Freeleagus v Nominal Defendant [2007] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION: Freeleagus v Nominal Defendant [2007] QCA 116

PARTIES: DAMIEN MYLES FREELEAGUS (plaintiff/respondent) v NOMINAL DEFENDANT (defendant/appellant)

FILE NO/S: Appeal No 9528 of 2006 / DC No 3393 of 2003

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 5 April 2007

DELIVERED AT: Brisbane

HEARING DATE: 23 March 2007

JUDGES: Williams and Keane JJA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal allowed / 2. Judgment in favour of the plaintiff set aside and plaintiff's action dismissed / 3. Plaintiff to pay appellant's costs of the action and of the appeal

CATCHWORDS: TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES - where plaintiff suffered personal injury after colliding with motor vehicle stopped on highway - where liability apportioned between plaintiff and driver of stopped vehicle - whether driver of stopped vehicle was negligent / FAI General Insurance Co Ltd v Curtin [1997] QCA 241; (1997) Aust Torts Reports 81-442, considered / Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, applied / Suncorp Insurance and Finance v Fitchett [1997] QCA 104; (1997) 25 MVR 479, considered

COUNSEL: M T O'Sullivan for the appellant / P J Goodwin for the respondent

SOLICITORS: DLA Phillips Fox for the appellant / Bartels for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with all that he has said therein and with the order he has proposed.

KEANE JA: On 27 November 2000 at about 2.45 pm, the plaintiff was driving his motor vehicle in a generally south-easterly direction on the Pacific Highway at Loganholme when he collided with the rear of an unregistered motor vehicle which was stopped and protruding partly into the right-hand lane of the three south-bound lanes. The plaintiff's vehicle then spun into the middle lane and collided with another motor vehicle. As a result, the plaintiff suffered personal injuries. The unregistered vehicle had shortly before been driven by Ms Anya Daniels to the right-hand side of the highway after the right-hand front tyre of her vehicle deflated.

After a trial of the plaintiff's action for damages for personal injuries, the learned trial judge apportioned liability 70/30 in favour of the plaintiff.

The appellant argues that the learned trial judge erred in holding that negligence on Ms Daniels' part contributed to the occurrence of the accident at all. Alternatively, the appellant attacks the learned trial judge's apportionment of liability. I will discuss the issues which arise on the appeal after first setting out the facts as found by the learned trial judge.

The facts

Ms Daniels' right front tyre deflated in circumstances which involved no fault on her part.¹ The steering of the vehicle became very heavy and difficult.² Ms Daniels moved her vehicle parallel to and as close as possible to the concrete barrier which separated the north and southbound carriageways.³ The vehicle protruded about half a metre into the right-hand lane of the carriageway.⁴

Ms Daniels activated the hazard lights on her vehicle.⁵ Southbound traffic slowed down and moved around Ms Daniels' vehicle.⁶ She stayed with her vehicle until an off-duty police officer, Mr Nathan, told her to leave her vehicle as the situation was dangerous.⁷ It may be noted that Mr Nathan did not suggest that Ms Daniels should attempt to move her vehicle across the carriageway.

The learned trial judge found that, at the time she suffered the flat tyre, "there may have been too much traffic for her to change lanes at that particular time".⁸ This finding was based on a statement by Ms Daniels tendered under s 92 of the Evidence Act 1977 (Qld) on the footing that Ms Daniels could not be located. The learned trial judge clearly accepted this evidence.

It is to be noted that her Honour made no explicit finding that circumstances changed, or, indeed, for how long Ms Daniels' vehicle was stationary before the plaintiff collided with it. Nevertheless, the learned trial judge held that:

"[t]here is no evidence to support the view that Ms Daniels was simply unable at any point in time … to drive her vehicle across the left side of the highway due to any lack of manoeuvrability. Nor do I find that she couldn't have got her car across to the left side of the highway at some stage either before or even after parking it due to any southbound traffic."⁹

The learned trial judge concluded that Ms Daniels had failed to do "everything reasonably possible in the circumstances" to get her car across to the emergency lane at the left of the highway.¹⁰ In particular, her Honour said:

"The defendant, when parking her vehicle in the position which she did, should have appreciated that parking her vehicle in the manner which she did was negligent. Although the hazard lights were illuminated on her vehicle, the defendant should have, in my view, appreciated that the parked vehicle would have, in those circumstances, constituted a danger to other road users and therefore should have parked her vehicle in the emergency lane which was situated on the left of the highway. (see Ex 11 and 12 which depict the emergency lane)."

