Lowe, Christine Anne (as the Administratrix of the estate of the Late Anthony David Lowe) v Menzie, Mark

• Jurisdiction: Tasmania
• Judge: Underwood J,Slicer J,Blow J
• Judgment Date: 28 September 2000
• Court: Supreme Court of Tasmania
• Docket Number: FCA 27/2000
• Date: 28 September 2000

[2000] TASSC 132

SUPREME COURT OF TASMANIA (FULL COURT)

Underwood, Slicer and Blow JJ

FCA 27/2000

Lowe, Christine Anne (as the Administratrix of the estate of the Late Anthony David Lowe)

and

Menzie, Mark

Smith v McIntyre [1958] Tas SR 36 ; Tamar Park Pty Ltd v Smith [1999] TASSC 16, applied.

Aust Dig Appeal and New Trial [17]

Supreme Court Civil Procedure Act 1932 (Tas), s45(10).

Appeal and New Trial — Appeal — General principles — Interference with discretion of court below — Particular cases — Other matters — Apportionment of blame in motor vehicle cases.

REASONS FOR JUDGMENT

FULL COURT

Underwood J

1 I agree with the reasons for judgment of Blow J. There is nothing I wish to add.

Slicer J

2 I have had the advantage of reading, in draft form, the reasons for judgment of Blow J and agree with both his reasoning and conclusion. I would dismiss the appeal.

Blow J

3 The appellant is the administratrix of the estate of the late Anthony David Lowe (‘the plaintiff’), who brought an action against the respondent for damages for personal injuries suffered as the result of a motor vehicle accident which occurred on 18 November 1996 on the Styx Road, an unsealed logging road that runs off the Gordon River Road between Glenora and Westerway. The plaintiff was driving a loaded log truck in an easterly direction, bound for Longreach. The respondent was driving a Toyota Hilux 4 wheel drive vehicle in a westerly direction. They passed one another towards the western end of a straight about 2.8 kilometres west of the junction of the Styx Road with the Gordon River Road. They did not collide, but each driver took evasive action to avoid a collision. The wheels on the left side of the plaintiff's trailer got into the soft gravel edge of the road. The plaintiff accelerated to try to maintain momentum and pull the trailer back onto the travelled portion of the road, but was unsuccessful. His trailer rolled over, and tipped the prime-mover onto its side. The learned trial judge held that both drivers were negligent, and apportioned responsibility 80 per cent against the plaintiff and 20 per cent against the respondent. In the notice of appeal, the appellant sought a determination that the respondent was wholly responsible for the accident. At the hearing of the appeal, her counsel resiled from that position, but submitted that the Full Court should substitute a determination apportioning responsibility more favourably to the appellant. He submitted that an apportionment of the order 60:40 in her favour would be appropriate.

4 The plaintiff and the respondent each had UHF radios in their vehicles. They had made radio contact before their vehicles came within sight of one another. The learned trial judge accepted unchallenged evidence of a common practice whereby vehicles entering the Styx Road from the Gordon River Road would, from time to time, use UHF Radio Channel 29 to advise of their positions and enquire as to other users of the road, and yield right of way to loaded log trucks. The plaintiff contended that it was an invariable practice that the driver of an unloaded truck or a car would stop to allow a loaded truck to pass. The learned trial judge accepted that the practice was for unloaded trucks or other vehicles to allow loaded log trucks right of way, but did not accept that the practice involved a rigid requirement that on every occasion the vehicle which gave way would stop at a safe place until the loaded truck passed. That conclusion is unexceptionable, since there was evidence that some drivers, though they always gave way, did not always stop.

5 The learned trial judge made findings as to the dimensions of the road and the vehicles, and the positions and speeds of the vehicles, which were not challenged in this appeal. Those findings were as follows. The travelled portion of the road was 13 feet wide. The full width of the road from edge to edge was 21 feet. The truck was 8 feet wide. The Toyota was between 5 feet and 6 feet wide. When the respondent first saw the log truck, the right side of his vehicle was approximately 4 feet onto the travelled portion of the road, and approximately 2 feet, 6 inches from the centre of the road, while its left side was approximately 2 feet, 6 inches from the gutter, and the truck was in the centre of the road, so that its right side was about 4 feet onto the ‘wrong’ side of the road. The respondent was travelling at about 10 kilometres per hour when he first saw the truck, but the plaintiff was then travelling at about 65 kilometres per hour.

6 The learned trial judge accepted evidence from the respondent that he and the plaintiff had had three radio conversations after the respondent turned into the Styx Road, the last of them occurring after he had begun to drive along the straight on which they met, which was about 220metres long. He accepted evidence from the respondent that he had been travelling at about 60 to 70 kilometres per hour, but had slowed because he was approaching the plaintiff. There was no suggestion that the plaintiff slowed down before or after seeing the respondent's vehicle. Each driver moved his vehicle to the left when the other vehicle came into view. The learned trial judge found that the respondent's vehicle was slowed to about 5 kilometres per hour by the time the vehicles passed one another.

7 The following passages from the learned trial judge's reasons show how he arrived at an 80:20 apportionment:

‘The speed and position of the truck on the road as it came out of the corner was the prime cause for the accident. The plaintiff knew he was closing on the defendant's vehicle. He should not have taken it for granted that the defendant would have completely cleared the road and that it would not be necessary for him to manoeuvre his truck past the defendant's vehicle. The plaintiff wrongly drove as if he was entitled to make, and could safely make, those assumptions.

…

Whilst he had reason to anticipate that the defendant would comply with common practice and pull his vehicle off the road to make way, nothing to that effect was said by the defendant to the plaintiff in their UHF radio conversations. The existence of the common practice did not absolve the plaintiff from responsibility to take reasonable care. The situation is analogous to that of a driver who proceeds on the assumption that another driver will comply with a traffic regulation.

…

As the plaintiff drove through the corner he should have slowed his truck and moved it left from its position straddling the centre of the road so as to be able to avoid any oncoming vehicle. Bearing in mind the size and momentum of the truck, this was particularly important in the interests of other road users.

Whilst I consider that the plaintiff was primarily responsible for the accident, I am satisfied on the balance of probabilities that the defendant's want of care was also a causative factor.

The...