Emerson v Marco Engeneering Pty Ltd, Emerson, Benge & Anor [1997] QSC 90

50 State Reporting SL C;7/oQO Bureau TRANSCRIPT OF PROCEEDINGS Copyrigh: in this tran~cript is vested in the Crown. Copies thereof must not be made or sold w1thout the Written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVI~ JURISDICTION DERRINGTON J No 1343 of 1993 ~ SHANNAN MARIE EMERSON BY HER NEXT FRIEND MICHAEL RALPH EMERSON and MARCO ENGINEERING PTY LTD and RUSSELL ANTHONY EMERSON AS ADMINISTRATOR OF THE ESTATE OF NORMA JUNE EMERSON (DECEASED) and RAYMOND MITCHELL BENGE and FAI GENERAL INSURANCE CO LTD BRISBANE .. DATE 07/05/97 REVISED COPIES ISSUED State Reporting Bureau Date .&>/ 5/ Plaintiff First Defendant Second Defendant Third Defendant Defendant by Election 0.".\1 It" '" i;:"" '.'. e P"P'''()'';:l ~ , .". IS n0~ IO be resoir! I,: '''' ~·.-~h... OT research and !-::-ivn"'::. ,... tud L ' ... Vl \J..' republicati r '.- .~ -:- '.....•••• ;;;. y ~__________-.:""~__ " , .. r-. Od II/ any other \i'Vel.\' without f. cd : •. :.;,.:>lon. J .--" .....'"----------1 ·111t 1'111"1'. Tlte LIlY CouriS. Celll')!.c Sired. Brisll:IIlC. Q. -t11IlD Tc!t:p"'Hll': (1l7) 32.-17 -IJlifl F:l~: (()7) .12-17 5::3.2 -- 1 of 9 -- 070597 lrj (Derrington J) HIS HONOUR: Order as per draft initialled by me. This is a tragic accident in which the plaintiff's mother, the second defendant, was killed whilst she was driving a Cortina sedan with the plaintiff as a passenger along Bardon Road, Woodridge in what might be described as an inbound direction, roughly an easterly direction. The Cortina sedan had what might be 10 broadly, but almost inaccurately, described as a head-on collision but was more of a sideswipe with a smallish truck travelling in the other direction. It was driven by the third defendant who was the employee of the first defendant, the registered owner of the vehicle. The parties have settled the plaintiff's claim and the only issue to be resolved is the determination of the liability of one or other or both of the drivers of the vehicles. The roadway at the site of the accident had an element of dange:r to it. It involved a change of direction at a fairly 20 30 obtuse angle which could well have benefited considerably by being constructed as a curve. Instead it consisted of a definite angle of two straight roads with an apex that had to 40 be negotiated. It was on the left-hand side of outbound vehicles which in order to remain at a constant distance from the kerb would have to undertake a sharper than normal turn to the left on passing the apex, that is, sharper than if merely negotiating it as a curve. 50 The eyewitnesses in this matter appear to be in some contradiction with each other, but that can be substantially attributed to their points of view, using that term literally, and the relative difficulties that they encountered from their w 2 JUDGMENT -- 2 of 9 -- 070597 lrj (Derrington J) respective positions. They .were all honest and generally reliable wi thin their linli ted opportunities, though in some cases where they had no reason to realise that anything was amiss, there may be some doubt as to whether they were paying particular attention to what they undoubtedly saw. The plaintiff's mother was, as I said, driving inbound on the left-hand side of the road at an ordinary speed. At that 10 point the bitumen surface of the roadway was 6.3 metres wide extending right up to the kerb on her right-hand side. However, on her left-hand side there was a fairly wide gravel 20 shoulder and beyond that a drain. On the other side of the point where the kerb changed direction on the curve of the road, the width of the bitumen was 6.25 metres. Otherwise the general description of the road surface was the same for the whole of its relevant length. As the second defendant approached the corner, the third defendant was driving the first defendant's truck in the opposite direction and close to the kerb, followed by other 30 vehicles containing some of the witnesses. He had just 40 passed the apex of the corner by a short distance when the impact occurred. He was travelling at a normal speed of about 55 kilometres per hour. Unfortunately, it seems that that speed may have been ~ somewhat excessive for the circumstances, most particularly for the difficulty created by the way in which the road was constructed with an angled apex of the kerb rather than a curve. The road surface had a camber in the correct direction so as to counter the effect of· centrifugal force, so that 60 3 JUDGMENT -- 3 of 9 -- 070597 lrj (Derrington J) there itself is no cause evidence to the truck suggest that to veer that out force to its would of right. Unfortunately, however, unless the driver had slowed down and was very careful to keep close to clearly be a tendency of the truck the kerb, there would to find itself moving towards the centre of the roadway. That manoeuvre, of course, is easier on a regular curve than it is where the kerb suddenly changes angle. There is evidence from Mrs Dykes and her son who were 10 travelling behind the Cortina at a distance of approximately 20 50 metres, perhaps a little more. She and her son say that they saw the truck come around the corner and cross the imaginary centre line as it entered into the straight stretch upon which they and the second defendant were driving. Mrs Dykes puts the front of the truck as being a little over the ~ centre line. Her son has it further over, roughly in the centr.e of the second defendant's side of the road. Despite the evidence of the witnesses who were following the truck, whose vision of the location of its front as it went around the corner must have been affected by the bulk of the truck 40 itself ,it is probable that it did veer over to about the centre of the road, though it is impossible to say whether or not it went further than that. When the term "veer" is used, it is perhaps inaccurate. In 50 the present case it should mean merely that the truck's direction did not change sufficiently to match the change in the direction of the roadway by reason of the angled bend. Mrs Dykes and her son had the benefit of a panoramic view of 50 4 JUDGMENT -- 4 of 9 -- 070597 lrj (Derrington J) the matter from the front being a little distance removed from the scene but with clear and direct vision. Their evidence in general is shown to be reasonably accurate because. they were able to say that the second defendant's vehicle at first veered somewhat to its left, though not off the bitumen surface, before then almost immediately veering to the right 10 towards