MVA: possibility of a different result does not represent the test for negligence

Schimke v Clements & Suncorp Metway Insurance Ltd [2011] QSC 182

Issues: liability and quantum in a “dependency” claim, where each motorist claimed right of way pursuant to the Transport Operations (Road Use Management—Road Rules) Regulation 1999, s 70, s 93 (“TORUM”); whether the duty of care owed by each is determined by the TORUM regulations.

Quantum was in dispute as to the personal claim for her psychiatric condition as well as the method and individual value of the loss of financial support and services in circumstances where the farm was both a business and personal residence.

Facts: the plaintiff widow brought a claim for her psychiatric injury together with a claim for loss of financial support and services as a result of the death of her husband when his Datsun vehicle collided with the first defendant’s Pajero vehicle and trailer, which jack-knifed when braking was applied heavily on a one lane bridge. The plaintiff contended the deceased had right of way onto the bridge because the “give way” sign (s. 70 TORUM) should only be construed for vehicles on the bridge and not the approach. The first defendant relied on the right of way and despite the “No Overtaking or Passing” signage on his approach to the bridge (s.93 TORUM), whilst towing a trailer.

Applegarth J

[42] As was stated in Sibley v Kais:[7]

“The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.”

The circumstances of this case involved a Give Way sign, not a stop sign. Whether or not the driver of the Datsun yielded right of way depended upon an exercise of judgment by that driver. The fact that the oncoming Datsun appeared to be slowing did not entitle the first defendant to assume in the circumstances that the Datsun would stop at the Give Way sign. All the first defendant says about slowing is that “[h]e looked like he was slowing”. The first defendant does not say anything about the location of the Datsun when he gained this impression, the speed of the Datsun before it appeared to slow or the speed to which it slowed. If the Datsun in fact slowed then this may have been the actions of the deceased in slowing to negotiate a one-lane bridge, rather than slowing to stop at the Give Way sign.

[43] The defendants submit that when he realised that the Datsun was not going to give way the first defendant did everything that he could reasonably have done to avoid the collision. However, this does not address the plaintiff’s essential case on negligence. This is that by the time the first defendant applied his brakes it was too late and the Pajero and its trailer were travelling at a speed that was excessive in the circumstances. In particular, they were travelling at a speed that meant that, under heavy braking, the trailer might jack-knife into the path of the oncoming vehicle.

[44] I consider that the plaintiff has established that the first defendant was negligent on this basis. The first defendant assumed too readily, and unreasonably, that he “had right of way” because the other car had a Give Way sign and that the other car therefore would give way. The evidence does not persuade me that it was reasonable for the first defendant to assume that the other car was going to give right of way. The fact that it appeared to be slowing was not sufficient to make this a reasonable assumption. The Pajero was travelling at a speed that was excessive in the circumstances. Those circumstances include the fact that it was towing a trailer, and emergency braking to avoid a collision with the oncoming vehicle might cause the trailer to jack-knife into the path of the oncoming vehicle.

[45] The first defendant’s negligence was a cause of the collision. The collision occurred because the trailer jack-knifed. In a submission relating to the issue of negligence, rather than that of causation, the defendants submit that the reason the first defendant’s attempts to avoid the collision were not effective was because the deceased, being in a position to appreciate the unfolding emergency, continued on without stopping, slowing or steering his vehicle to avoid a collision. This submission, if accepted, does not mean that the first defendant’s negligence was not a cause of the accident. Instead, it identifies one of the bases upon which the defendants contend that the deceased also caused the collision. The issue has a bearing upon contributory negligence.

