Clarke & Mercantile Mutual Insurance (Australia) Ltd v Kwok [1998] QCA 285

[1998] QCA 285 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 2459 of 1998 Brisbane [Clarke & anor. v. Kwok] BETWEEN: WILLIAM JOHN CLARKE (First Defendant) First Appellant AND: MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED (A.C.N. 000 456 799) (Second Defendant) Second Appellant AND: IAN TEKIE KWOK (Plaintiff) Respondent ____________________________________________________________________ McMurdo P. Byrne J. Cullinane J. ____________________________________________________________________ Judgment delivered 22 September 1998 Separate reasons for judgment of each member of the Court, each concurring as to the orders made ____________________________________________________________________ APPEAL ALLOWED. THE FINDING OF THE LEARNED TRIAL JUDGE ON THE ISSUE OF CONTRIBUTORY NEGLIGENCE IS SET ASIDE, AND IN LIEU THE RESPONDENT’S DAMAGES ARE REDUCED BY 20 PER CENT FOR CONTRIBUTORY NEGLIGENCE. ACCORDINGLY ORDER THAT THERE BE JUDGMENT FOR THE RESPONDENT AGAINST THE SECOND APPELLANT IN THE SUM OF $111,823.21, AND JUDGMENT FOR THE RESPONDENT AGAINST THE FIRST APPELLANT IN THE SUM OF $1,134.25. -- 1 of 12 -- ORDER THAT THE RESPONDENT PAY THE APPELLANTS’ COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED. LIBERTY TO MAKE FURTHER SUMISSIONS IN RELATION TO COSTS AWARDED AT TRIAL ON A SOLICITOR AND CLIENT BASIS. __________________________________________________________________ CATCHWORDS: NEGLIGENCE - contributory negligence - personal injuries sustained in motor vehicle accident - collision at intersection - failure to give way - failure to keep a proper lookout - excessive speed Sibley v. Kais (1967) 118 C.L.R. 424 Counsel: Mr W. Martin for the appellants Mr R. Martin for the respondent Solicitors: Tutt & Quinlan for the appellants Jensen & Co for the respondent Hearing Date: 10 September 1998 -- 2 of 12 -- -- 3 of 12 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 2459 of 1998 Brisbane Before McMurdo P. Byrne J. Cullinane J. [Clarke & Anor v Kwok] BETWEEN: WILLIAM JOHN CLARKE (First Defendant) First Appellant AND: MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED (ACN 000 456 799) (Second Defendant) Second Appellant AND: IAN TEKIE KWOK (Plaintiff) Respondent REASONS FOR JUDGMENT - BYRNE J. Judgment delivered 22 September 1998 1 The reasons of Cullinane J. set out the facts germane to this appeal. 2 As the respondent rode his motor cycle towards the intersection where the collision eventually occurred, he was presented with more than ample opportunity to see the car in sufficient time to have taken action which would have avoided the collision. He did not detect the movement of the vehicle into the intersection because he was not watching where he was going; instead he was looking behind or beside him. The respondent did not see the car until just before the collision because of his omission to take reasonable care for his own safety. 3 Liability should be apportioned as Cullinane J. suggests, and there is nothing I wish to add to his Honour's reasons concerning the respective degrees of fault. -- 4 of 12 -- 4 For these reasons, I agree in the orders that Cullinane J. proposes for the disposition of the appeal. 5 I also agree with what Cullinane J. has written concerning the wholly unmeritorious allegation of bad faith levelled against the Judge - a contention which should never have been advanced. -- 5 of 12 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 2459 of 1998 Brisbane Before McMurdo P. Byrne J. Cullinane J. [Clarke & anor. v. Kwok] BETWEEN: WILLIAM JOHN CLARKE (First Defendant) First Appellant AND: MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED (A.C.N. 000 456 799) (Second Defendant) Second Appellant AND: IAN TEKIE KWOK (Plaintiff) Respondent REASONS FOR JUDGMENT - CULLINANE J. Judgment delivered 22 September 1998 1) The appellants appeal against the finding by the learned trial judge that the respondent was not guilty of contributory negligence in relation to a motor vehicle accident in which he sustained personal injuries. 2) The respondent was riding a motorcycle which came into collision with a Ford motor vehicle driven by the first appellant at the intersection of Rode Road and Windsor Street, Wavell -- 6 of 12 -- 6 Heights at about 7.30 a.m. on 5 October 1995. The respondent was riding his motorcycle in a westerly direction along Rode Road whilst the first appellant was intending to drive from Windsor Street across Rode Road into another street, Kinmond Lane, which was set slightly to the east of the alignment of Windsor Street. The respondent had shortly prior to the collision overtaken a truck travelling in the same direction. This was being driven by a man named Warner. A Nissan motor vehicle was approaching the intersection along Rode Road from the east. A man named Roberts was a passenger in this vehicle. 