earlier, other vehicles had been overtaking her vehicle and Mr Jennings' vehicle on the right. She could see a lot of cars ahead, and in front of Mr Jennings' vehicle, coming out of the southern lane into the passing lane, but she did not see the reason for them doing so. The accident made her realise that the stationary Gemini had been the reason.

15 The critical facts are clear. Mr Jennings was travelling at about 80 kph and became aware that vehicles in front of him were suddenly swerving out into the northern lane for a reason he could not ascertain, but which he assumed was a slower moving vehicle. He decided he would stay in his lane and travel behind that slow moving vehicle. It was only when the vehicle immediately in front of him moved out into the northern lane that he realised that the cause of it all was a stationary vehicle that was blocking much of the lane in which he was travelling. When he came to that realisation, it was too late for him to avoid colliding either with that vehicle or one adjacent to him in the northern lane. (He could not pass the stationary vehicle on its left because of a sturdy Armco rail that ran along the southern side of the highway.) In the agony of the moment, he chose to collide with the right rear corner of the stationary car.

16 It was submitted by counsel for the appellants that Mr Jennings owed a duty to take reasonable care in the terms described by Gummow, Kirby and Hayne JJ in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at par12:

"The reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."

In essence, it was submitted that a driver who collides with a vehicle that is stationary in the lane in front of him or her must be found to have been negligent. It is, I think, unwise to accept that as a correct proposition for every conceivable set of circumstances, but for most cases it is valid. Defensive driving should be the ideal of all drivers and as a general rule, and in the interests of other road users, drivers should adjust their speed and manner of driving in accordance with what they can see and with what possible dangers may be ahead but not within view. In this case, Mr Jennings knew that there was an unusual situation ahead, for vehicles in his lane were swerving to their right into the northern lane. He assumed, but did not know and could not tell, that the cause was a slow moving vehicle. He was driving so close to a vehicle in front of him that when it also moved into the northern lane and he could see what was the cause of it all, he had insufficient time in which to brake and come to a standstill. The duty to take reasonable care requires a driver to travel sufficiently far back from the vehicle in front so as to be able to avoid any unforeseen emergency that might occur up ahead. With respect to the learned magistrate and the learned judge below, the only conclusion that can be drawn from the evidence in this case is that Mr Jennings was negligent because he drove at such a speed and in such proximity to the vehicle in front that his view of what was ahead was blocked and he was unable to avoid the emergency that arose. That is particularly so because he had notice of an unusual and unidentified situation ahead.

17 Counsel for Mr Jennings submitted that what he did or failed to do was merely an error of judgment and not negligent. See Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37. That submission should be rejected for the above reasons.

18 It remains for this Court to apportion responsibility for the accident between Mr Cook and Mr Jennings. By far the greater share of responsibility should be attributed to Mr Cook. The road is a major highway and traffic was busy and likely to be busy at the time. He ought to have known that. He must have know that vehicles were likely to travel at speeds of up to 110 kph or more. It was dark. By leaving the car partly blocking one of the two lanes available for westbound traffic, without any warning to approaching drivers, for example, by activating the hazard lights of the vehicle, a highly dangerous situation was allowed by him to exist. It was virtually inevitable that if the situation remained an accident would result. Because he allowed such a highly dangerous situation to exist, Mr Cook must share far greater responsibility for the collision than Mr Jennings. The latter was driving at a speed which in most circumstances, was an extremely safe one, 80 kph, and well below the speed limit designated for the highway. He was being overtaken by much faster vehicles at the time. That an unlit and broken down vehicle would be obstructing the highway was an unlikely event. Responsibility should be apportioned 80 percent to Mr Cook and 20 percent to Mr Jennings.

19 The appeal should be allowed. The parties will need to make submissions to the Court concerning the orders that should be made as a consequence.

20 The first appellant (Cook) had been driving a motor vehicle owned by the second appellant (Tennant) along a four lane, divided highway when it developed mechanical difficulties. He had left the vehicle on the side of the west bound lane of the highway when it was struck by a vehicle driven by the respondent (Jennings). The second appellant commenced proceedings against Jennings in the Magistrates Court Civil Division, claiming that the respondent was negligent in that he:

"4.1 Failed to take reasonable and sufficient care, while driving the truck, to avoid the collision.

