Rodney Brett Lansdown v Wth Pty Ltd and Richard Allen Guy [1990] ACTSC 7 (20 February 1990)

SUPREME COURT OF THE ACT

RODNEY BRETT LANSDOWN v. W.T.H. PTY LTD and RICHARD ALLEN GUY
S.C. No. 1731 of 1986
Tort

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Tort - negligence and contributory negligence - no new statement of principle.

Tort - vicarious liability - liability of hire car company - plaintiff's vehicle damaged by hirer of hire car.

Launchbury v. Morgans [1972] UKHL 5; (1973) AC 127

Milkovits v. Federal Capital Press of Australia Pty. Ltd. (1972) 20 FLR 311

Jennings v. Hannan (1968) 89 WN (Part I) (N.S.W.) 64

HEARING

CANBERRA
20:2:1990

Counsel for the Plaintiff: Mr Selby

Counsel for the Defendants: Mr B. Meagher

Solicitors for the Defandants: Pamela Coward & Associates

ORDER

1. There be judgment for the plaintiff against the second defendant in the action in the sum of $23,944.42.

2. There be judgment for the first defendant against the plaintiff in the action.

3. There be judgment for the first defendant against the plaintiff in the cross action in the sum of $2,395.76.

DECISION

This is an action and cross action for property damage to motor vehicles owned by the plaintiff and the first defendant respectively and sustained in an incident in Northbourne Avenue, Canberra on Saturday, 17 May 1986 at about 5.40 p.m. The plaintiff's vehicle was an imported Chevrolet Corvette and the first defendant's vehicle was a Ford Fairlane sedan, then driven by the second defendant who had it on hire from the first defendant. The Fairlane belonged to the Avis Rent-a-Car fleet.

2. It was dark and raining. General visibility was poor, and the headlights of both vehicles were illuminated.

3. Prior to the incident both vehicles were in Barry Drive proceeding east preparatory to turning right into the southbound carriageway of Northbourne Avenue.

4. There were separate sets of traffic lights at the intersection of the eastbound carriageway of Barry Drive and the northbound carriageway of Northbourne Avenue as well as at the intersection of the eastbound carriageway of Barry Drive and the southbound carriageway of Northbourne Avenue. The eastbound carriageway of Barry Drive was divided into three lanes. The inside lane or the lane closest to the median strip was marked with an arrow indicating a right turn. The middle lane was marked with a double-headed arrow indicating both the right turn and a direction straight ahead. The kerbside lane bore only a straight arrow.

5. The broken line separating the inside lane from the middle lane in that section of Barry Drive continued into the intersection and swung right until it met or became the broken line separating the kerbside lane from the middle lane in Northbourne Avenue. That meant that traffic turning right from the middle lane from Barry Drive could proceed only into the kerbside lane of Northbourne Avenue without crossing the lane separation line. Traffic turning right from the inside lane had the option of choosing either the middle or inside lane in Northbourne Avenue, but to get into the kerbside lane in Northbourne Avenue meant crossing the lane separation line.

6. The plaintiff's evidence was that he was aware of the presence of the Fairlane when he was stationary in the middle lane of Barry Drive, waiting to turn right into the southbound carriageway of Northbourne Avenue. When the lights turned green the plaintiff and the second defendant proceeded, both turning right, the plaintiff's vehicle entering the kerbside lane of Northbourne Avenue and the Fairlane initially entering the middle lane.

7. According to the plaintiff, his vehicle proceeded south in Northbourne Avenue at about 30 to 40 kilometres per hour. When about twenty to thirty metres south of Barry Drive, the plaintiff became aware of the Fairlane starting to veer across into the kerbside lane. At that stage the rear of the Fairlane was opposite the front offside wheel of the plaintiff's vehicle and about one metre distant from the plaintiff's vehicle. There was no indication from the tail light area or otherwise of the intention to cross into the plaintiff's lane. The plaintiff braked, swerved to the left and his vehicle struck the kerb. By this time the Fairlane was wholly within the kerbside lane and about one metre ahead of the plaintiff's vehicle. The plaintiff swung sharply to the right but lost control. His vehicle then passed the Fairlane, swung around in an anti-clockwise direction and did a 270 degree turn, so that its rear struck a guard rail on the kerb. The dislodged guard rail struck the Fairlane, which drew to a stop with about ten metres then separating the two vehicles. The point of impact with the plaintiff's vehicle and the guard rail was about eighty-five metres south of the building alignment of the south side of Barry Drive.

