Kollas v Scurrah [2008] HCATrans 271 (1 August 2008)

Last Updated: 11 August 2008

[2008] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S155 of 2008

B e t w e e n -

WILLIAM GEORGE KOLLAS

Applicant

and

KENNETH ALBERT SCURRAH

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 11.38 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC: May it please the Court, I appear with MR D.J. WILLIAMS for the applicant. (instructed by Garden & Montgomerie)

MR G.J. BELLEW, SC: May it please the Court, I appear for the respondent. (instructed by Ferguson Lawyers)

GUMMOW J: Yes, Mr Gross.

MR GROSS: Your Honours, apart from raising specific errors in relation to breach of duty and causation, the proposed appeal raises what we contended are general issues of public importance, being a public safety issue in that Justice Bell’s judgment, with which Justice Mason agreed, condones or endorses an unduly low standard of care for tow-truck drivers towing heavy loads at extremely low speeds in daylight hours and, in this case, approved of the conduct of the respondent tow-truck driver who created an extreme hazard for following motorists by failing to place and activate flashing hazard lights or a rotating yellow beacon light to immediately warn following motorists of the hazardous situation created by his exceptionally low speed.

Your Honours, the respondent’s combination of three vehicles was a total of 33 metres long, weighed in all 70 tonnes and was travelling at the exceptionally low speed of 35 kilometres per hour.

GUMMOW J: There was 700 metres, was there not, in which the one party could see the other.

MR GROSS: Yes, during which period both vehicles are moving, of course, and your Honours, that was 700 metres of straight. The question of what the intervening vehicles were doing was not established and then, your Honour, placed reliance on the - - -

GUMMOW J: What do you say should have been done?

MR GROSS: What we say is that the defendant should have activated the lights which were on the towed vehicle – when they are connected up you can activate what is called the hazard lights – or should have activated specially placed lights which are placed on the top of the rear of the end towed vehicle as the trailer. The flashing lights would be visible at 200 metres away. Such lights are a classic, well-recognised method of warning of imminent danger and of the need to take urgent steps to avoid what otherwise would be a collision.

Your Honours, we say that the respondent should have taken into account the road environment. It was a freeway where there is a conditioned expectation of free passage where vehicles travel at high speeds, often in a busy setting. It was a wet road anyway, which of course does create more anxieties when people apply their brakes and in a setting where if you have two lanes of traffic with people changing lanes, that can create hazards for other motorists, but also for following motorists. So that basically the trial judge and, we submit, the majority decision in the Court of Appeal paid too much attention to the question as to whether you could see the vehicle ahead and detect that it was travelling slowly, that is, more slowly than other vehicles.

GUMMOW J: This sounds like a very fact specific case, Mr Gross.

MR GROSS: Your Honour, it is indeed fact specific, but the reasoning by both the trial judge and the Court of Appeal invoked standards based on the expectation that a following driver will, in effect, exercise self help and pick up not only that you have a slow moving vehicle ahead of you, but also that you will pick up in sufficient time the full extent of the risks and of the rapidity with which the two vehicles are closing so as to give rise to the hazard.

GUMMOW J: You want a new trial, do you?

MR GROSS: Your Honours, in relation to the orders sought, we have acknowledged, your Honours, that the correctness of Justice Basten’s approach and, your Honours, we have contended that we would accept the finding of contributory negligence, it is the finding of negligence that we challenge, your Honours, part of the case was concerned with the fact that the trial judge had somewhat inconsistently found that the plaintiff had no true recollection of events and then at the same time, particularly on the causation issue, relied on the applicant’s evidence in order to make specific findings as to the opportunities that he had to avoid this particular situation.

Your Honours will see the passage in the judgment where Justice Bell quotes in detail what the trial judge said on this issue. Your Honours, it is in the lengthy passage starting at the top of page 85 extending through into page 86. I will not take your Honours through the highlights of that particular passage but in about half a dozen different places her Honour basically says that he has no true memory or recollection of events and his recollection is unreliable and what he purports to state as his memory is a composition of general practice, what he is told and what he has come to believe. So that you cannot then turn around to make findings against the plaintiff accepting him at his word.