4.2 Failed to brake, steer or otherwise control the truck sufficiently to avoid the collision.

4.3 Failed to look where he was going while driving the truck.

4.4 Drove the truck at an excessive speed such that he was unable to avoid the collision.

4.5 Crashed into the rear of the Claimant's car."

21 She made no claim against Cook. The respondent denied the claim and pleaded that Tennant had, as "owner and/or user" of the vehicle left it unattended on the highway at the time of the collision and was negligent in so doing. At some stage the defence was amended to claim that Tennant was in control of the vehicle at the relevant time, but added in the alternative that the first appellant, was the servant or agent of Tennant who had left her vehicle "on the road unattended as a result of which the collision occurred" and that he was negligent in that he:

"a Caused or permitted the vehicle to be abandoned or left on the road, stopped or stationary;

b Caused or permitted the vehicle to be driven so as to become stationary and/or stopped on the road in the path of vehicles travelling west;

c Left the vehicle and/or abandoned it in a position on the road where it was likely to cause a collision;

d Failed to activate or cause to be activated the vehicle's traffic hazard lights to alert other drivers of its presence on the road;

e Failed to leave the vehicle off the road in the position where it would not cause a hazard to other road users including the Defendant;

f Failed to warn oncoming traffic of the presence of the vehicle on the road;

g Caused or permitted the driver of the vehicle to abandon the vehicle;

h Failed to direct, instruct or otherwise require the driver of the vehicle so as not to leave it on the road and to ensure that it was parked off the road;

i Failed to position herself or the driver east of the vehicle so as to flag down traffic."

22 There were no further relevant amendments or additions to those pleadings. The case proceeded at trial with Tennant giving evidence and her counsel calling Cook as her primary witness. The transcript reveals that the "claimant", Tennant and second defendant "Cook" were represented by the same solicitors and counsel. The state of the pleadings and common representation of the plaintiff and the "second defendant", was addressed by the learned magistrate when, after he had made his primary findings of fact, stated:

"I am not persuaded that any contributory negligence should attach to the defendant, ah, I have satisfied, as I have already indicated, that Mr Cook was negligent and there will be consequential orders that reflect those findings of fact and those conclusions of law there from. However, this raises the question of agency and related thereto I think ah the question of who are the parties to these proceedings. Although the matter did seem clear when I heard the evidence, it is now not so clear. As to the matter of agency, the following matters I seek submissions on - not necessarily now, but at some future time, um, it is apparent that there was a notice to admit agency served by the defendant's solicitors upon the claimant's solicitors, to which it appears that there has been no response. Therefore the mater of agency as between Ms Tenant and Mr Cook might be viewed as being admitted, however, Rule 47 of the Magistrates Court (Civil Division) Rules 1998 nevertheless permits the Court to take evidence as to a fact, even where there has not been rejection or acceptance of a notice to admit and of course I do have such evidence and ah, I have evidence that Mr Cook was driving for what might be thought to be his own purposes, um, to work and from work on the particular journey, unrelated to the claimant. Um, for what it is worth, I also have evidence from him that the vehicle was partly owned by himself and partly owned by him and partly owned by the claimant. Um, so that is one matter upon which I would seek some submissions in due course, it might have particular poignancy in view of the fact that I am not sure, having regard to the Court file, whether Mr Cook was made a party to the proceedings. There was certainly an application by the defendant's solicitors, um, to achieve that end, but ah, in my perusal of the pleadings and the documents, ah the pleadings and correspondence section of the court file do not confirm that any such order was made, although it was sought.

So they're the two matters, related I think, from a practical point of view, upon which I would seek some clarification upon before finalising the matter. So what would you like me to do? Adjourn the matter to mid September when I am here next or ...".

23 The complication was further addressed during the discussion about the adjournment:

"MS TOPFER: I can see the application was made, but I can't advance that matter any further today.