8. The second defendant was a visitor to Canberra unfamiliar with the intersections and locality. He thought that he first became aware of the plaintiff's vehicle at the intersection with the northbound carriageway of Northbourne Avenue, but I prefer the evidence of the plaintiff and a witness, Mr. Footner, that the relevant period of time commenced when the two vehicles were stationary at the lights at the intersection with the southbound carriageway of Northbourne Avenue. The second defendant's attention was, according to his own account, distracted by the fact that he was looking for a restaurant in Northbourne Avenue and was deliberately travelling slowly, at a speed he estimated at 20 to 30 kilometres per hour. He assumed that the plaintiff's vehicle, being in the middle lane in Barry Drive, would proceed ahead and not turn right into Northbourne Avenue. Hence, apart from noting its presence, he took no step to keep it under observation. The second defendant did not become aware of the plaintiff's vehicle after commencing the right-hand turn until he heard the loud noise of an accelerating vehicle, saw the plaintiff's vehicle shoot past him, veer in front of him and then apparently lose control and collide as I have already described. The second defendant did not deny that he failed to signal his intention to move into the kerbside lane.

9. The witness Mr. Footner, driver of a car following the defendant's car, was called on behalf of the defendants. He more or less confirmed the plaintiff's evidence, except that he said that the plaintiff did not appear to get out of control until after he had passed the defendant's car and veered in front of it. Dr Osborne, a passenger in the following car, called on behalf of the defendants, gave similar evidence.

10. I have little hesitation in finding want of due care on the part of the second defendant. The action of crossing from the middle lane to the kerbside lane in Northbourne Avenue was one which required the keeping of a proper lookout in order to ascertain whether or not such a manoeuvre was likely to create danger for other vehicles in that lane. The second defendant's attention was clearly directed to other matters, and he made no effort at all to check the position relating to the presence of other vehicles in the lane into which he moved. He gave no signal of his intention to do so. Section 112D of the Motor Traffic Act 1936 (ACT) imposes a duty on a driver of a motor vehicle not to change lanes unless it is safe to do so and contravention of the section is further evidence of negligence.

11. It was submitted by Mr. Meagher on behalf of the defendants that the action of the second defendant in changing lanes did not cause or contribute to the damage to the plaintiff's vehicle. It was submitted that the cause of that damage was the action of the plaintiff himself. However, a defendant does not escape liability simply because the action of the plaintiff contributed towards the collision or damage. It is sufficient if the act or omission of the defendant is a substantial contributing factor, and there is no doubt in my mind that in the present case the defendant's conduct was a substantial cause of the damage to the plaintiff's vehicle.

12. The more difficult question is whether there has been proved any negligence on the part of the plaintiff. The defendants' case is that the plaintiff chose to steer around the Fairlane when he found it impeding his passage in the kerbside lane in Northbourne Avenue, and that, in doing so, the plaintiff failed to keep his vehicle under control, as a result of which lack of control, the plaintiff's vehicle collided with the guard rail. It was the evidence of the second defendant and the two witnesses that the plaintiff's vehicle did not appear to get out of control until it was passing or had passed the defendant's vehicle. However, such observations are largely a matter of opinion and judgment. There is nothing in the evidence to explain satisfactorily why the plaintiff would have lost control of his vehicle if he was simply proceeding straight ahead in the kerbside lane overtaking the Fairlane. I think it more likely that the plaintiff's version on this aspect is correct, namely that as soon as he veered right after colliding with the kerb he lost control of his vehicle. Although it may have appeared to the defendant and his witnesses that at the time the plaintiff's vehicle was passing the Fairlane it was under control, in my view, this was probably not the case. The more likely course of events is, I think, that immediately before his observation that the second defendant's vehicle was crossing into the kerbside lane, the plaintiff's vehicle had started to increase speed, whereas the Fairlane had decreased its speed. If the second defendant had kept to the middle lane as he should have done, the plaintiff's vehicle would have passed him on the left. In that situation a proper standard of care on the part of the plaintiff required closer attention to his own speed and closer observation of the second defendant's vehicle than I think was the case. In his evidence the plaintiff said that the other car was "suddenly in front of me" which was "completely unexpected". That suggests a lapse between the initial awareness of the Fairlane when the two vehicles commenced their turn and the subsequent recognition of an imminent collision some time later. Whilst I do not think that the sudden swerve to the left and striking the kerb was a negligent act on the part of the plaintiff, I think that the violent swerve to the right and acceleration leads to an inference on the balance of probabilities that there was a lack of reasonable care on the part of the plaintiff. I take into account the so-called agony of the moment, but I think that the plaintiff's action must be viewed as having occurred in the context of one or other of two hypothetical situations. The first is that the plaintiff's speed was, as he himself maintained, the same as that of the second defendant. If that were so, it was reduced sufficiently by his braking, for the Fairlane to draw appreciably ahead of him from the time he first observed it until immediately after he took the evasive action of swerving left and striking the kerb. The Fairlane in that situation was continuing to draw ahead of the plaintiff's vehicle and the need to swerve violently to the right and accelerate, in my view, did not arise. The alternative hypothesis, which I tend to think is the more likely, is that the plaintiff's vehicle, as I have already said, was starting to pick up speed and although the action of the plaintiff in braking and swerving to the left had the immediate and successful effect of avoiding a collision and allowing the defendant's vehicle to draw ahead, the speed of the plaintiff's vehicle was such that it put the plaintiff in the frame of mind that a collision could be avoided only by a violent swerve to the right with further acceleration. It was that violent swerve and speed of his vehicle that caused the plaintiff to lose control. I think in the circumstances there was some want of reasonable care on the part of the plaintiff constituted in the first place by his failure to keep the defendant's vehicle properly under observation, supplemented by the speed of his vehicle and consummated by his decision to swerve violently to the right when there was no need so to do. However, the want of care on the part of the plaintiff is overshadowed by that of the second defendant and in this respect I apportion liability as to eighty percent against the second defendant and twenty percent against the plaintiff.

