Carpenter v Harris [2017] QMC 10

MAGISTRATES COURT OF QUEENSLAND CITATION: Carpenter v Harris & Anor [2017] QMC 10 PARTIES: VAUGHAN STEVEN CARPENTER (Plaintiff) v DONALD ROBINSON HARRIS (First Defendant) and LILL AND ALEXANDER PTY LTD (ABN 63 009 815 687) (Second Defendant) FILE NO/S: 1884 of 2016 DIVISION: Magistrates Court PROCEEDING: Civil ORIGINATING COURT: Brisbane DELIVERED ON: 7 June 2017 DELIVERED AT: Brisbane HEARING DATE: 16 May 2017 MAGISTRATE: Magistrate Hay ORDER: 1. The claim against the defendants is dismissed. 2. That within 7 days of the publication of these reasons the parties are to file and serve written submissions on the issue of costs CATCHWORDS: TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOKOUT – CAUSATION – CONTRIBUTORY NEGLIGENCE – ARTIFICIALLY REDUCED BRAKING DISTANCE CASES: Rains v Frost Enterprises Pty Ltd (1975) Qd R 287 March v E & MH Stramere Pty Ltd (1991) 171 CLR 506 COUNSEL: P Van Grinsven for the Plaintiff -- 1 of 6 -- 2 D Kelly for the Defendant SOLICITORS: ULR Lawyers for the Plaintiff Ligeti Partners Lawyers for the Defendant [1] This is a claim for property damage sustained to the Plaintiff’s car arising from a series of collisions that occurred in the early hours of the morning in heavy traffic on the Gateway Bridge. A taxi had stopped unexpectedly in its lane on the bridge. The Plaintiff’s car was the first in a line of two vehicles that had stopped safely behind the taxi. The first Defendant was driving the second Defendant’s truck on the bridge. The truck was following and approaching the stopped vehicles. The Defendants contend that a third party car changed into the lane in front of the Defendants’ truck at the last minute, thereby artificially reducing its breaking distance and causing or contributing to the four impacts that followed. The impacts occurred within a matter of seconds of each other.1 [2] The first impact was between the third party’s car and another vehicle (a Lancer) that had been following the Plaintiff’s car. The first impact pushed the Lancer into the rear of the Plaintiff’s car (the second impact) and then pushed the Lancer out of the line leaving only the third party’s car between the Plaintiff’s car and the following Defendants’ truck. The third impact was the Defendants’ truck hitting the rear of the third party’s car which, in turn, caused the fourth impact, namely the third party’s car hitting the rear right corner of the Plaintiff’s car. [3] The Defendants do not assert that the Plaintiff caused or contributed to the accident. It is accepted that the Plaintiff had been forced to stop his car on the road because of the actions of the taxi he was travelling behind. He did so safely and without incident, as did the Lancer following him.2 [4] The key questions of fact the Court has been asked to be determine are: 1. Whether the third and fourth impacts occurred because the third party’s car (a Magna) changed lanes shortly before the first impact thereby causing the first and second impacts and artificially reducing the Defendant’s breaking distance so as to cause or contribute to the third and fourth impacts; or 2. Whether the Defendant’s truck was travelling too close in any event and would have collided with whatever vehicle was in front of it and, in turn the Plaintiff’s car, regardless of the actions of the third party’s car and, if so, the likely extent of that impact. [5] The date, time, location and parties involved in the accident are not in dispute. Quantum is admitted. The Law [6] There is a special relationship between leading and following vehicles. A following vehicle travelling on a long, straight stretch of road in conditions of good visibility is in a better position than the leading vehicle to observe and respond so as to avoid creating 1 Exhibit dash camera footage 2 Exhibit 6 dash camera footage. See also Amended Defence filed 18 October 2016 at paragraph 3(c). -- 2 of 6 -- 3 a hazardous situation. The extent of this special relationship will turn on the facts of each case.3 [7] The Defendants allege that the third party Magna driver, Mr Granato is both contributory negligent and a ‘concurrent wrongdoer’ within the meaning of that term as defined in the Civil Liability Act 2003 (Qld) and therefore a person whose acts or omissions caused the damage independent of any other person. [8] In determining this matter I have also had regard to the legal concept of novus actus interveniens i.e. the principle to be applied where a later act (the intervening event) breaks the causal connection between the consequential damage sustained and the earlier wrongful act.4 It is well established that the ‘but for’ test should not be applied in such circumstances as the earlier wrongful act is not the cause of the consequential damage.5 Findings of Fact [9] On the question of liability, the Court heard evidence from the Plaintiff, the driver of the Lancer (who also had forward facing dash camera footage), the driver of the Magna and the first Defendant. Evidence was also called from the officer in charge of the traffic investigation. [10] The dash camera footage6 clearly shows the effect of the first, second and fourth impacts. The