3) It is plain that the respondent did not see the Ford with which his motorcycle collided until the motorcycle was “less than five metres” (ex. 26) from the point of collision, whilst the learned trial judge found that the first appellant did not see the motorcycle at all. The first appellant had a stop sign facing him in Windsor Street and had in fact stopped at the sign before driving slowly out onto Rode Road. Some of the relevant findings of fact appear at pp. 193-194 of the record: “... At about the time when the Ford started to move from Windsor Street the motor cycle was in a position near the front of the truck. In overtaking the truck the motor cycle had gone over the white broken centre line. These facts in my opinion are apparent from Mr Warner’s and the first defendant’s evidence and I accept such evidence. However the collision between the Ford and the motor cycle took place when, as I find, the truck was at least 50 metres east of the point of the collision. Again this is apparent from Mr Warner’s evidence, whose evidence on the point I accept, and it is consistent with the first defendant’s evidence. The first defendant in fact gave evidence that at the point of the collision the truck was 60-80 metres east of the point of the collision. On the basis of the first defendant’s evidence it would appear and I accordingly find that at about the time the Ford commenced its forward movement the first defendant looked to the right and saw the truck and then looked to the left and saw the Nissan. However, I find, also on the basis of the first defendant’s evidence, that the first defendant did not after that look again to the right. I also find that the first defendant did not see the motor cycle before the collision. That in my opinion is clear from the evidence of the first defendant’s admission to [police] and Mr Warner. I accept that evidence. Having regard to the presence of the stop sign the first defendant was in -- 7 of 12 -- 7 my opinion obliged to give way to the [respondent]. Plainly, he did not see the [respondent] before impact and this in my view was the result of his failure to look again to the right - his failure, that is, to keep a proper look out. Further in my view the first defendant by driving partly across Rode Road towards Kinmond Lane failed to give way to the motorcycle in circumstances where he was obliged to do so. The first defendant was therefore in my opinion negligent in these two respects (failing to keep a proper look out and failing to give way) and I find that such negligence was a cause of the collision resulting in loss and damage to the [respondent].” 4) The learned trial judge turned to the question of contributory negligence at p. 195. It is clear that the case for the appellants on the issue of contributory negligence focussed largely upon the claim that the respondent was travelling at a high speed and certain other aspects of his conduct. His Honour considered the evidence of excessive speed which came from the first appellant and Mr Warner and Mr Roberts. He said that he was “unimpressed with this evidence” and set out the reasons why he came to this conclusion. He concluded that the evidence about speed from these witnesses was “very unreliable” and he rejected it. 5) At p. 196 of the record, His Honour concluded his consideration of the issue of contributory negligence: “I am unable to conclude on the evidence that the motor cycle was on the incorrect side of the roadway at the time of the collision. But I am of the view that the allegations of contributory negligence made against the [respondent] - excessive speed, overtaking near the safety zone and the traffic sign about the children and travelling on the incorrect side of the roadway - have no causal connection with the collision. The accident, as I find, still would have occurred even if the allegations of contributory negligence had been proved. The real cause, indeed the sole cause, of the accident was, in my view, the negligence of the first defendant. In my opinion on the basis of these findings the [respondent’s] manoeuvre on his motor cycle presented no danger to anyone so long as no one ahead of the motor cycle drove negligently. The [respondent] in my opinion was not obliged to anticipate negligence on the part of a driver in the position of the first defendant (cf. Haze v. Herbst & Ors, unreported No. 615, 1984, 14.3.86 at pp. 3-4 and Mill v. Pearce & Anor, unreported No. 1790 of 1988, 1.3.90 at pp. 4-5).” -- 8 of 12 -- 8 6) Before this Court, the appellants sought to challenge some of the findings of fact made by His Honour on the issue of speed and particularly the rejection of the evidence of the witnesses the appellants relied upon on this issue. 