HEYDON J: We can disbelieve self-serving evidence, but accept evidence which contains admissions.

MR GROSS: Not if it is an admission based on upon no true knowledge or understanding of events. If it is a fictitious genuinely composed version of events which has no basis in reality, even a concession that that is what he thinks, cannot have any weight in determining what the true facts are.

HEYDON J: Where does this fit into your argument? If you accept that it was a straight road, clear conditions, the cars ahead could be seen or the relevant vehicle could be seen 700 metres away, what does it matter that this acceptance of part of his evidence and rejection of other parts took place?

MR GROSS: Your Honour, as we read the judgment, I think it is fair to say that Justice Bell only relies upon the issue of reliability or not of the plaintiff’s recollection when it goes to the causation issue. So I do accept in relation to the breach of duty issue we have to deal with the way in which her Honour analysed the matters.

HEYDON J: What is the causation issue?

MR GROSS: In relation to causation, the trial judge took the view that, well, if you - - -

GUMMOW J: It would not have made any difference.

MR GROSS: Yes. That is the end result. The process, your Honour, is, if there is an orange sign saying it is an outsized towed vehicle on the back of the vehicle and you do not see that at 100 metres it is not going to make any difference if in fact what you have is a flashing light which you can see 200 metres away. The problem with that analysis is that a flashing light gives you an immediate warning where you must take urgent action, whereas seeing an orange sign telling you that something is a towed vehicle or that it is oversized suggests a lower speed, but does not indicate that you actually have to take extreme measures to deal with the vast disparity between speeds. It is the closing speed that creates the danger.

Your Honours, the point made by the experts can be summarised in two propositions. When you are coming from behind another vehicle you are seeing a truck, all you are seeing is the back of a truck. You do not immediately recognise, in effect, the extent of the speed disparity. Then the second proposition is that you do not have any frame of reference against which you can compare the speed of what you are looking at as compared to other vehicles. Justice Bell erroneously concluded that there would be other vehicles or there were other vehicles from which the applicant could make the relevant judgement, but the evidence did not so appear.

In any event, her Honour has failed to concentrate on the fact that this is an interpretative judgment that must be made in the space of seconds by someone who is on a freeway where the capacity to work out the difference between a slower vehicle and a dangerous, abnormally slow vehicle involves a time delay, that seeing it at 100 metres, seeing it at 200 metres is not just the equation. So that her Honour really placed too much emphasis upon the concept of the distance away at which you see a particular object.

Your Honours, it is obvious with a fact specific case like this one has to try and anchor it to general principle and, your Honours, we would submit that her Honour did not deal with the matter just as another particular case, but basically acquitted the respondent of negligence on the basis of the reasons which her Honour gave in her judgment on pages 82 and 83. So that despite the expert evidence saying this is a well-recognised hazard and the lights are the appropriate means, her Honour, from paragraph 83 onwards on page 82, lists a series of reasons which just do not stand up.

Her Honour finds at paragraph 83, “The respondent’s vehicle conformed to the conditions of his permit”. That is referring to the conditions in paragraph 42 of the judgment on page 67. All that says is that you have to put up a “TOWED VEHICLE” sign and if it is oversized you put on an “OVERSIZE” sign and, at the bottom of page 67, connect up the lights, this is between sunset and sunrise, activate the lights. Now, those are fairly minimal requirements. So to say you comply with your permit as a truck driver is no more important than saying that you obeyed some other minimal, bare conditions which are stated in the licence.

So the reasons in paragraphs 83 and 84 are the first two reasons, they do not take the matter anywhere because they do not deal with a particular hazard. Paragraph 85, to say the road was wet and there was no obstacle to visibility is beside the point because if you have a wet road, it will create anxieties and hazards related to sudden breaking or changing of direction. It is a relevant factor which influences how you respond when you have not been given a warning and the risks you have to avoid.