evidential value of the footage is necessarily limited because it is from a forward facing camera mounted on the dash of the Lancer following the Plaintiff. It does not capture the movements of either the Defendants’ truck or the third party Magna prior to the accident. [11] Surprisingly, given the location of the accident and despite police attending at the scene, there appears to have been no CCTV footage of the accident recovered from cameras on the bridge itself. [12] The only driver who saw the entire accident unfold was the first Defendant. Only he and the Magna driver, Mr Granato were able to give any evidence concerning the movements of Mr Granato’s Magna prior to the accident. Neither the Plaintiff nor the Lancer driver, Mr Krishnan, saw the Magna or the truck prior to the accident. I do not place any weight on the statement given to the police by Mr Krishnan7 in so far as it purports to support Mr Harris’ evidence that the Magna changed lanes immediately before the accident. Based on Mr Krishnan’s evidence in court, it appears he based this opinion on the damage to his vehicle and assumptions he made therefrom (which opinion he is not qualified to give). He was unaware of the location of the Magna prior to impact and did not see it until after the accident.8 3 Rains v Frost Enterprises Pty Ltd (1975) Qd R 287 per Dunn J at pp. 294 and 295 4 The intervening event is pleaded at paragraph 3(c)(xi) and 3(d) of the Amended Defence filed 18 October 2016 5 March v E & MH Stramere Pty Ltd (1991) 171 CLR 506 at 515 6 Exhibit 6 7 Exhibit 3 8 I note that the fact that he unaware of the Magna prior to the impact may be consistent with the contention that it was not travelling behind him for any distance. However it could be that he simply did not notice it. In any event, these observations were not put to Mr Krishnan during his evidence and I place no weight upon them. -- 3 of 6 -- 4 [13] I found that, despite his best efforts, Mr Granato’s evidence on key factual matters was changeable and unreliable, even in his own evidence in chief. There is no question he was doing his honest best, but he simply was unable to recall whether or not he had changed lanes and, if so, when. Given the significant elapse of time between the accident and the trial, this is hardly surprising. [14] In evidence in chief he gave evidence that he could have changed lanes further down the bridge. When asked how long before the accident he changed lanes he gave evidence that “the thing is it could have been a few seconds but I’m not one hundred percent certain that I changed lanes to be honest. So it could have been, so basically a couple of seconds before the collision actually happened whether, I thought I was continuously driving straight.” He gave evidence that he had no recollection of changing lanes. He also gave evidence in chief that he thought he’d remained in the same lane for most of his journey, but because of shock he was unsure. [15] Under cross-examination Mr Granato accepted the proposition that a short time after he moved into the lane, he saw the vehicles and jammed on his brakes and that, because it was a shock, he’d “gone really hard on the brakes and skidded”. Under cross examination he gave evidence that he could not recall which car he hit. He accepted the proposition that he hit the Lancer:“I probably accept that because like I said my car was fishtailing all over the road so I might have hit him on the side there and continued to travel”. [16] The first Defendant, Mr Harris, gave evidence that he was a truck driver with 30 years experience. The second Defendant’s truck was a 25 tonne, 25 meter B-double with 15 gears, in good working condition. It was empty at the time. The engine brake was on meaning that the vehicle had braking assistance when taking his foot was off the accelerator. He gave evidence that he had driven on the bridge 5 days a week for the past 20 years and the traffic was normal for that time of day, namely wall to wall. [17] In evidence in chief Mr Harris gave evidence that “it’s all stopped up here in front of me and I just jammed on the brakes and checked the mirrors to make sure that the trailers were staying straight, because the truck has ABS braking and the wheels of the truck don’t lock up but the trailers do and they’ll sometimes jack knife, and glanced in the mirrors and I was there or, this car just came in… from the right-hand side into the stopped car… They were all stopped and he drove straight into them and bang, bang, you know, it was all there and by then I was stopped. [18] Mr Harris gave further evidence that he was 100 metres away from the vehicles when he realised they were all stopped and got fully on the brakes. He gave evidence that was going to brake in time before the Magna “came out of nowhere.” Mr Harris remained unshaken from his evidence that he would have stopped in time but for the Magna. He was willing to concede both in evidence in chief and under cross-examination that he might have had a bumped the Lancer regardless of the Magna cutting in front of him, although he remain of the opinion that it was unlikely. [19] Mr Harris presented as an honest and