7) The defence pleaded in the allegations of contributory negligence an allegation that the respondent failed to keep a proper lookout. His Honour does not appear to have dealt with this issue - at least expressly - in his reasons. This may be because the appellants on the issue of contributory negligence were intent on establishing a want of care on the respondent’s part in travelling at a high speed and remaining on the incorrect side of the road for an excessive time, conduct which the appellants contended was exacerbated by the presence of a safety zone. 8) In short, the appellants seem to have advanced a case of foolhardy and dangerous conduct on the part of the respondent which the trial judge was not prepared to accept. I am not persuaded that there is any justification to interfere with the findings in this regard. The findings on the question of speed turned largely, if not entirely, upon the learned trial judge’s evaluation of the witnesses concerned and their reliability and I am unconvinced that any basis for disturbing those findings exists. His Honour found that the other allegations to which I have referred were not causally related to the collision and I do not think that these findings of fact should be disturbed. 9) Nonetheless, His Honour’s findings necessarily give rise to the question of a failure on the respondent’s part to keep a proper lookout and whether had he done so there was the opportunity to take appropriate steps to avoid a collision. The relevant findings in this regard -- 9 of 12 -- 9 may be summarised as follows: (a) At the time the first appellant’s Ford started to move from Windsor Street on to Rode Road, the motorcycle was in a position near the front of the truck, having substantially completed the overtaking manoeuvre. (b) At the time the collision between the Ford and motorcycle took place, the truck which the respondent had overtaken was at least 50m east of the point of collision. 10) The respondent acknowledged in answers to interrogatories which were tendered that he did not see the first appellant’s vehicle until his motorcycle was less than five metres from the point of collision, and the Ford was less than one metre from the point of collision (exs. 26 and 27). 11) The respondent must have travelled some distance appreciably in excess of 50m during the time the first appellant’s vehicle was moving across Rode Road and to the point of collision, but he did not see it until just before the collision occurred. 12) In Sibley v. Kais (1967) 118 C.L.R. 424, the High Court explained the duty which rests upon the driver of a vehicle as it approaches an intersection. It is difficult to reconcile the duty as explained in that case with the passage in His Honour’s judgment at p. 196, which includes a reference to two unreported judgments and which is set out above. 13) The conclusion that the respondent, given the distance over which he travelled and the opportunity he had to observe the first defendant’s vehicle travelling across the intersection and the opportunity this afforded him to avoid a collision had he kept a proper lookout, was -- 10 of 12 -- 10 guilty of negligence which contributed to the collision is, in my view, unavoidable. 14) The first appellant was faced with a stop sign and the obligation to yield right of way. He did not see the respondent’s motorcycle because he failed to keep a proper lookout. Plainly, in my view, he must bear the primary responsibility for the collision which occurred. 15) I consider that a reduction of the respondent’s damages by 20 per cent would appropriately reflect the relative degrees of blame of each of the parties for the collision which occurred and the consequences to the respondent which flowed from it. 16) Before leaving the matter, some mention should be made of a claim raised at the commencement of the hearing in supplementary written submissions which were described as relating to “palpable misuse of judicial position”. In these it was asserted that the findings which His Honour made on the issue of the speed at which the respondent’s motorcycle was travelling and his refusal to find that the respondent was travelling at an excessive speed were “made for the sole purpose of ensuring the success in the action to the [respondent] and in that regard were perverse”. 17) It is sufficient to say that nothing in the evidence or in the argument before this Court remotely provided support for this claim, the serious nature of which hardly needs emphasising. -- 11 of 12 -- 11 18) I would allow the appeal and set aside the finding of the learned trial judge on the issue of contributory negligence and substitute a finding that the respondent’s damages be reduced by 20 per cent for contributory negligence. I would vary the judgment accordingly and order that there be judgment for the respondent against the second appellant in the sum of $111,823.21, and judgment for the respondent against the first appellant in the sum of $1,134.25. 19) At trial, the respondent received his costs on a solicitor and client basis. It may be that the judgment of this Court has implications in terms of the relevant order for costs to be made in favour of the respondent on the trial and the parties should be given liberty to make further submissions to the Court on this issue. 20) I would order that the respondent pay the appellants’ costs of and incidental to the appeal to be taxed. -- 12 of 12 --