[46] I accept that the deceased proceeded across the bridge without stopping. There is no evidence that he slowed down. The first defendant’s statement to the police is silent about the speed at which the Datsun appeared to be travelling as it crossed the bridge and drove along the road at its northern end. The first defendant may have been preoccupied with watching the road ahead of him, and not been in a position to assess the speed of the deceased’s vehicle. On the state of the evidence before me I am not in a position to conclude that the deceased failed to slow down immediately before the accident in order to avoid it. He may have slowed. In any case, during the few seconds before the collision both drivers found themselves in a perilous situation. If the deceased had stopped or slowed down whilst on the one-lane bridge or in the space of several metres on its northern side then he may have placed himself in a situation where a head on collision might eventuate. The better course may have been to exit the one-lane bridge as fast as he reasonably could and move his vehicle as quickly as he safely could to the left hand side of the two lane road. There is no evidence that he did not do so. In fact, the point of collision tends to indicate that he did move his vehicle into this position after leaving the bridge. I do not find that it was negligent of the deceased to continue over the bridge once it became obvious that there was a risk of collision, and that a collision was imminent. Emergency braking on the bridge or on the northern approach to it may have avoided this collision, but it also may have caused a different collision.

[47] The fact that, as matters transpired, the Pajero ended up on the northern side of the bridge does not mean that it would have stopped before the bridge on the northern side under heavy braking had the Datsun not collided with the trailer. One cannot speculate about the extent to which the collision between the Datsun and the trailer as it jack-knifed may have slowed and otherwise affected the movement of the Pajero towards the bridge.

[48] The deceased was negligent in failing to yield right of way in circumstances in which he was in a position to observe an oncoming vehicle and was facing a Give Way sign. However, having driven onto the bridge, he faced a difficult decision whether to proceed across it before the Pajero arrived at it or to bring his car to a halt and possibly collide with the Pajero on the bridge. I decline to find that he was negligent in doing the former.

[49] To adopt what was said in Derek v Cheung in respect of the deceased’s alleged failure to brake while on the bridge, different conduct would have produced a different result, but the possibility of a different result does not represent the proper test for negligence. Having concluded that the deceased acted negligently in proceeding on to the bridge in the circumstances, I am not persuaded that he was negligent in failing to stop or slow down once he was upon it. Once a collision was imminent, it was reasonable for him to attempt to reach the two-lane stretch of road. He did so in circumstances in which the Pajero was taking evasive action, and the deceased would have survived had the trailer not jack-knifed.

[50] The plaintiff concedes that the deceased was contributorily negligent. The defendants submit that if negligence is found against the first defendant, then the plaintiff’s claim should be defeated upon the basis of a 100 per cent reduction.[8] Alternatively, the defendants submit that contributory negligence should be assessed overwhelmingly in the defendants’ favour.

[51] The plaintiff submits that if the deceased was entitled to enter onto the bridge when he did in accordance with the Regulations, then apportionment between the parties would be 85 per cent against the first defendant and 15 per cent against the deceased. In the alternative, the plaintiff submits that if I find that the deceased was not entitled to enter the bridge then the apportionment should be equal, given what she contends is the equal responsibility of the two drivers.

[52] I decline to find that the deceased was entitled to enter on to the bridge. As I have found, a literal interpretation of the Regulations does not exhaustively state the content of the deceased’s duty of care. There is no reason to suppose that the deceased did not see the oncoming Pajero. He would have done so if he had kept a proper lookout. Reasonable care in the circumstances of a one-lane bridge required him to yield way to the Pajero. A reasonably prudent driver would have done so unless it was clear that sufficient time was available to cross the bridge and reach the double-lane road, enabling the vehicles to pass safely, and without requiring the Pajero to brake. The deceased was not entitled to assume that the Pajero would yield right of way to him. Reasonable care required him to assess the risk that the oncoming vehicle would assume that it had right of way and that the deceased would stop near the Give Way sign. A wrong assessment by the deceased of the speed of the oncoming Pajero, the distance it had to travel, his own speed or a combination of these things was apt to put the occupants of both vehicles at risk. In these circumstances, the deceased should have yielded way to the Pajero and it was negligent for him to have failed to do so.