reliable witness. He was willing to make appropriate concessions during his evidence. He gave the impression of someone doing his best to recollect the events accurately whilst avoiding guesses and supposition. He readily conceded that he had not mentioned the actions of the Magna to the officer taking his statement at the roadside. Under cross-examination he explained that he tried to -- 4 of 6 -- 5 show them the skid marks on the road9, but the police were not interested as they were in a hurry to get the Gateway Bridge cleared of the traffic hazard. The Plaintiff did not call the officer who interviewed Mr Harris on the day of the accident as a witness at the trial. Therefore it was not possible for the defence to cross-examine that witness on Mr Harris’ version. I find that Mr Harris’ failure to mention the actions of the Magna to police on the day of the incident does not undermine the credibility of his evidence before me. The reasons he gave for not having done so are, in my opinion, plausible given that the incident occurred on a main arterial roadway that was heavy with traffic. I have no doubt the police were using their best endeavours to clear the traffic as soon as possible to ensure no further accidents occurred. [20] Weighing up the evidence I prefer the version of Mr Harris wherever it conflicts with that given by Mr Granato. On Mr Granato’s own evidence he had braked and lost control of his vehicle such that he was fishtailing ‘all over the road’ before he caused the first impact, which in turn led to the second impact. Under cross-examination Mr Harris rejected the suggestion that the Magna was fishtailing before the accident. I accept Mr Harris’ evidence that he had started braking approximately 100 metres before the stopped cars and that Mr Granato’s Magna swerved into the lane in front of him, artificially reducing the truck’s braking distance. Exhibit 3 is photo taken by Mr Harris at the scene of the accident “straight away virtually when I’d stopped.” It shows the truck stopped behind the Lancer. The Magna driven by Mr Granato is pushed up past the right side of the Lancer. In closing submissions both parties conceded that the Magna was hit at an angle by the truck in the third impact. I reject the Plaintiff’s contention that this was because the Magna was fishtailing. Based on my acceptance of Mr Harris’ evidence, I find that it was because the Magna had changed lanes in front of the truck. [21] Based on the evidence before me, there is nothing further that the first Defendant could have been expected to do in the circumstances he found himself in. He was travelling at the recommended speed, consistent with the traffic around him. He had already observed the stopped traffic ahead and had commenced appropriate braking action. He had also fulfilled his duty to the road users around him by checking to ensure that his trailers remained straight and had not started to jack knife. I note that the evasive measures available to a 25 tonne, 25 metre long truck with a risk of two trailers jack knifing, are not the same as those available to a standard car. Hence the need for greater alertness and care when managing these vehicles on our roads. Based on his evidence, I am satisfied Mr Harris exercised an appropriate standard of care in that regard. Further, based on his substantial experience as a truck driver on that roadway, he formed the opinion that he could and would stop in time. It was then that the Magna changed into his lane in front of him and immediately hit the preceding stopped car in the first of the four impacts. [22] The only evidence before me that militates against the Defendants is Mr Harris’ candid admission that at worst he might have bumped into the Lancer in any event, but that he didn’t believe it was likely. There is no evidence before me from any witness to support the contention that he would have collided with the Lancer with sufficient force so as to cause an impact with the Plaintiff’s vehicle. 9 Consistent with the skidding that could be clearly heard when the dash camera recording was played in the courtroom: Exhibit 6. -- 5 of 6 -- 6 [23] Accordingly, I find that, taking into account the special relationship between the first Defendant and the Plaintiff, the first Defendant had fulfilled his duty to the Plaintiff to keep a proper lookout and take appropriate evasive action to avoid the creation of a hazardous situation. [24] For these reasons, I find on the balance of probabilities that: 1. the third and fourth impacts occurred because Mr Granato’s car (the Magna) changed lanes shortly before the first impact thereby causing the first and second impacts and artificially reducing the first Defendant’s breaking distance so as to cause the third and fourth impacts; 2. even if the first Defendant was travelling too close to stop in time, which I do not find, the only evidence before me is that the truck would have bumped into the Lancer. There is no evidence to support the supposition that such an impact would have had any flow on effect upon the Plaintiff’s vehicle. [25] Accordingly, I find wholly for the Defendants and dismiss the Plaintiff’s claim. -- 6 of 6 --