Obstacles to visibility involves conjecture because even on the evidence which her Honour did accept, there were intervening vehicles which were in between which moved out the way by changing lanes. It is not a question of obstruction, it is a question of focusing of attention, as you do, when you are driving. You focus on what is ahead of you, naturally, what is at the side, what is even behind, but it is a multi-focus wide-ranging activity and duty, so it is not fair to say there is no obstacle to visibility. In fact, that is really speculation. In paragraph 86, her Honour says the respondent’s vehicle:

was regularly being passed by vehicles that were travelling at a faster speed.

So, that answers the expert’s proposition, he had a frame of reference, but, of course, that is pure speculation, but, in any event, it ignores the fact that it is an interpretation that has to be completed in the available seconds that are left to him in the absence of any lighting warning. Then paragraph 87, the fifth reason, basically her Honour says, well, he had enough information to know that it was travelling slowly, but, of course, the critical thing is, drawing the inference fast enough from the available information, that it is a hazard that has to be avoided as distinct from a mere inconvenience where, because of your superior speed you will go past. Danger arrises because it takes too long to make the critical decision in the requisite time.

Paragraph 88, the sign I have already discussed. It only tells you it is a vehicle being towed and it has an orange sign on saying it is oversized. Such vehicles can still go at an ordinary speed or at the maximum speed or the same speed as all the other vehicles. So all it does is suggest the possibility that the vehicle is travelling more slowly. Both the trial judge and the majority in the Court of Appeal made too much of the orange sign. It is not a warning of the particular hazard. Then finally at paragraph 89:

At a distance of 100m a driver had ample opportunity to take steps to avoid colliding with the respondent’s vehicle.

When you are in a two-lane situation, you have to make judgments as to whether you are going to overtake and, of course, that has to take into account other vehicles and, on the evidence, there were other vehicles in lane two, but that is the normal way you deal with that situation. Applying brakes heavily might be physically possible, but at the same time you are creating hazards for those people behind you, bear in mind they are all in a line of traffic and it is fast flowing traffic with people that are not expecting that sort of sudden emergency to be created. So, we would submit, that merely having a distance of 100 metres which is – the 100 metres by the way is the distance at which you can first read the orange sign on the back of the truck – that is no answer to the overall evidence as to the hazard being an unreasonable one which could have been avoided, as Justice Basten finds, so easily in a conventional manner of having flashing lights.

Your Honours, so far as the causation issue is concerned, I agree that that is a mundane factual issue. There is one aspect of it, your Honours, which I suppose elevates itself to a question of principle, that is, how can you rely against a party on evidence that you have already found to be unreliable because they have no true memory and how does a Court of
Appeal determine such an issue itself on a rehearing when it does not have the capacity to judge fairly how much of an unreliable version can be relied upon? More importantly, when you have conflicting expert evidence, how to reject in a sensible and principled way fairly obvious evidence from experts as to an applicable hazard?

So that the causation issue then comes down to a question of opportunity. That is factual. In our submission. it is a simple matter of looking at the inferences available and if the warning is given at 200 metres by a light on top of a vehicle and you do not have that warning, it is an easy step, as Justice Basten took this step, to infer that causation is established because if there had not been the failure to exercise reasonable care, the injury would have been avoided.

So we would put the question of public importance raised the breach of duty in relation to the public safety issue of condoning unsafe conduct and setting standards. I am not suggesting truck drivers should go around with judgments in the front of their cabin, but these things become known within industry and on the second side, the causation issue in relation to, your Honour, liability. Thank you, your Honours.

GUMMOW J: We do not need to call on you, Mr Bellew.

We see no questions of principle arising on this application, nor do the interests of justice otherwise call for a grant of special leave. Special leave is refused with costs.

AT 11.56 AM THE MATTER WAS CONCLUDED