New South Wales Court of Appeal CITATION : Spencer v Balranald Shire Council [2002] NSWCA 102 FILE NUMBER(S) : CA 40486/01 HEARING DATE(S) : 05/04/02 JUDGMENT DATE : 16 April 2002 Graham Edward Spencer, Mark Battistuzzi, Brendan Thomas Simpson and Barcod Pty Ltd (Appellants) PARTIES : Balranald Shire Council (1st Respondent) Raymond Edward Turner (2nd Respondent) JUDGMENT OF : Meagher JA at 1; Young CJ in Eq at 2; Brownie AJA at 52 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT NR6000063/95 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER : J D Hislop QC and A J Abadee (Appellants) COUNSEL : D G T Nock SC (1st Respondent) No appearance for 2nd Respondent (plaintiff) SOLICITORS : Burridge Harris & Flynn (A) Riley Gray-Spencer (1st R) CATCHWORDS : Appeals- When Court should interfere with apportionment made by Judge sitting alone. Torts- Negligence- Motor vehicle- Unexpected dust cloud- Agony of the moment- However circumstances justify finding of negligence. (D) British Fame v Macgregor [1943] AC 197 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Chambers v Jobling (1986) 7 NSWLR 1 Cook v Hawes [2002] NSWCA 79 CASES CITED: Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 Leishman v Thomas (1957) 75 WN (NSW) 173 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 493 Zoukra v Lowernstern [1958] VR 594 DECISION : Appeal allowed in part. (1) In lieu of the judgment against each set of appellants for $118,890.11 there be substituted judgment for $87,186.08. (2) Each party shall bear his or its own costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40486 of 2001 CL NR6000063/95 MEAGHER JA YOUNG CJ in EQ BROWNIE AJA Tuesday 16 April, 2002 SPENCER v BALRANALD SHIRE COUNCIL Judgment 1 MEAGHER JA: I agree with Young CJ in Eq. 2 YOUNG CJ in EQ: At about 6 pm on 21 February 1994, five double deck semi trailers, loaded with cattle were driving in convoy from Bordertown, South Australia to Roma in Queensland via Balranald and Dubbo NSW. 3 The vehicles were proceeding along the Toolybuc/Balranald Road at Kyalite in far South Western NSW, about 37km South of Balranald when No 4 vehicle in the convoy ran into the rear of Vehicle No 3 and then No 5 hit No 4 in the rear. 4 The Toolybuc/Balranald road is a trunk road often used by cattle transport and forms a connection between the Murray Valley Highway and the Sturt Highway being almost a natural prolongation of the Ouyen Highway that leads from South Australia and Victoria. 5 The plaintiff, now 2nd respondent, was driving vehicle No 5. He was severely injured in the collision and sued the local Council, the 1st respondent, the drivers of vehicles Nos 3 and 4 and others for damages in the Supreme Court. 6 The trial of the claim and a cross claim came on for hearing before Hulme J in Lismore in the State's North East. The trial lasted some 3-4 days in mid-2000. His Honour gave judgment for the plaintiff for the reasons he gave on 21 December 2000, supplemented on 15 June 2001. 7 His Honour found that the respondent Council was 55% liable for the damage to the plaintiff, the drivers of vehicles Nos 3 and 4 were each 15% liable and the plaintiff as driver of vehicle No 5 was 15% liable which meant a deduction from his verdict of 15% for contributory negligence. 8 Orders were made on the cross claim by the respondent Council against the owners and drivers of vehicles 3 and 4 reflecting the apportionment of blame determined by his Honour. 9 The appellants are the drivers of vehicles 3 and 4 and the owners of those vehicles. 10 The notice of appeal contains three challenges: (1) against the finding of fact of negligence; (2) as to the finding that the drivers' carelessness caused the plaintiff's damage; and (3) the apportionment of damages. 11 The basal facts were that at the time and place mentioned, the respondent Council had been doing roadworks. This included laying dry dirt on the shoulders and perhaps on the bitumen strip as well of a main road. There was no or no adequate warning of this. The five truck convoy entered upon this stretch of road at about 95 kph. The trucks were usually spaced at about 200 metres apart, but this varied from time to time. The evidence showed that, at least for part of the time prior to the accident, truck No 5 may have been held up in traffic and was one to one and a half miles behind truck No 4. 12 Truck No 1 was driven by the late Mr Lewis. It created such a cloud of fine dust that the vision of the remaining truck drivers was almost completely obscured. The dust was described by a witness and accepted by his Honour to be "very fine, fluffy dust, like talcum powder". There was no reliable evidence as to how far the dust cloud extended along the road, estimates being between 100 and 300 metres. 13 Truck No 2 was driven by Mr Clarke, Truck No 3 by Mr Spencer, Truck No 4 by Mr Simpson and Truck No 5 by the plaintiff, Mr Turner. 14 Mr Simpson called out to Mr Clarke, on his UHF Radio, asking the conditions. Mr Clarke replied "slow them down", that is all he had time to do because he had to concentrate so hard on his own driving. 15 Mr Simpson said that he was roughly 50-60 metres into the dust cloud and travelling at 20-25 kph when he collided with Mr Spencer's truck. He only saw the truck in front of him when he was 5 metres away. Shortly afterwards, he was struck in the rear by Mr Turner's truck. 