Unwin, Leslie James & Anor v Clarke, Neville Bruce [1984] FCA 215

Pennington v. Norris (1956) 96 CLR 10 Warren v. Coombes (1979) 142 CLR $31 "The Macgregor" (1943) A.C. 197

LESLIE JAMES UNWIN AND PAUL UNWIN v. NEVILLE 83RUCE CLARKE

) ) NORTHERN TERRITORY ) No. NTG 3 of 1984 DISTRICT REGISTRY ) GENERAL DIVISION )

ON APPEAL from the Supreme Court of the Northern Territory of Australia

First Appellant AND: PAUL UNWIN ; Second Appellant AND: ;

Respondent ORDER JUDGES MAKING ORDER : Muirhead, Toohey & McGregor JJ. DATE OF ORDER : 18 April 1984 WHERE MADE : Darwin

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL from the Supreme Court of the Northern Territory of Australia

Respondent REASONS FOR JUDGMENT CORAM: Muirhead, Toohey & McGregor JJ. 18 April 1984

Shortly before dawn on the 15th October 1979 a road train driven by the respondent came into collision with the rear trailer of a stationary road train which had been brought to a halt by the second appellant in the course of his employment with the first appellant who accompanied him at the time. The vehicles under the control of the respondent consisted of a Mack prime mover and two trailers. As a result of the collision the respondent's vehicles sustained damage. The

cost of repairs was agreed in the sum of $40,000. The respondent

suffered consequential damage by reason of temporary loss of

use of these vehicles. He brought an action in the Supreme Court of the Northern Territory to recover his loss on the grounds that it resulted from the negligence of the appellants.

In that action the appellants denied negligence and alleged in the alternative that the respondent's negligence contributed to the collision and his consequential loss.

By reasons for judgment delivered on 21 December 1983 the learned trial judge found that the accident resulted both from the negligence of the appellants and the respondent. Applying the provisions of the Law Reform (Miscellaneous

Provisions) Act his Honour apportioned responsibility for the

occurrence - 75% against the appellants and 25% against the respondent. He assessed the respondent's loss in the sum of $42,534-43 and the respondent thus recovered judgment in the sum of $31,900-82.

The appellants' appeal to this Court was originally based on several grounds, but upon the hearing of the appeal there was no challenge to the learned trial judge's findings of fact nor as to his findings of negligence. The appeal proceeded solely upon the basis that the learned trial judge was in error in apportioning responsibility to the extent of 75% against the appellants. Mr Pauling for the appellants argued that the major apportionment of responsibility should have been ordered against the respondent.

The collision occurred on the Stuart Highwav, a well formed bitumen roadway, about 12 km south of Katherine. The road train driven by the second appellant,a son of the

first appellant, had been travelling north en route to

Darwin. Noticing that the vehicle had "started to pull

heavy" the second appellant stopped the vehicle for the

"purpose of checking the brakes. Under the direction of

his father he brought the unit to rest, the near side wheels on the dirt verge on the western side of the bitumen, the offside wheels on the bitumen. This occurred about thirty minutes before the collision. The men went about checking the unit and transferring some fuel from one tank to another. The vehicle was equipped with operative tail lights and carried portable triangular warning signs. The tail lights were not switched on, the signs were not used. Whilst the men were working on the vehicle a torch was utilised. Leslie Unwin noted the lights of the respondent's approaching vehicle from the south when it was some miles to the south and again shortly before impact. At this stage he took spontaneous action to safeguard his son by pushing him under a trailer and attempted himself to dive under the unit.

The north bound unit driven by the respondent, who was the sole occupant, moved to the right before impact. but it clipped the rear offside corner of the rear trailer unit. The respondent lost control and his units came to rest in the bush on the western side of the road some distance to the north of the appellants! road train. Weather conditions were fine.

The learned trial judge found the bitumen roadway at the point of collision was 8.5 metres wide and that the offside of the stationary road train projected nearly two

metres on to the bitumen. He found the collision occurred

about 5 a.m. when it was "dark, not pitch dark, but with black turning to grey" and that at this time the appellants' vehicle "was unlit, no warning signs being placed near the vehicle.

He rightly found that in these circumstances that negligence against the appellants was established,which he classified as a substantial cause of the collision.

The respondent's account of the accident was that some distance to the south of the accident scene he had dipped his lights due to the approach of a south bound motor car.