As to the plaintiff's part in the accident, the learned trial judge found that the plaintiff actually saw Ms Daniels' vehicle approximately 200 to 300 metres before colliding with it.¹¹ Mr Nathan saw Ms Daniels' vehicle when he was 900 metres away.¹² Even though Mr Nathan was driving in the left-hand lane, and perhaps had a better view, and was trained to keep a better lookout, than the plaintiff, Mr Nathan's evidence makes the point that Ms Daniels' stationary vehicle could easily be seen by a following driver keeping a proper lookout.

Her Honour found that the plaintiff did not see Ms Daniels' hazard lights.¹³ He saw Ms Daniels' vehicle only when he had moved from the middle lane into the right-hand lane.¹⁴ The plaintiff, who had been travelling at approximately 100 kilometres per hour, did not slow down as he approached Ms Daniels' vehicle: he swerved to avoid it when he realised that it was stopped.¹⁵ On his behalf, it was said that his want of effective attention to the stationary vehicle was due to his attention to the moderate to heavy traffic on the carriageway. This point serves, of course, to highlight the difficulty which confronted Ms Daniels in terms of the possibility of moving her vehicle from the right-hand side of the carriageway across the traffic to the left-hand emergency lane.

The issues on appeal

The principal issue on the appeal is whether the learned trial judge erred in concluding that the accident was caused by negligence on the part of Ms Daniels. Having regard to her Honour's findings of fact, the principal considerations here are the nature and extent of Ms Daniels' opportunity to move her vehicle across the left-hand lanes to a place of greater safety and the fact that the plaintiff had the opportunity to observe the stationary vehicle for 200 to 300 metres. Her Honour made no precise finding (nor was evidence led which might permit such a finding to be made) as to the former consideration; and in this regard, a subsidiary question arises as to whether the absence of evidence of the nature and extent of Ms Daniels' opportunity to move her vehicle was a deficit in the plaintiff's case of negligence or whether it was incumbent on the appellant to explain Ms Daniels' failure by evidence of limited opportunity (and, if it was, whether the appellant discharged that evidential burden). In resolving these issues, this Court is "in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge".¹⁶

There is a further subsidiary issue which bears upon the principal issue. On the first day of the trial, the learned judge granted leave to the plaintiff to withdraw admissions of fact deemed by r 189(2) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") to have been made by the plaintiff in consequence of his failure to respond in a timely way to a notice to admit facts delivered by the appellant. The appellant argues that, by virtue of the facts which were thus taken to be admitted, it would have been entitled to judgment and it contends that the learned trial judge erred in the exercise of her discretion to grant leave to withdraw the admissions.

If the principal issue were to be resolved in favour of the plaintiff, it would be necessary to consider the apportionment of liability for the accident having regard to the plaintiff's opportunity to observe and avoid Ms Daniels' vehicle.

The appellant's liability

One must consider the basis on which Ms Daniels was found to have breached her duty to exercise reasonable care in favour of other users of the road such as the plaintiff. The situation of Ms Daniels' vehicle did create a danger of a collision, but that situation was initiated through no fault of Ms Daniels. Ms Daniels made a real attempt to reduce that danger by parking her vehicle as near as possible to the concrete barrier. If she had made a further attempt to remove the danger by manoeuvring her damaged vehicle across the carriageway to the emergency lanes she may have created a situation at least equally as dangerous. Ms Daniels' statement which was tendered at trial suggested that she turned her mind to the possibility of trying to move her vehicle across the carriageway, but had decided against that course.

The evidence, including that of Mr Nathan, does not disclose that Ms Daniels had a meaningful opportunity safely to drive her car across the highway to the emergency lane. That being so, it is difficult to sustain the conclusion that she was at fault in failing to do so unless the appellant bore the onus of demonstrating positively that such manoeuvres would have been unsafe. In this regard, once it is accepted that Ms Daniels was in no way at fault for the deflation of her tyre, the question becomes whether she was at fault for not manoeuvring her vehicle across the highway.

It was for the plaintiff to establish that Ms Daniels was at fault in this regard. To establish that she was at fault, it was necessary for the plaintiff to show that Ms Daniels failed to take steps that were reasonably open to her to reduce the risk of collision. That burden could not be discharged without evidence of a real opportunity safely to move her vehicle across the highway after her tyre deflated. The absence of evidence in this regard is a deficit in the plaintiff's case.