MS FLINT: No, I can't, I thought that there had been an order but I'd have to locate that.

CORAM: Because, um, if Mr Cook was not made a party then the following would seem in my mind to follow. A finding that there was not, at any material time, an agency relationship between the claimant and Mr Cook, um, with the result that the claimant would not be responsible for the defendant's damages, um, secondly, as there is no finding of negligence against defendant, the claimant's claim would fail in its entirety - if the matter is to be salvaged at all, it would be upon that reasoning at least, exclusively on the basis that Mr Cook was a defendant to the proceedings ##(inaudible) Mr Jennings which would permit an order against him, but there have not been any proceedings that I am aware of, as between the defendants, um, now I appreciate this is a minor civil claim, and one not ought to be too mesmerised by the pleadings and the paperwork, but nevertheless, this will have to be regularised by one process or another. So if I may leave it with both of you to get back to me when I am next here. Thank you and when is that Mr ...

MS FLINT Yes, although I have just located on my file a copy of a consent memorandum with and order dated 3 October which joined Mr Cook as a defendant.

CORAM: Well would you care to confer for a moment, Ms Topfer? I don't want to deprive you of an opportunity for a mature consideration of all this.

MS TOPFER: Yes I've certainly got the application, but no order.

CORAM: Well the application is on the Court file as well, but Ms Flint seems to be the best informed of all of us.

MS TOPFER: Yes well it certainly says so ordered Magistrate 3 October 2005.

CORAM: If we may have a photocopy of this for our file please?

CORAM: Well it would seem to follow from all of that that um, that there would be the claimant's claim would be dismissed and there would be judgment for the first defendant against the second defendant for the amount of the agreed quantum. Now, is there anything else?"

"1) The Claimants Claim is dismissed.

2. Judgment for the 1st named defendant (Jennings) against the 2nd named defendant (Cook) in the agreed quantum ($3000.00).

3. The 2nd named defendant pay the costs of the 1st named defendant on the appropriate scale.

Otherwise there is no order as to costs."

25 The notice of appeal, rather than identifying the claimed error, obscured the relevant questions and presented a misleading set of assumptions and propositions to the learned judge hearing the appeal. The pleadings had been elevated by the parties to a counterclaim alleging agency as between Tennant and Cook. In the amended statement of claim, pleading (h) (reproduced at par2 above) makes sense only if it is connected to Tennant's action and does not make pleading (c) a separate cause of action against Cook. If Jenning's pleadings constitute a separate action against Cook, then it is difficult to understand how:

(a) Cook can be both a witness for Tennant and a party who has not filed a defence;

(b) if Cook had not filed a defence, there could not have been a default judgment against him at the behest of the plaintiff before the hearing;

(c) how the respective interests of Cook and Tennant were represented on the appeal at first instance and in the Full Court.

26 The outcome, given the findings, and assuming that Cook had been properly joined as a party, ought to have been that Tennant ought to have recovered against Cook the damages for the cost of repairs to her motor vehicle and, assuming correct joinder, that Jennings ought to have maintained his entitlement to damages against Cook. The matters were not explored on the hearing of this appeal.

27 The way in which the case was conducted and the complications caused by the addition of Cook as a party, led both the learned magistrate and appellate judge into error. They were both asked to answer the wrong question. The case, at trial, and as argued on appeal, became that of an "either/or" contest between Cook and Jennings. The question of agency distracted the parties and the "fact finders" from formulating the initial question. Tennant was the owner of property. She had done nothing, other than to lend her vehicle to Cook, to bring about damage to her property. Her property was damaged. The cause of that damage was impacted by a vehicle being driven by Jennings. That established, and not being in issue, the question became: did Jennings owe Tennant a duty of care? The answer to that question, given the use of a public road, was and remains non-contentious.

28 The commencing question was not whether Cook was more responsible for the harm caused to Tennant, but whether Jennings had breached his duty of care to Tennant through negligence. The method used in determining that question remains as stated in Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40 by Mason J (as he then was) when he said:

"[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

29 The inquiry is, of necessity, retrospective, and a possible answer might be that there was no breach of duty. As the High Court said in Vairy v Wyong Shire Council [2005] HCA 62:

"[T]he apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'."