He did not elevate those lights prior to the collision. He then saw the stationary unlit road train ahead intruding upon his path. He took action to steer to the right, a reaction which was interrupted when he saw what he believed to be a light ahead of him. He at first .thought he was confronted by another south bound vehicle and then concluded it was a person standing by the offside of the vehicle with a torch. After hesitation he continued his efforts to steer to the right but the collision occurred and he lost control.

The learned trial judge found that the respondent had been driving at a proper speed with headlights on high beam, such lights being dipped upon the respondent's approach to the south bound car. He found the respondent's road train passed this car two or three hundred yards south of the stationary road train. He also found that if the respondent had elevated his driving lights earlier he would have seen the vehicles ahead in time to avoid a collision. He concluded the respondent was probably tired and that his evidence as to

a person shining a torch was mistaken. He believed the

respondent may have seen a flash from a torch as the appellants worked on the vehicle, and that this mistake delayed for a very short time his endeavours to avoid the vehicle ahead.

Upon appeal the respondent did not contést the learned trial judge's findings as to his own negligence. It was submitted on his behalf that the apportionment of responsibility was reasonable and should not be varied. The appellants' counsel also accepted the finding that thev were negligent, but he submitted the apportionment was erroneous and should have attributed 75% of responsibility to the

"(1) Subject to this section, where a person suffers damage as the result of his own fault and partly of the fault of another person or other persons, a claim in respect of that damage is not liable to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

The measuring stick by which a "just and equitable"

apportionment should be reached is not precise - it involves

"the exercise of discretion applied to factual findings. In

Pennington v. Norris (1956) 96 CLR 10 at 16 the High Court,

referring to similar provisions of the Tasmanian Tortfeasors

"The only guide which the statute provides is that it requires regard to be had to

'the claimant's share in the responsibility for the damage'. As to the effect of this see generally an article by Mr Douglas Payne, Reduction of Damages for Contributory Negligence (1955) 18 Mod. L.R. 344%. What has to be done is to arrive at a 'just and equitable' apportionment as between thé plaintiff and the defendant of the

'responsibility' for the damage. It seems clear that this must of necessity involve a comparison of culpability. By 'culpability'

In the present case the learned trial judge's findings of fact were precise and were not the subject of dispute in this Court. Mr Pauling submitted, in effect, on the authority of Warren v. Coombes (1979) 142 CLR 531, that

the learned trial judge was "in no better position" to decide the issue of apportionment than this Court. Even if this were so, we should not interfere with the exercise of his discretion unless we are satisfied that he was wrong, i.e. that the apportionment considered against his findings of fact was clearly in error. It is one thing to upset a finding of fact if the appellate court is of the view that it cannot be

supported by the evidence, it is another to interfere with

an apportionment as to what is just and equitable as between

the parties - a conclusion that involves considerations of

the nature referred to by Lord Wright in "The Macgregor'" (1943) A.C. 197 at 211 -

and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in

of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is

for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment.'"

We respectfully agree on this aspect with the observations of Dunn J. in Muller v. Evans (No. 2) (1982) Qd. R. 209 at 211 -

"The law as stated in Warren v. Coombes (supra) has the consequence, in my opinion, that an appellate court in Australia has morelatitude than an appellate court in England to interfere with an apportionment of liability.

It may interfere notwithstanding that the circumstances are not exceptional. It will not often interfere, because of the matters involved in making an apportionment, matters so clearly explained by Lord Wright in 'The Macgregor' (supra), and because of

the respect and weight which it is required to give to the conclusion of

The learned trial judge did not endeavour to explain the hasis of his apportionment , but the facts he found were sufficient foundation. We agree, upon his findings, that the collision was "caused principally"

by reason of the appellants' negligence. Their action in

leaving the heavy vehicles unlit and otherwise unguarded was, in the circumstances, a substantial departure from a well accepted standard of care. The risk thus created was entirely unnecessary and could so easily have been averted.

The respondent's negligence was in a very different category.

He approached the accident scene driving at a reasonable speed

on his correct side of the road. He dipped his lights, a necessary precaution when he was confronted with the oncoming vehicle. Upon the findings of the trial judge the period he drove without elevating his lights was brief. This fact and some confusion of observation (or more strictly mistaken interpretation of what he saw) as he sought to avoid the vehicle ahead, and due in part to his tiredness, led to the finding of negligence against him. The underlying and predominant cause of the collision was the negligence of the appellants - negligence which was of a continuing nature and which constituted a danger to road users.

We consider the apportionment of responsibility was, in the circumstances, both just and equitable. No error has been demonstrated.

I certify that this and the seven preceding pages are a true copy of the Reasons for Judgment herein of the Court