Summary of findings on negligence and contributory negligence

[53] If the first defendant knew before the accident that a Give Way sign faced drivers coming in the opposite direction, then this does not mean that he was entitled to assume that the Datsun would stop at the Give Way sign. The driver of an oncoming vehicle might judge that he was substantially closer to the bridge than the Pajero, could safely cross the bridge before the Pajero arrived at it, and was not required to yield.

[54] If, as I have found, reasonable care by the deceased required him to yield way to the Pajero, then the first defendant was not entitled simply to assume that the driver of the oncoming car would do so.

[55] The first defendant did not act reasonably in assuming that the Datsun would stop at the Give Way sign. He unreasonably concluded that because there was a Give Way sign, the Datsun would stop at it and that he had right of way. His duty to take reasonable care as he approached the single lane bridge was to drive at a speed that would enable him to bring his vehicle and its twin axle trailer to a halt or otherwise avoid a collision should the Datsun proceed across the single lane bridge. This obligation was reinforced by the presence of the No Overtaking or Passing sign. However, well before that sign was reached the first defendant was obliged to take reasonable care in approaching what was signposted as a one-lane bridge. The first defendant failed to take reasonable care to approach the single lane bridge at a speed that would enable him to bring his vehicle and its trailer to a halt or otherwise avoid a collision. He was travelling at a speed that was excessive in the circumstances. He was travelling at a speed that meant that the Pajero and the trailer could not be slowed rapidly without endangering the occupants of the oncoming vehicle, particularly if the trailer jack-knifed as a result of heavy braking.

[56] The first defendant drove at a speed that was excessive in the circumstances when it was not reasonable for him to assume that the approaching car was going to give right of way. The speed was excessive in the circumstances because emergency braking to avoid a collision with the oncoming vehicle might cause the trailer to jack-knife into the path of the oncoming vehicle.

[57] The deceased also failed to take reasonable care to avoid a collision with an oncoming vehicle that was approaching a bridge. Reasonable care in the circumstances of a one-lane bridge required him to yield to the Pajero unless it was clear that sufficient time was available to cross the bridge and reach the double-lane road. The deceased was not entitled to assume that the Pajero would yield right of way to him.

[58] There is no evidence that the deceased approached the bridge at a speed that was excessive in the circumstances. A wrong assessment by him of the speed of the oncoming Pajero, the distance it had to travel, his own speed or a combination of these things caused the deceased to miscalculate the time he had to cross the bridge. His error of judgment about the time that he had to cross the bridge safely led him to fail to yield way to the Pajero when a reasonably prudent driver would have done so. His error of judgment in failing to yield right of way was a serious one. Having negligently failed to yield and driven onto the bridge, the deceased faced a rapidly developing danger. Heavily applying the brakes and stopping on the bridge or to its immediate north risked a head on collision. I am not persuaded that the deceased was negligent in failing to stop or slow down once he was upon the bridge. It was reasonable for him to attempt to reach the two-lane stretch of road. He in fact did so, in part because the Pajero braked heavily. The deceased would have survived had the trailer not jack-knifed. I decline to find that the deceased was also negligent in failing to brake heavily once he was on the bridge, when the risk of collision would have been obvious to him. He may have braked without skidding. But he may not have applied his brakes at all in order to reach the two-lane stretch of road and move to the left side of the road.

[59] The collision was caused by both the negligence of the first defendant and the negligence of the deceased.

Apportionment of liability

[60] In assessing the extent to which damages are to be reduced on account of the deceased’s failure to take reasonable care, I am required to consider what is just and equitable having regard to his share in the responsibility for the damage. This involves a comparison of the degree of departure from the standard of care required by each driver.[9]

[61] The determination of a just and equitable apportionment of liability does not turn on inflexible rules concerning the party whose negligence set the scene for what followed, or which party had the last opportunity to take reasonable care to avoid the collision. All of the circumstances must be considered.