30 Three propositions remain apposite today, even if the ambit of vicarious liability has been the subject of detailed consideration (New South Wales v Fahy [2007] HCA 20).

31 Here the questions of contributory negligence or apportionment did not arise until the primary finding of breach of duty had been answered. If causation and breach (even if minor) were established, then the plaintiff (Tennant) was entitled to remedy against the respondent (Jennings) who was entitled, in turn, to remedy against the driver of the other motor vehicle and then, and only then, was the tribunal required to consider contribution or apportionment.

32 This Court is required to review the finding that Jennings was not liable for any of the damage suffered by the first appellant, and determine whether there had been appealable error (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118). This is not a case where the "gateway to appellant intervention should not be opened" (Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621).

33 The grounds of appeal to this Court state:

"1 His Honour erred in law in deciding that the duty of care of the Respondent did not require him to slow down to such an extent as to be able to stop once he saw that there was an abnormal situation up ahead.

2 His Honour erred in law in failing to make findings of fact as to:

(a) The speed of the Respondent's vehicle at the time he saw the obstruction ahead;

(b) The speed of the Respondent's vehicle from the time he saw the obstruction ahead and the collision;

(c) The distance the Respondent was from the stationary vehicle when he saw that there was an obstruction ahead.

3 His Honour erred in law in failing to find that the Respondent was negligent in that he:

(a) Failed to slow his vehicle so as to avoid a collision;

34 But that was not the way in which the issue was presented to the appellate judge. The original notice of appeal presented the claim of error in a diffuse and complex manner, claiming error:

"1 That the learned magistrate erred in concluding that the second appellant had failed to discharge the onus of proving negligence on the part of the respondent.

2 That the learned magistrate erred in concluding that the first appellant had failed to discharge the onus of proving contributory negligence on the part of the respondent.

3 The learned magistrate erred in concluding that the negligence of the first named appellant, which was found by his Honour, was causative of the collision between the second named appellant's car which had been driven by the first named appellant, and the respondent's car, and of the damage to the respondent's car resulting from the collision.

4 The learned magistrate erred in law in that there was no evidence upon which it could be found that the first named appellant was negligent.

5 The learned magistrate erred in law in that he failed to apply the standard of care which has been enunciated by the High Court in Manley v Alexander [2005] HCA 79 that the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

6 The learned magistrate erred in law in holding that it was negligent for the first named appellant to have left his car where he did and/or that by doing so he caused the collision and the damage to the respondent's vehicle.

7 That the learned magistrate failed to apportion liability in accordance with Section 4 of the Wrongs Act 1954.

8 That the learned magistrate erred in law in finding that the respondent was not negligent to any degree.

9 That there was no proper basis for the learned magistrate to:

a Find that in respect of the respondent 'there was higher speed traffic to his right thereby encumbering any opportunity he might have to make an emergency move to this right which clearly that was required. It was a difficult choice that he had to make and I do not place any responsibility on him for having made the choice that he made';

b Find that in respect of the respondent 'he was driving in the lane which he was perfectly entitled to do and he had an obligation to under the Traffic road Rules Regulations to drive as close as practicable to the left hand side of the road, and is not to be criticised if his vehicle was not in the centre of the lane';

c Find that the respondent was entitled to continue driving at 80 kilometres per hour when he was aware there was preceding traffic changing lanes because he thought they were encountering a slow moving vehicle;

d Give weight to the hearsay evidence of advice from Tasmania Police dispatch services that there was a vehicle partly on the road and off the road;

e Give weight to hearsay evidence that Police told the first named appellant that they were responding to a report of a vehicle that was on the highway.

10 That the learned magistrate erred in law in:

a Failing to take into account the evidence that traffic in front of the respondent was taking evasive action;

b Failing to take into account sufficiently, or at all, the evidence of the Police Officer Constable Bain, that he saw gouge marks where the two vehicles had collected, which commenced to the south of the white side strip line on the southern edge of the highway;

c Failing to give little or no weight to the evidence of the first appellant that when he stepped out of the vehicle he stepped onto the right side strip line of the southern side of the highway;

d Finding that the failure of the respondent to avoid colliding with the appellant's vehicle did not constitute a lack of reasonable and sufficient care and attention by the respondent."