Next, it is to be noted that the learned trial judge found that Ms Daniels' stationary vehicle was visible to the plaintiff's vehicle approaching from behind for about 200 to 300 metres. Ms Daniels' vehicle had its emergency lights in operation. On these findings, the plaintiff thus had a substantial opportunity to avoid the collision and, in consequence, a responsibility to do so.

In Rains v Frost Enterprises Pty Ltd,¹⁷ the Full Court of the Supreme Court of Queensland set aside a 60/40 apportionment of liability by a trial judge made against the driver of a vehicle which pulled out from the side of a road at a very slow speed in favour of the driver of a following vehicle which collided with the former vehicle while overtaking it. The Full Court concluded that the following driver was wholly responsible for the collision.

The leading judgment in the Full Court was delivered by Dunn J. His Honour said:

"Had there been a jury in the case, the jury would have been entitled to judicial guidance as to whether the defendants’ driver owed the plaintiff a duty to take care not to harm him (clearly he did) and what the extent of the duty was, having regard to the 'special relation' or succession of relations existing between defendant and plaintiff in the moments immediately preceding the accident, and what causal relationship the plaintiff must prove between an act or omission by the defendant which was a breach of duty and any damage suffered by the plaintiff. Cf. Rootes v. Shelton (1967) 116 C.L.R. 383, at p. 387."

Dunn J reviewed the findings of fact and the evidence and went on to say:

"The finding upon which the learned judge based his conclusion that the defendants’ driver was negligent was, then, that, from a time before the first car went past, the utility was being driven slowly on its correct side of the road, in a position in which the overtaking driver could have readily seen and easily passed it without danger, as the two preceding cars did.

I have queried whether His Honour correctly appreciated the nature of the 'special relation' between 'leading car' and 'following car' on a quite long straight stretch of road, in conditions of good visibility. The essence of that relation is that the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation (as, by failing to steer clear) and a safe situation (as, by steering well clear, or by stopping, if he is in doubt as to the leader’s intentions).

It is because of this aspect of the relationship that one finds such judicial observations as the following:

"The duty of an overtaking car is to watch carefully the leading car. If the onus lies on one more than the other, the overtaking car has to show that the leading car is responsible for the collision."

Twiehaus v. Morrison (1947) N.Z.L.R. 197 at p. 202.

"The following vehicle has the leading vehicle under observation, and it must be expected to watch the leading vehicle for any indication of its intention, but - without negligence on his part - the driver of the leading vehicle may not know of the presence of the following vehicle, and the driver of the latter cannot assume, as the other may, that he is under observation."

Kleeman v. Walker (1934) S.A.S.R. 199.

"- if it be practicable to pursue a course which is safe, and you follow so closely upon the track of another that mischief may ensue, you are bound to adopt the safe course - when one coach follows close upon the track of another, and there are two ways, one of which is perilous and the other safe, the driver is bound to adopt that which is safe."

Mayhew v. Boyce 1 Stark. 423 (171 E.R. 517).

"- the duty which the plaintiff owed to the defendant was to keep to his right side of the road and not to change his course without due and adequate warning under the circumstances, to the defendant. If that were not so, of course, no one could pass safely. On the other hand the duty which the defendant owed to the plaintiff lies in this: that he was overtaking the plaintiff and his duty was not to run down with his car the plaintiff’s car."

(direction to the jury in Warren v. Grinnell Co., cited with approval by Macdonald J.A., on appeal - (1936) 4 D.L.R. 544, at p. 554).

Whilst the relationship will vary with the circumstances of each case, such as the nature of the road, the usual speed of traffic, and traffic laws or conventions in force, it must always be appreciated and given due consideration.

In my opinion, it is clear in the instant case that His Honour either did not correctly appreciate the relation or did not give it due consideration, because he concluded that it was the duty of the driver of the second defendant’s vehicle to give 'some warning' to overtaking vehicles. I am, with respect, unable to understand why a slow-moving yellow truck travelling for a significant time in view of an overtaking vehicle should warn that vehicle that it is travelling slowly, or what an appropriate warning system would be. The finding of negligence against the defendants should, I think, be set aside.

It is true that there was a causal relationship between [the defendant's] manner of driving and the damage suffered by the plaintiff. If he had not driven where and how he did, there would have been no collision and no damage. But, in the absence of any breach of duty by him, that does not matter."