[62] As noted, the plaintiff submits that if I find that the deceased was not entitled to enter the bridge, then the apportionment should be equal, given what she contends is the equal responsibility of the drivers. In oral submissions, Mr Mullins of Counsel argued that both drivers caused the collision through errors of judgment. The deceased’s error of judgment was said to be no worse than the first defendant’s. The deceased probably misjudged the Pajero’s speed, the distance it had to travel before it reached the bridge, or his own speed. The first defendant misjudged what the deceased was doing, assumed that he was going to give way, and proceeded on the basis of a belief that he had right of way, thereby giving up any capacity to stop his vehicle and trailer before the bridge so as to allow a vehicle to come through.

[63] In summary, Mr Mullins submitted that the first defendant’s breach of duty, like the deceased’s, was founded on a failure to appreciate what the other vehicle was doing. The deceased’s error of judgment was that he believed he could enter the bridge because it was clear to do so. Mr Mullins argued:

“Is that any worse an error of judgment than Mr Clements’? Both parties believed it was safe to proceed, based on the conduct of the other vehicle.”

[64] I accept that the negligence of each driver arose, in part, because of errors of judgment about the conduct of the other vehicle and, unreasonably in the circumstances, each driver assumed that he was not required to yield way to the other. However, the task of apportioning liability is not resolved simply by characterising each driver as having committed a similar, serious error of judgment. I do not accept the plaintiff’s submission that this is a case that calls for equal apportionment once I find that the deceased was not entitled to proceed across the bridge in the circumstances. I consider that the deceased’s departure from the standard of care required of him was greater than the departure from the standard of care required of the first defendant.

[65] Even if the deceased’s failure to yield right of way was not a contravention of s 70 of the Regulations, as literally construed, it was a serious departure from the standard to be expected of a driver in his position.

[66] Apportionment is not determined by the obvious fact that if the deceased had yielded right of way the collision would have been avoided, any more than the fact that the collision would have been avoided had the first defendant reduced his speed sooner and kept his vehicle and trailer under control so that he could bring both units to a halt and avoid a collision. Still, the deceased’s negligence was causatively potent because it committed him to the course of attempting to reach the other side of the bridge. Although it was not negligent of him to fail to stop on the bridge, his decision to cross the bridge led him to a further decision to attempt to complete the crossing. His negligent failure to yield right of way literally led him into a danger zone in which he had limited options to avoid a head on collision.

[67] As serious as the deceased’s negligence was in failing to yield way, I do not consider that the apportionment of responsibility should be overwhelmingly attributed to the deceased. He made a serious error of judgment. However, in proceeding past the Give Way sign he was still closer to the northern side of the bridge than the oncoming Pajero. There is no evidence that he was so far south of the Give Way sign that the first defendant assumed on that basis that because the Pajero was closer to the bridge it had right of way. The Datsun did not come to a halt so as to lead the first defendant into the belief that the Datsun was yielding right of way.

[68] The first defendant’s departure from the standard required of him was also serious. He proceeded towards a one-lane bridge, passing a “No Overtaking or Passing” sign when it was not reasonable to assume that the Datsun would stop at the Give Way sign. Once he realised that he was on course for a collision with the Datsun, the first defendant took immediate action to stop. His negligence does not lie in the manner in which he reacted in the last few seconds before the collision. It lies in his earlier failure to have his vehicle and large trailer travelling at a speed at which he could bring them to a halt and avoid a collision if a vehicle coming in the opposite direction reached the bridge and proceeded over it. It was not sufficient in the circumstances to drive at a speed that might avoid an accident if no trailer was being towed. Heavy braking to avoid a collision with an oncoming vehicle on the single-lane stretch of road carried the risk that the trailer would jack-knife into the path of the oncoming vehicle. If the first defendant had reduced his speed much earlier, then the trailer would not have jack-knifed when it did and killed the deceased.

[69] I consider that a just and equitable apportionment involves the attribution of 35 per cent to the first defendant and 65 per cent to the deceased.

[70] The plaintiff’s damages for personal injury are not reduced on account of the contributory negligence of the deceased. However, the balance of her claim for dependency and funeral expenses will be reduced by 65 per cent by reason of the deceased’s contributory negligence.