35 The manner in which the case was then argued becomes apparent in the reasons for judgment of the learned appeal judge, which included:

"The learned magistrate, having seen and heard the witnesses, accepted the evidence of Mr Jennings to the effect that the vehicle was in the left lane. He took into account, as he was entitled to do, the evidence that someone had made a phone call to the police reporting that the vehicle was on or partly on the travelled portion of the road. He also took into account the evidence that vehicles ahead of Mr Jennings had been swerving and changing lanes, apparently to avoid the broken down vehicle. And I think, when one examines the probabilities of the situation, it is pretty unlikely that a motorist would have run off the road for no apparent reason and run into the back of a vehicle that was wholly to the left of the left lane. It is much more probable that a collision would have occurred as a result of the broken down vehicle being wholly or at least partly on the left-hand westbound lane. So I think the finding of the learned magistrate as to the position of the vehicle is unimpeachable.

...

His finding was to the effect that Mr Cook was negligent in leaving the vehicle unlit at that time and place on the highway, where traffic was using two lanes of the highway to travel west. In my view it was appropriate for the learned magistrate to make that finding. I think in the circumstances to leave a vehicle unlit and unattended was negligent. I think that it was appropriate for there to be a finding of negligence.

The learned magistrate did not say a great deal about the causative link between the leaving of that vehicle there unlit and unattended and the collision. But I am satisfied on the balance of probabilities that the leaving of that vehicle, unlit and unattended on the roadway, was causative of the collision. But for it being left there, the collision would not have occurred. Had the vehicle had hazard lights flashing I think it is likely that Mr Jennings, who was keeping a proper lookout, would have seen them. I think it is likely that one or more passing motorists would have stopped to give some assistance or to at least warn oncoming traffic. On those bases I am satisfied that the leaving of the vehicle unlit and unattended in that place caused or contributed to the collision."

36 His Honour commenced his consideration of the case against Jennings by stating at par11:

"So far as contributory negligence is concerned, the evidence clearly establishes that Mr Jennings, whose evidence the learned magistrate accepted, was travelling at a moderate speed and keeping a proper lookout."

37 There can be no specific criticism of the findings of fact made by the learned magistrate or the appellate judge. The accident occurred after dark. Cook had not activated the "hazard lights", he had left the scene and he had left the vehicle unattended. There were other things he ought to have done. He might have been an unsatisfactory witness. But a vehicle had broken down and was, at least in part, on the travelled portion of a four lane highway. It was dark. The photographic evidence shows the presence of a metal barrier which limited the distance available for the placement of a "broken down vehicle".

38 The respondent was subject to a duty to control his speed and direction of the vehicle in such a way that the driver may take steps to react to events inherent to the use of the roadway (Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413). The findings of Gummow, Kirby and Hayne JJ in that case at pars11 - 14, are apposite here:

"No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.

It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

When driving at night, the driver must take account of how well the road is illuminated: both by the vehicle's lights and by any street or other lighting. In the present case, there was a street light close to where the respondent lay on the road. Its light illuminated the area where the respondent was. Of course, it is important to remember that the respondent was wearing dark clothing and lying down, generally parallel with the direction the appellant's truck was travelling. The contour of the road gave the appellant an uninterrupted view of the road ahead for a distance considerably greater than the light cast by his low beam headlights. The light cast by those headlights extended about 60 metres ahead of his vehicle. The respondent, even clad in dark clothing and lying parallel to the direction of travel, could have been seen as some form of obstruction to be avoided at least by the time the headlight beams illuminated where he was. But the appellant did not see him. For two to three seconds the appellant continued to look to the side of the road rather than to the roadway over which his vehicle would travel and he maintained his vehicle's speed while veering towards the centre of the road.