16 The plaintiff, Mr Turner, said that as he approached the area where the accident occurred, he was about one mile behind the truck in front of him. He heard on his UHF radio that there were roadworks ahead, so he automatically commenced to slow down. He didn't actually see any roadworks signs. Then he saw the dust cloud ahead off him, he entered it, it became just like a blanket and he could not see anything ahead. He thinks he slowed down to about 40 kph. 17 The plaintiff also said that within 2-3 seconds of entering the dust, he realised that it was far thicker than anything he had previously experienced. Visibility was about 3 metres. He applied his brakes hard, but not so hard as to cause the wheels to lock up or to disturb the cattle he was carrying. The accident then occurred with little or no warning. 18 Mr Spencer said to the police "We were going up the road at about 90 km/h …. We had bunched up in the convoy after the bridge. There were probably at least two truck lengths at the most between each truck … . As Darryl Lewis' truck went onto the shoulder of the road, Greg Clarke, who was directly behind him, said over the UHF radio, 'slow down'. We started to slow down. By the time I got to this section visibility was just a couple of feet. I'd been trying to slow the truck down gradually when someone said over the UHF, 'it's straight'. I then concentrated on keeping the truck straight and slow down gradually at the same time to cut down on the dust. It was like a blanket over the windscreen …. (It was like) brown talcum powder. That's exactly what it was like. As the trucks went past, this huge cloud of dust enveloped the road and surrounding area. You could not see a thing. (The next thing to occur was) I get hit from behind. It was a mighty jolt." He said that he only felt one impact. 19 A Mr Lakey, who was too ill to attend the hearing made a statement which was tendered in evidence. He was working with some pistachio trees near the road during the day in question. He noticed that each time a big truck went through big clouds of dust were stirred up. After he knocked off work, he was at his house a little way away from the road. He heard a noise and noticed a big cloud of dust and that there had been a collision. 20 Hulme J, in giving reasons for judgment said as to his assessment of the witnesses that the plaintiff, Mr Turner was genuine and not given to exaggeration in any respect. He accepted Mr Clarke as having both a good memory and clear appreciation of what he was saying and had said. Mr Simpson did not impress as much as Messrs Turner and Clarke, but there was nothing in his demeanour to cause the judge to disbelieve him. Although Mr Spencer was the least impressive witness, the judge made the same comment about him. 21 Hulme J also said that it was not possible to reconcile all the evidence. He considered that, as a general proposition, statements made earlier were more likely to be reliable than those made later. 22 The judge reached his conclusions in [53]–[59] of his reasons. He had no doubt that the Council was negligent and this is not in contest on this appeal. It seems that, unfortunately, the Council water cart had broken down that day, but that does not excuse the negligence. 23 So far as the drivers were concerned, the judge said: "[55] So far as Mr Spencer is concerned, the probability is that, before any occasion arose to slow down because of the dust, he was travelling about 200 metres behind Mr Clarke. That is his estimate recorded in Exhibit E. Clearly the dust was very thick and Mr Spencer would thus have seen Mr Clarke's vehicle enveloped in it about this distance away. Reasonable care in my view requires that, as a general proposition, drivers drive at a speed such that they can pull up within the limits of visibility. There is nothing to suggest that proposition should not apply here. The sighting of the dust cloud and particularly Mr Clarke's vehicle disappearing into it should have led Mr Spencer to slow down substantially. According to Mr Moir's report stopping distance in the case of gentle deceleration for the vehicles was 120-130 metres so there was in fact time to slow down to a speed which conformed with what reasonable care required and to do so in full view of Mr Simpson behind him. Mr Spencer's failure to do so contributed to the collision and the Plaintiff's damage. [56] Similar comments may be made so far as Mr Simpson is concerned. Again I think the probable distance between him and the truck in front was about 200 metres. He said he saw the preceding vehicle disappear into the dust and first saw the latter a couple of hundred metres away. [57] The visibility of the dust cloud to the Plaintiff extended over a far longer distance but because 200 metres was more than sufficient to take any necessary action, I do not see that the difference in visibility matters. His speed also was excessive at the time he entered the dust. [58] As between these three drivers, it seems to me that each was as responsible as the other for the accident. I appreciate that the test so far as the Plaintiff is concerned relates to care for his own safety whereas the liability of the others rests in breach of a duty to the Plaintiff. However, it does not seem to me that this provides an adequate ground for not treating them all