the truck. fairly plainly seem The consistency of that with what would to be the circumstances of the accident shows that they were honest and reasonably accurate observers. The problem with their evidence, however, is their difficulty 20 in judging accurately from the distance at which they were placed and the relative angles involved where precisely on the roadway the truck was being driven in relation to the unmarked centre line. Their evidence, however, is sufficiently strong to establish that at least there was a justifiable impression 30 of the truck's moving over towards and into the general posit~on of the centre line of the roadway as the direction of the road changed at that spot. It then is possible only to say that from the point of view of 40 the second defendant, as the truck came around that angled corner, there would be an impression of its moving at least in towards the centre line of the roadway, if not necessarily across it, that is, diverging outward from the kerb line towards her own approaching vehicle. 50 The extremely strange behaviour of the second defendant's vehicle in veering left and then right towards the approaching truck at the last moment is explained by the presence of oil on the brake pad of its rear wheel. This would have had thew 5 JUDGMENT -- 5 of 9 -- 070597 lrj (Derrington J) effect, when the brakes were applied sharply, of causing the vehicle to pull towards the right-hand side. All of this fits into the total acceptable description of the accident. It would seem that when the second defendant saw the truck come around the corner and from her point of view 10 veering out towards her, she applied the brakes firmly and moved to her left. Unfortunately, the effects of the oil on the brake pad then caused the vehicle to move across towards the truck. 20 The evidence of the expert in relation to the direction of the respecti ve vehicles as inferred from the damage to them is very speculative. It would seem to suggest that the front off side corner of the truck ran at a slight angle into the side of the Cortina, just behind the front off side wheel. Nobody 30 seems to have suggested a course of movement of the vehicles that would justify this, but if it in fact is correct, it is reasonably explicable by the hypothesis that after the Cortina had veered to the right across toward the truck, the driver then tried to steer it back towards her left-hand side and was 40 doing that in the last instant when the impact occurred. That is the only reasonable explanation, having regard to the known course of the Cortina up to that time. As it is something that occurred at the very last moment it would have 50 made no difference in any case to the question of liability here. The foregoing explanation is the most likely conclusion on the evidence. It has some clear implications in respect of W 6 JUDGMENT -- 6 of 9 -- 070597 lrj (Derrington J) liability. The first is that the third defendant had not kept his vehicle as near as practicable to the left-hand side of the roadway; but having regard to the evidence of the witnesses who were following .him, it must be understood that in that respect his general driving was perfectly reasonable and not grossly negligent, and it is likely that in moving at least towards the centre line of the road, if not over it, he was largely put into error by the nature of the corner 10 itself. He was also led into this collision by the unfortunate response of the approaching vehicle driven by the second defendant, which in ordinary circumstances should 20 easily have negotiated the small danger that he set up but which instead exacerbated it. That leads to the question of the negligence of the second defendant. Her conduct in driving her vehicle was perfectly reasonable in every respect except in relation to the probapility that she drove it while there were indications that its brake was defective. In that respect such was the degree of interference with the brakes by the leakage of oil 30 onto the brake pads that according to the expert witness it 40 should have given an indication that something was wrong at an earlier stage when the brakes were applied in an ordinary way. He said that such an indication might not have been given if the brakes were applied lightly, but that if applied ordinarily, there should have been an indication that 50 something was wrong. There must be a broad inference that on a journey such as this the second defendant had occasion to apply the brakes in an ordinary fashion at some time. As with the third defendant 50 7 JUDGMENT -- 7 of 9 -- 070597 lrj (Derrington J) the degree of negligence on her part in continuing to drive in those circumstances would also have been very modest; but in the assessment of negligence in cases like this, it is not a matter of grossness of negligent behaviour but the relativity of negligence as between co-tortfeasors. In respect of the issue as to whether there is liability in a defendant at all 10 there has only to be a departure from the standard of care of an ordinary person, and if there is such a departure at all, then that attracts liability. sides, the apportionment of relativity of their fault. Once there is liability on both contribution depends on the 20 In the present case there would appear to be some liability arising from negligence to the civil standard on both drivers. It must be added that that departure from the standard of care of an ordinary driver is small on the part of both of them, 30 and so the respective shares of contribution under a relative appo~tionment might suggest excessive blame unless the process is properly understood. In this assessment of their relative degrees it would be 40 reasonable to apportion the degree of negligence of the third defendant as representing two thirds of the total responsibility and that of the second defendant as being one third; and I apportion contribution accordingly. In that case there is judgment for the plaintiff against the defendants and the defendant by election in the sum of $1.55 million together with costs to be taxed. 50 I assess the respective degrees of responsibility as between w 8 JUDGMENT -- 8 of 9 -- 070597 lrj (Derrington J) the first and third defendants on the one side and the second defendant on the other side as being two thirds as to the former and one third as to the latter. In those circumstances there will be liberty to the respecti ve defendants and the defendant by election to apply 10 in respect of the question of contribution. 20 30 40 50 60 9 JUDGMENT -- 9 of 9 --