It was well open to the Full Court to conclude, as it did, that the appellant had failed to exercise reasonable care. In this appeal, this Court's function is to correct any error that has been shown in the decision and hence the resulting orders of the Full Court. It is not, as such, to exercise for itself the powers of the Full Court, absent demonstrated error. The very large discount that the Full Court allowed for contributory negligence on the respondent's part was not challenged in this Court."

39 The evidence of the police officer who attended the accident was that he had spoken with Cook, who said:

"... when I found the vehicle, it was completely off the road, um, because it had been hit from behind and was obviously, it was pushed, um. ... The southern side of the road there's an armco railing as you say, um, that's and that finishes and then it drops away over a bank, or the road continues, off the side of the road it drops over a bank. The vehicle was past the Armco railing, probably 10 metres.

...

Ah, there were gouge marks where the two vehicle [sic] had impacted and when it impacted it's pushed the rear of the other vehicle down and those gouge marks didn't start until after, if the lane's there, the gouge marks started off the road, so to speak."

40 Mrs Dunn, a motorist who was following the respondent described the circumstances preceding and surrounding the collision in the following exchange with counsel:

"MR BARTLETT: what did you see ahead of you in your lane before you saw Mr Jennings car going through the air?

MRS DUNN: um, cars, quite a few cars passed me, um ...

MR BARTLETT: were they passing in the overtaking lane or the right hand lane?

MRS DUNN: Right hand lane

MR BARTLETT: Thank you. Were they going faster than you?

MRS DUNN: yes

MR BARTLETT: and were there many of them?

MRS DUNN: quite a few, yes

MR BARTLETT: in your lane, ahead of you, what did you see?

MRS DUNN: oh, nothing really, um, all I just, I probably would have been um, like, it's a bit hard to say how far I was behind Russell, um, but, ahhhh, that's about all I can remember that I just seen him going scooing across the road

MR BARTLETT: Ok. Did you see any vehicles other than his in your lane doing an manoeuvre on the roadway?

MRS DUNN: Yes

MR BARTLETT: can you describe please what that manoeuvre was?

MRS DUNN: ahh, I could see a lot of cars coming out of the lane I was in going out into the passing lane

MR BARTLETT: so changing from the left hand lane to the right hand lane?

MRS DUNN: Yes

MR BARTLETT: did you see why they were doing that?

MRS DUNN: No

MR BARTLETT: do you now understand why they were doing that?

MRS DUNN: Yes

MR BARTLETT: what led you to understand why they were doing that?

MRS DUNN: there was something there on the road

MR BARTLETT: do you know what it was?

MRS DUNN: I do now yes

MR BARTLETT: and what, what was it?

MRS DUNN: a car"

She had seen a number of vehicles manoeuvring around the object ahead.

41 The respondent gave evidence that he was travelling on the left hand lane of the west bound section of the divided highway. He was intending to exit the highway to his left some little distance ahead of where the collision occurred. His account, given in evidence-in-chief, was:

"MR JENNINGS: ah, one was in the overtaking lane, travelling at about 110, the others in my lane were travelling at about 80 and I could just see up ahead that the cars were doing these radical swerves out around a car that was like in the lane. As I come up to it, I thought it must have been a slow moving car, cause I needed to stay in that lane to go out around that car and then take the turn off, so I just kept assuming, right up until the last car pulled away and joined in, see this is 80 kilometre an hour traffic merging with 110 kilometre traffic and it caused a chain reaction of all these cars to move back, so I, in the end I had no way to move over into the overtaking lane, there become a point that I had no more choice, it wasn't a slow moving car, it was a car that was stopped in the middle of the road, and um, I had to wait for the last car to go past and I just nicked the back corner as I went around and that was enough for me to slide up the side of these peoples [sic] car

MR BARTLETT: the last car to go past was on your right in the right hand overtaking lane?

MR JENNINGS: yes and they were inches away from me, like, just inches

MR BARTLETT: and your intended manoeuvre was to go to the right hand lane

MR JENNINGS: Yes

MR BARTLETT: what did you see confronting you in front of you?

MR JENNINGS: Ah, a car going nowhere. Just a car going nowhere.