as equally responsible. Each acknowledged having a radio warning in some form or other and I think the better view is that it was the one given by Mr Clarke. Mr Spencer and the Plaintiff acknowledge also hearing a radio broadcast to the effect 'it's straight' I would infer Mr Simpson heard it too and that the source was Mr Lewis. [59] On the other hand, I regard the responsibility of the Council as far higher than that of the three drivers to whom I have referred. It created the problem which, furthermore, must have been obvious to its representatives or employees carrying out the road work. Never having experienced such a problem on bitumen roads before, the conduct of the three drivers in not recognising the extent of the hazard is to some degree understandable even if, as I have indicated, there was negligence or contributory negligence. In these circumstances a proper apportionment of responsibility for the accident and damage suffered by Plaintiff is 15% to each of the Plaintiff and Messrs Spencer and Simpson and 55% to the Council." 24 Mr J D Hislop, QC who appeared with Mr A Abadee for the appellants, submitted that his Honour fell into error in endeavouring to apply some general principle that a driver must drive at a speed such as he or she can stop within the limits of visibility. The present facts presented a unique driving experience for the very experienced truck drivers involved. There was no warning that the talcum powder-like dust would almost completely obscure vision. There was a culvert to the left of the road which prevented moving left. To move right might have meant a head on collision. To stop would mean a danger that a following vehicle would collide with one's rear, to brake hard would endanger the cattle and also risk a rear end collision. Thus the only course was to reduce speed and drive straight. Even then, it is to be observed that Mr Lewis in the lead vehicle found that when he emerged from the dust cloud, he was on the wrong side of the road. 25 Mr Hislop QC noted that his Honour did not find that the vehicles should have stopped or, indeed, that anything they did whilst in the cloud of dust was a fault. This was a reasonable conclusion in all the circumstances. Thus, any negligence was in a failure to slow down and/or keep as good a lookout as could be reasonably achieved in all the circumstances. 26 Mr Hislop QC further said that it was too harsh to find men in the above predicament guilty of negligence. He referred to the doctrine of "Agony of the Moment" and cited passages from the judgment of this court in Leishman v Thomas (1957) 75 WN (NSW) 173, 175. 27 As usual, there is force in what Mr Hislop submits. It is true that the drivers were in a difficult situation. It is also true that this sort of case cannot be solved by some rule of thumb such as if you cannot stop within your extent of vision or if you hit the vehicle in front you are almost certainly negligent. 28 However, his Honour never actually applied any such rule of thumb. The principle which his Honour mentioned was a general one as he stated. It is a matter of commonsense which is part of the enquiry as to whether the propositus in any particular case was negligent. 29 His Honour considered the facts and circumstances. He seems to have taken the view that the warning from Mr Clarke to slow down was heard, the vehicles had at least 3 metres visibility and that as a rear end collision occurred, there was excessive speed and failure to keep a proper lookout. The evidence was contradictory, in particular as to how far apart the vehicles were in the convoy and their speeds from time to time. The conclusion that his Honour reached was a view that was quite open to him on the evidence. 30 That disposes of the first two issues in the appeal. The third issue is that his Honour's apportionment of liability cannot stand. 31 That is usually a very hard case to make on appeal. Judgments of the High Court, such as Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 make it clear that a finding on the proper apportionment of liability or blame is not to be lightly upset. 32 Mr Hislop QC rightly pointed out that Liftronic was a jury case. However, Gleeson CJ opened his judgment at p 868 with the following quotation from the High Court's judgment in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 493, where the full High Court said at p 494 that a finding of apportionment: "if made by a judge is not to be lightly reviewed. The task of the appellant is even more difficult when the apportionment has been made by a jury." 33 In Cook v Hawes [2002] NSWCA 79, Hodgson JA, with whom Stein JA and Ipp AJA concurred on this point, acknowledged the distinction between a jury case and the decision of a judge unsupported by reasons and applied the test "so unreasonable as to disclose error". 34 Mr D Nock SC for the Council said that the test was that laid down in this court. 35 Mr Nock SC put that the test was still whether the judge's assessment was glaringly wrong. This test stems from the High Court's judgment in Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, 844 that an appellate court should not interfere unless it "can be seen to be clearly wrong on grounds which do not depend merely on credibility; for example, on the ground that the evidence which was accepted was inconsistent with established facts or was glaringly improbable." See also Chambers v Jobling (1986) 7 NSWLR 1, 19 and Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1. He submits that the present case is not in this category. 