The decision of the Full Court in Rains v Frost Enterprises Pty Ltd emphasised the responsibility of the following driver in a situation where the following driver had failed to avoid a collision with a vehicle which pulled out onto the carriageway from the side of the road. The responsibility of the following driver may, at least in some cases, be even more significant in terms of the responsibility for a collision where the vehicle in front is stationary with its hazard lights illuminated.

One must not overemphasise the responsibility of the following driver or the importance of that driver's opportunity to avoid the risk created by the carelessness of another. It must be emphasised, of course, that cases of negligence in the management of motor vehicles must always be resolved on their own particular facts.¹⁸ In FAI General Insurance Co Ltd v Curtin,¹⁹ this Court, by majority, upheld the conclusion of the judge at first instance that a driver who stopped her car substantially on the incorrect side of the carriageway had not negligently caused or contributed to a collision. On the other hand, in Suncorp Insurance and Finance v Fitchett,²⁰ an apportionment of liability of only 20 per cent was made against a driver who drove his truck into the rear of a trailer and prime mover which was stationary on a straight stretch of road facing in the direction of travel of the driver of the truck. But, in that case, the driver of the prime mover and trailer could easily have pulled off the carriageway onto the shoulder of the road and so obviated all risk of an accident.

In concluding that Ms Daniels' failure to move her vehicle off the carriageway caused or contributed to the accident, the learned trial judge did not recognise the importance of the plaintiff's opportunity, as the following vehicle, to avoid the risk created by Ms Daniels' stationary vehicle. This is, in my respectful opinion, a significant error in the determination of the issue of liability.

Summary in relation to liability

The factual position may be summarised as follows: the vehicle driven by Ms Daniels was brought to a halt without fault on her part; she was not at fault in failing to manoeuvre her vehicle off the carriageway at the time it came to a halt; the traffic on the carriageway was moderate to heavy; there was no evidence of a subsequent opportunity for Ms Daniels to safely move her vehicle across the carriageway; the vehicle was stationary on the highway in broad daylight; the vehicle's emergency lights were on; all other vehicles had no apparent difficulty in avoiding Ms Daniels' vehicle; and the plaintiff had ample opportunity to see the stationary vehicle, and avoid the collision by the exercise of reasonable care on his part.

The learned trial judge did not identify an evidentiary basis for her Honour's conclusion that Ms Daniels ought reasonably have sought to move her vehicle through the traffic to the left-hand side of the carriageway. Her Honour did not take adequately into account the very real opportunity of the plaintiff to avoid the hazard created by Ms Daniels' stationary vehicle. In my respectful opinion, her Honour's conclusion that Ms Daniels contributed to the occurrence of the accident by negligence on her part was erroneous having regard to her Honour's findings of primary fact and the uncontested evidence before her Honour. The decision of the learned trial judge cannot be sustained.

In my respectful opinion, the proper conclusion from the findings made by her Honour and the available evidence is that the accident was not caused or contributed to by negligence on the part of Ms Daniels.²¹

It is unnecessary to consider the appellant's subsidiary argument in relation to the withdrawal of the plaintiff's deemed admissions. Nor is it necessary to resolve the issue of contributory negligence.

Conclusion

The appeal should be allowed. The judgment in favour of the plaintiff should be set aside. The plaintiff's action should be dismissed. The plaintiff should pay the appellant's costs of the action and of the appeal.

DOUGLAS J: I also agree with the reasons of Keane JA and with the order he has proposed.

Footnotes

1. Freeleagus v Nominal Defendant [2006] QDC 368 at [31]. ↩

2. Freeleagus v Nominal Defendant [2006] QDC 368 at [3], [31] and [37]. ↩

3. Freeleagus v Nominal Defendant [2006] QDC 368 at [3]. ↩

4. Freeleagus v Nominal Defendant [2006] QDC 368 at [5]. ↩

5. Freeleagus v Nominal Defendant [2006] QDC 368 at [5]. ↩

6. Freeleagus v Nominal Defendant [2006] QDC 368 at [27]. ↩

7. Freeleagus v Nominal Defendant [2006] QDC 368 at [22] – [23]. ↩

8. Freeleagus v Nominal Defendant [2006] QDC 368 at [37]. ↩

9. Freeleagus v Nominal Defendant [2006] QDC 368 at [36]. ↩

10. Freeleagus v Nominal Defendant [2006] QDC 368 at [37] – [44]. ↩

11. Freeleagus v Nominal Defendant [2006] QDC 368 at [9], [60]. ↩

12. Freeleagus v Nominal Defendant [2006] QDC 368 at [27]. ↩