MR BARTLETT: were you able to identify its colour in those few moments

MR JENNINGS: Oh, yeah, only because I had a few seconds, yes it was a yellowy coloured car yes.

MR BARTLETT: which part of your vehicle hit the yellow car?

MR JENNINGS: ah, my most outside edge of the passenger side of the car

MR BARTLETT: ok. And at the time that you saw the car ahead of you, where was it located?

MR BARTLETT: relative, lets say, to the line on the left hand side of the road, the centre line, the railing ...

MR JENNINGS: it was about on the edge of that safety lane, like, the passenger side

MR BARTLETT: the breakdown lane?

MR JENNINGS: ... yeah the breakdown lane. The passenger wheels would have been almost in align with those, with that, um, ah, line, with this side of the line painted on the road and the safety rail

MR BARTLETT: ok and the balance of the car into the lane in which you were travelling

MR JENNINGS: Oh yes, yes

MR BARTLETT: you hit the vehicle, what then happened?

MR JENNINGS: um, I went up into the air wobbled a little bit, then come back down onto the ah, overtaking lane and I thought I was still driving, because the car was still going forward but it slowly drifted off to the right really quickly and into the dirt, onto the grass and I thought I was going to head up into the other traffic, which is irrelevant, I know, because it didn't happen, but um, yeah."

42 In cross-examination he provided a more detailed account, which relevantly included:

"MS TOPFER: you were driving along there in a westerly direction so you can actually see ahead a fair distance just before the accident can't you? well you could

MR JENNINGS: ah, no I couldn't no because I had larger cars in front of me, like I said the Land Cruisers, land ah Pajeros, all, it just happened to be one of those times when there was half a dozen of these large cars in front of me, so until the last couple of them peeled away, I couldn't understand why they were doing this manoeuvre ah, ahead of me.

MS TOPFER: Yes. So when you say not far, what sort of distance are you talking about?

MR JENNINGS: Um, when I first noticed some swerving out, probably about 50 metres

MS TOPFER: so 50 metres away, you can see other cars swerving out

MR JENNINGS: the overtaking lane, yeah into the overtaking lane

MS TOPFER: the right hand lane yes. So didn't that sort of put you on notice that something was going on there?

MR JENNINGS: ah yes and I continued to brake, slow down, because I needed to stay in that lane because that was my overtaking lane, I mean my turn off lane

MS TOPFER: right, so your [sic] pretty focused on the fact that you needed to stay in the left,

MS TOPFER: to get around to your home in Ironcliffe Road

MR JENNINGS: yes and like I said, I couldn't understand why these people were doing these, such, radical manoeuvres, you know,

MS TOPFER: so when you say, but, there were two lanes ahead of you, two lanes of vehicles ahead of you, or two lanes of cars ahead of you?

MR JENNINGS: ah with 50 metres to go, I had full traffic on my right,

MR JENNINGS: and that suited me, because I knew that I could brake down to, I thought it was probably going about 40 to 50 kilometres an hour and I thought that's fine, I can slow down to that speed and let these ratbags go out and around, and do whatever they were doing, because that's what I honestly thought they were, I thought they were being silly, you know?

MR JENNINGS: well the more I tried to brake, the more I come closer it seemed to pull to the right a little bit and there was a car beside me and the last thing I wanted to do, I was as close to me as I was to um, well to you,

MS TOPFER: so if you'd have actually looked carefully you would have seen that it was a stopped vehicle

MS TOPFER: cause your [sic] telling me now that whether there were lights, whether there were hazard lights on or not

MR JENNINGS: no, I couldn't, I couldn't see the car because of these larger cars in front of me

MR JENNINGS: even until the last car peeled out of the way, that was when I went woah, this is

MS TOPFER: but your [sic] telling me that you saw it 50 metres away and you though it was slow moving

MR JENNINGS: no, I, there was 4 or 5 cars ahead of me,

MR JENNINGS: and there was cars swerving out of the way

MR JENNINGS: I didn't see what I saw what they were swerving out of the way of

MS TOPFER: but you thought you knew that there was something they were swerving from

MR JENNINGS: there had, there must be something there yes, but I didn't know if it was a slow moving car or whatever, therefore, from where I was, going back, say 80 metres, back I

MS TOPFER: so when did you first notice these cars swerving round?