36 The matter is awkward. At first blush, the judge's apportionment does seem unduly favourable to the Council. Mr Hislop QC says that the proper proportion would be 80% to the Council, 10% to the plaintiff and 5% each to Messrs Simpson and Spencer. 37 Of course it is not enough that the judge's apportionment of liability is only 68% of what the appellant claims to be proper. The court must itself examine the facts and circumstances and determine whether the learned judge's assessment should be upset, bearing in mind the strictures against so doing set out in the cases. 38 The classic case where the court has interfered with an apportionment is where the judge has given full reasons for his apportionment. In such cases the court can usually see that there is a clear error in that the judge has misapprehended a vital fact bearing on the matter or else a central finding of fact bearing on the apportionment has been reversed on appeal; see British Fame v Macgregor [1943] AC 197; Zoukra v Lowernstern [1958] VR 594, 595-6. 39 The examples given above do not exhaust the classes of case where the judge's apportionment can be overturned on appeal, as is exemplified by Cook v Hawes (supra). 40 The appellants' complaint in the present case does not fall into the class where the judge has given ample reasons and his error is clear. Indeed, the appellants say that the trial judge exposed too little of his reasoning process and what he did expose was contradictory. Mr Hislop QC refers to [59] of the judgment which I have set out earlier where his Honour says, "I regard the responsibility of the Council as far higher than that of the three drivers to whom I have referred." His Honour goes on to say that the conduct of the drivers was to some degree understandable, but he then without further reasoning, apportions the blame 55% to the Council and 45% to the drivers. 41 The only other mention of apportionment is in his Honour's supplemental judgment [11] where he rejects a method of calculation of the drivers' contribution and notes that he intended that such a calculation would mean that the Council would, by that method, pay 4.66 times the amount payable by each of the drivers, whereas his Honour said he decided that the Council should pay 3.66 times such amount. 42 I initially thought that this comment might explain why it was that the judge considered that he was apportioning damages in such a way that the Council paid 3.66 times more than any one driver. However, on closer examination it does not as [59] clearly refers to the Council's liability being far higher than that of the total of the drivers. 43 I am content to adopt the "glaringly wrong" test in this case without pausing to consider whether it is the most appropriate test. Applying this test, it is to be noted that the present task does not involve any reassessment of credibility or departure from the facts as found by the judge. On those facts and on the comments that his Honour made in [59] of his reasons, has he reached a result which is glaringly wrong? 44 Although fully aware of the strictures in the authorities, I consider that the answer to the question I posed in the preceding paragraph is "Yes". In the light of his Honour's determination that the problem was caused by the Council which should bear the major share of the blame, a differential of 10% is quite inappropriate. 45 In my view, the Council was twice as much to blame as the drivers. The Council should thus bear 67% of the damages and the drivers 11% each. 46 Thus, the damages were assessed at $792,600.74. Proceeding in accordance with his Honour's supplementary judgment, 11% to be borne by each of the plaintiff and Messrs Simpson and Spencer (together with the relevant truck owners) is thus $87,186.08. 47 The plaintiff/second respondent did not participate in the appeal. I thus see no need to adjust his net verdict. 48 Accordingly the appeal is allowed in part. It fails on the issue of liability, but succeeds as to the apportionment. In lieu of the trial judge's judgment on the cross claim against each set of appellants for $118,890.11, substitute judgment for $87,186.08. 49 There should be no disturbance of the order for costs of the trial. 50 As to the costs of the appeal, the appellants have lost on one major point of the appeal and succeeded on the other major point, albeit to a small extent. I consider that each party should bear his or its own costs of the appeal. 51 Accordingly the Court orders that: (1) In lieu of the judgment against each set of appellants for $118,890.11 there be substituted judgment for $87,186.08. (2) Each party shall bear his or its own costs of the appeal. 52 BROWNIE AJA: I agree with Young CJ in Eq. 53 I would reserve for another day the question whether the "glaringly wrong" test is applicable, on an appeal against costs, reached in a non jury case. That was not the test applied in Cook v Hawes [2002] NSWCA 79; but the distinction does not seem significant in the circumstances of this case. ********************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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