Special relationship between the “leading car” and the “following car”

Vos v Hawkswell & Anor [2010] QCA 92

 

I refer to my earlier posting regarding the primary findings on fact and the rationale for it by his Honour Searles DCJ.

The appeal principally centred on accepting the factual and credit findings of his Honour Searles DCJ and then applying Rains v Frost Enterprises Pty Ltd [1975] Qd R 28:   

“…as to the special duty and relationship between the “leading car” and the “following car”, particularly in the circumstances of, and given the conduct and actions of the drivers prior to the collision”

His Honour Muir JA delivered the leading judgment with whom their Honours Holmes JA and Atkinson J concurred.

His Honour Muir JA stated the role of an appellate court:

20.

In considering the challenge to the primary judge’s findings of fact, this Court is obliged “to conduct a real review of the trial and … of [the] judge’s reasons”.4 The task of appellate courts is that of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.5

21.

In this process, the appellate court must have “respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not”.6

22.

This was very much a case in which the primary judge’s central conclusions were shaped by his impressions of the truthfulness and reliability of the witnesses. Counsel for the appellant failed to demonstrate that the findings of the primary judge under challenge were “glaringly improbable”, “contrary to compelling inferences” or that the primary judge otherwise failed to make use of his advantage of seeing the witnesses. In my respectful opinion, the contrary is the case. The evidence of Ms Pujolas, in particular, was unshaken by cross-examination and the substance of her account supported the substance of the respondent’s account of what happened. There was nothing inherently improbable about that account and it was an unlikely story to fabricate. The challenge to the primary judge’s acceptance of the evidence of the respondent and Ms Pujolas thus fails.

As to the special relationship between and leading car and following car, his Honour dismissed the formulation of the appellant’s counsel:

31.

Counsel for the appellant made much of the discussion of authorities by Dunn J in Rains v Frost Enterprises Pty Ltd10 concerning the “special relationship” between the “leading car” and the “following car”: the latter normally being in a better position than the former to observe and avoid creating a hazardous situation. The “special relationship” referred to by Dunn J was that between two cars “on a quite long straight stretch of road, in conditions of good visibility”. His Honour’s discussion does not suggest that the driver of the following car is inevitably liable should his vehicle collide with the vehicle in front. There is no such principle. Liability must be determined by reference to the particular facts of each case.11

4 Fox v Percy (2003) 214 CLR 118 at 126.

5 Fox v Percy (supra) at 127, citing Dearman v Dearman (1908) 7 CLR 54 at 564.

6 Fox v Percy (supra) at 127.  

10 [1975] Qd R 287 at 294, 295.

11 Clark v Hall and Anor [2006] QSC 274 at [23].  

Accordingly, the appeal was dismissed.

Brisbane Barrister – David Cormack

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