Quantum

[85] The plaintiff still attends social outings, although not as often as before. She is able to travel to visit her mother. There is not a great difference between the assessments undertaken by Dr Byth and Dr Leong. However, to the extent that they differ, I consider that Dr Byth’s report and his assessment of impairment more closely reflect the evidence at trial concerning the plaintiff’s current impairment and the impairment that she has experienced over the last few years.

[86] The plaintiff acknowledges that the claim for personal injuries is a modest one. The parties accept that her claim for personal injury falls to be assessed under Item 12 of Schedule 4 to the Civil Liability Regulation 2003. The plaintiff submits that the assessment should be toward the middle of the range and that an appropriate assessment is an ISV of 8 or general damages in the sum of $8600. The defendants submit that the assessment should be an ISV of 7 in the sum of $7,400. I assess the plaintiff’s general damages in respect of her diagnosed Adjustment Disorder with Depressed Mood as having an ISV of 8, and assess her general damages at $8,600.

[87] The plaintiff claims special damages in relation to out-of-pocket expenses in relation to prescription drugs and travel to obtain them. She also claims special damages in respect of future treatment and pharmaceuticals. The parties are agreed that past out-of-pocket expenses should be assessed at $2,000, future special damages assessed at $2,000 and interest on past economic loss assessed at 2.5 per cent per annum, which approximates $170.

[88] The plaintiff’s damages for personal injuries accordingly total $12,770.

[92] There are different methods for the calculation of dependency in two-income families. These are discussed in Luntz’s Assessment of Damages for Personal Injury and Death.[12] One method adopted in the cases is described as follows:

“The two incomes are added together, the conventional dependency figure is then applied (66% if there are no children, 75% if there are) and then the survivor’s income is deducted. A similar approach has been adopted in Australia, but is not always followed. The expanded table 9.1 now provided may give better guidance in cases on two income families.”[13]

The table to which the learned author refers is one based upon actuarial analysis of household expenditure surveys. I was referred in submissions to cases involving farms that were operated as a family business.[14] They do not establish any special principles or automatic rule in the case of the loss of a person’s services to the partnership business. Instead, they serve to illustrate the application of the general principle that a loss will be suffered whether or not the claimant engages another person to provide the same services for the business.

[98] Account must be taken of contingencies.[15] Contingencies include the risk of illness, injury, unemployment and other misfortunes, as well as the contingency of good fortune.


[115] The first matter is to identify the nature of her loss. The second is to measure that loss. The loss of material benefit to the plaintiff was the loss of the deceased’s services to the business, to the maintenance of the plaintiff’s home and its environs, and to the maintenance of the partnership’s assets. It also included the loss of domestic assistance. The loss suffered by the plaintiff was the loss of the deceased’s services in and about the farm, which was both a business and a home. The plaintiff reasonably expected that these services would continue. To adopt what was said in Black v Walden: “It was a loss that was suffered whether [the plaintiff] engaged another person to provide the same services for the business or not”.[16] The same can be said in respect of services which contributed to the home and the material support of the plaintiff. These losses were suffered whether the plaintiff engaged another person to provide the same services or not.

Summary of quantum

Plaintiff’s personal injuries

[128] General damages $8,600

Past out-of-pocket expenses (including interest of $170) $2,170

Future treatment and pharmaceuticals $2,000

Total: $12,770

Loss of material benefit/dependency

Past loss $178,600

Interest thereon at 2.5 per cent $15,112

Future loss $338,000

Funeral expenses (including interest of $570) $7,316

Total: $539,028

The claim for personal injuries is not reduced on account of contributory negligence. The other claims are. The quantum of $539,028 is reduced by 65 per cent on account of the contributory negligence of the deceased. The award, so reduced, is $188,660. To this amount should be added the plaintiff’s damages for personal injury totalling $12,770.

[129] There will be judgment for the plaintiff in the sum of $201,430.

Brisbane Barrister – David Cormack

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