13. Mr. Selby, for the plaintiff, submitted that the plaintiff was not responsible in law for the damage sustained to the first defendant's vehicle by reason of it being struck by the guard rail. I reject that submission. It is, in my view, clearly foreseeable that a driver who allows his vehicle to get out of control so that it collides with an object adjacent to the highway, may well cause that object to be propelled on to the highway resulting in damage to other users of the highway. The exact damage, of course, does not have to be foreseeable, it is merely the sort of damage that a reasonable person in the position of the plaintiff would foresee.

14. It was submitted on behalf of the first defendant that it was not vicariously liable for the action of the second defendant as it had not been shown that the second defendant was on the facts acting as its servant or agent. There is very little evidence about the relationship between the two defendants except, as I have already said, the first defendant was in business as a hirer of motor vehicles and the second defendant had hired the vehicle from the first defendant on the occasion in question. It was submitted on behalf of the first defendant that the situation as a matter of law is governed by the decision of the House of Lords in Launchbury v. Morgans [1972] UKHL 5; (1973) AC 127. This Court will of course give the greatest respect to decisions of the House of Lords where the decision is on a point in issue. But there must be a note of hesitation in the present case. The law relating to vicarious liability for damages caused by motor vehicles has developed differently in the United Kingdom from that in Australia, because of the varying provisions made by statute. However, I think it is true, as Mr. Meagher, on behalf of the first defendant, submitted, that the House of Lords in Launchbury v. Morgans was dealing with a situation which was outside the provisions of the statutes. The case was concerned with the liability of a woman owner to a third party who suffered personal injuries when injured by the woman's vehicle driven by a friend of her husband at a time when she had no knowledge of what was taking place. Lord Wilberforce on p 136 acknowledged:
"..... that traditional concepts of vicarious

liability, founded on agency as developed in
relation to less dangerous vehicles, may be
proving inadequate."

This view appeared to be shared by the other members of the House of Lords. But as Viscount Dilhorne said at p 138, it has never been the common law "that the owner of a chattel is responsible in law for damage done by the negligence of a person to whom he has lent it or whom he has permitted to use it". The House rejected the contrary view expressed by Lord Denning when the case was in the Court of Appeal ((1971) 2 QB 245) that the owner or hirer is responsible for all damage done by a permitted driver in the negligent driving of the vehicle, so long as the driving is for a purpose in which the owner has an interest or concern.

15. Mr. Selby submitted on behalf of the plaintiff that an organization in the business of hiring cars to people is responsible for any damage caused by a hirer during the course of the hiring. That submission accords with the decision of Fox J. in Milkovits v. Federal Capital Press of Australia Pty. Ltd. (1972) 20 FLR 311. However, in that case his Honour drew heavily on the judgment of Denning LJ. in the Court of Appeal before the case went to the House of Lords. In contrast, the decision of the House of Lords emphasises that whilst there may be sound reasons in policy for the establishment of such a proposition, it does not at the present time represent the common law of England. With great respect to Fox J., I do not think that it represents the common law in Australia either. Moreover, authorities in Australia such as Jennings v. Hannan (1968) 89 WN (Part I) (N.S.W.) 64 to the effect that proof of ownership of a vehicle, particularly a commercial vehicle, by a defendant is sufficient prima facie evidence of the driver's agency do not cut across the principle confirmed in Launchbury v. Morgans. Once there is sufficient evidence of the relationship, as there is in the present case, and that evidence does not support the proposition that the vehicle was being driven during the course of employment or by an agent of the owner acting within the scope of the agenty's authority, then the owner is not vicariously liable for the driver's negligence.

16. Accordingly, I must find that the plaintiff's claim against the first defendant fails.

17. It was agreed that the damage sustained by the plaintiff amounted to $19,626.58 and the damage sustained by the first defendant to its vehicle amounted to $1,570.99. After allowing for the second defendant's contributory negligence, eighty percent of the amount claimed by the plaintiff is $15,701.26. Interest is claimed and awarded at fourteen percent and amounts to $8,243.16. That is added to the damages and the plaintiff is to have judgment against the second defendant for $23,944.42 in the action. The first defendant is to have judgment against the plaintiff in the cross action. Interest on the first defendant's damages of $1,570.99 is $824.77 and added to the damages so that the first defendant is to have judgment against the plaintiff in the cross claim for $2,395.76. Subject to any argument, I propose to order that the second defendant pay the plaintiff's costs in the action and that the plaintiff pay the first defendant's costs in the action and in the cross action.