MR JENNINGS: oh, somewhere between 70-80 metres back I suppose, something like that, the first one went, see they could only go as the opportunity arose, you know, and they had to peel off, and off, and off, yeah

MS TOPFER: so 70 to 80 metres away you were seeing cars swerve around to the right

MR JENNINGS: Yes. See they'd all left it to the last seconds themselves, all the cars ahead of me"

43 There was clear evidence of inadvertence. He had noticed something untoward happening ahead. He was conscious that other vehicles were taking evasive action or altering their line of direction around some obstruction or slow moving vehicle. He was entitled to believe that it was but a slow moving vehicle, but maintained his line of direction because of his intended exit from the highway. Had the object ahead proved to be a supine pedestrian or injured person, his conduct could readily be seen as negligent. That another had brought about the predicament did not absolve him of any "duty of care". Had the question been put to the learned magistrate or appellate judge in that form, there is good reason to conclude that the outcome would have been different.

44 I would uphold the appeal. This Court has conducted the appeal by way of rehearing and "gave judgment which in its opinion ought to have been given in the first instance" (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, Isaac J at 561, cited with approval in Fox v Percy (supra) at 23).

45 Given the amount involved and at the request of the parties, I propose that the matter not be remitted for a fresh hearing. The finding of negligence by the respondent requires this Court to consider the questions of contribution and apportionment (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531). I would accept the primary findings of fact made by both the learned magistrate at trial and the learned primary judge on review. Consistent with those findings, and accepting that any question of contributory negligence is an exercise in judgment (Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 and Anikin v Sierra (supra)), I would assess the respective share in contribution involving a comparison both of culpability and the relative importance of the acts of the parties in causing the damage (Podrebersek (supra)) as being 70 per cent on the part of the first appellant and 30 per cent on the part of the respondent. The Wrongs Act 1954, s1, provides for differing circumstances for awards of contribution and indemnity. Here there are questions of the assessment of the entitlement of the second appellant against the first appellant and the respondent, and of the respondent against the second appellant. The nature of the order adding the first appellant as a defendant or one against whom an indemnity order ought be made is unclear on the material provided to this Court. Accordingly I would propose that counsel be afforded time to consider the matter generally and the import and nature of joinder before making submissions as to the appropriate orders sought from this Court.

46 I have had the advantage of reading the reasons for judgment prepared by each of Crawford J and Slicer J. I agree with, and adopt, Crawford J's summation of the findings of the learned magistrate and the further findings made by Crawford J.

47 I share the view of my colleagues that Mr Jennings breached his duty of care. In my view, his erroneous assumption that a slow moving vehicle was blocking the roadway was far from inconsequential. He could see that something was obstructing the roadway and his gamble that it was a slow moving vehicle was a fundamental and negligent miscalculation. The potential causes for the obstruction were many and varied and included a stationary or almost stationary: motor vehicle, vehicle other than a motor vehicle, person or animal. It could also have been a significant excavation or collapse in the roadway or an object such as a large item that had fallen from the tray of a truck. As he had notice of the obstruction, it was incumbent upon him to slow his vehicle sufficiently to give him time to view and assess the obstruction and avoid it.

48 As to the apportionment of responsibility between Mr Cook and Mr Jennings, I consider that the greater share of responsibility rests with Mr Cook. It was he who created the danger by leaving the car partly blocking a lane on a major highway without taking any steps, such as activating hazard lights, to warn vehicles using that lane. Mr Jennings' conduct warrants a finding that he should bear a material share of responsibility for the accident. He was aware of the presence of the obstruction and had he not gambled on it being a slow moving vehicle, he could have avoided it. On balance, like Slicer J, I consider that it is just and equitable that responsibility be apportioned 70 per cent against Mr Cook and 30 per cent against Mr Jennings.

49 I would allow the appeal and give the parties leave to make submissions on the consequential orders that should be made.