Mikaera v Newman Transport Pty Ltd [2013] NSW CA 464

Facts

In August 2007, the Appellant was the driver of a semi-trailer, which turned off the Pacific Highway, near Coffs Harbour, into a so called truck parking bay, which was essentially a through traffic area with an unbroken white line on each side. Truck drivers park there on a regular basis to rest. The Appellant mistakenly drove into this area, realised almost immediately where he was, but did not want to come back out onto the highway because this would have cut off the driver behind him so he decided to drive through and rejoin the highway at the northern exit of the parking bay area.

At the time the Appellant’s vehicle drove into the truck parking bay area, there were also trucks parked down the left side. That when he was driving through the area, he had to avoid trucks parked on the left as they were obscuring his vision and said he had to come across to the right side of the roadway to allow space between his truck and those parked on the left. That he did not see the Respondent’s parked truck on the right side until the last instant when he came around a bend at the entrance to the parking bay and it was right in front of him. The driver of the Respondent’s truck was asleep at the time. That he was trying to look for a gap to try and squeeze through and tried best to avoid the Respondent’s vehicle, but when he saw he would not be able to, he braced himself for impact.

The Appellant collided with the left rear side of the Respondent’s truck. At the time he initially entered the parking bay, he was travelling about 90km/hr, slowing down to 70km/hr at the time of the impact. The Appellant initially said that he tried to slow down as much as possible, but later acknowledged that he tried to slow down without making much noise because there were people sleeping in their trucks and also that he did not want to jackknife his truck by significantly slowing.

At First Instance

It was found that the Appellant was distracted and his concentration impaired given he ended up going into the truck parking bay. The Appellant was travelling too fast for the road conditions as he drove along the through road, which he initially thought was still the highway and the Appellant was familiar with the area and the truck parking bay. The Appellant acknowledged that at an appropriate speed, his truck could have passed through the truck parking bay staying wholly within the lane markings. That the Appellant overcorrected to the right because of the trucks parked to his left and he could not stay wholly within the roadway markings. However, none of the vehicles parked on the left protruded out into the roadway and the evidence supported that the Respondent’s vehicle, although illegally parked, was well clear of the exit traffic lane and should not have presented a problem for a vehicle following the signs and markings provided.

That being said, the Respondent was aware that there was a real risk in parking in the area where he had and the purpose of the area where he had parked was to warn people not to park there and it was a dangerous thing to do what he did. There was no burden in taking precautions to avoid the risk of harm such as parking elsewhere and it was foreseeable that there was a risk of harm to others as a result of the Respondent’s actions. Therefore, he breached his duty of care and the Appellant would not have suffered injury if the Respondent did not park where he had. The primary cause of the accident however, was the driving of the Appellant in not slowing down as much as he could in the circumstances, he knew the truck parking area was busy and steered his vehicle to the right even though the trucks parked to the left did not encroach onto the roadway. On that basis, found the Appellant two thirds contributory negligent.

On Appeal

The main submissions on appeal were that the Appellant had no choice but to steer to the right side of the road because the vehicles on the left were encroaching on to the roadway, he did all he could to slow down and there was no suggestion at trial that if the Appellant had reduced his speed more rapidly, this would have prevented the accident by enabling him to stop in time. That the Trial Judge did not appropriately apportion the liability between the parties, acknowledging that the Appellant was contributory negligent but not anywhere near to the extent found. That the accident would not have occurred but for the Respondent making the deliberate decision to illegally park where he did giving the Appellant no time to react and no opportunity to avoid the collision.

The Court rejected all grounds made by the Appellant. Notwithstanding that the Appellant complained frequently in his trial evidence about the trucks on the left obscuring his view, it was open on the evidence that the trucks on the left hand side were only straddling the white line not actually protruding over it into the roadway. The Appellant’s vehicle could still proceed along the through roadway, between the white lines safely without colliding with any other vehicle on either side of the road. Agreed with the Judge at first instance that the Appellant was also travelling an excessive speed for the area, knowing and expecting that there would be/were vehicles parked on either side of the road and that he would have to take care in his actions in travelling through the area. All the above led to the Appellant failing to see the Respondent’s vehicle in sufficient time to stop. That it was inevitable on the evidence that the Appellant’s actions were the primary cause of the accident and the apportionment of negligence was not unreasonable.

In addition, Basten JA said the reason the Appellant moved to the right was because of the vehicles parked on the left which were as much to blame as the Respondent. That if they were not parked there when the Respondent parked and if the Respondent did not reasonably expect vehicles to be parked there later (no evidence on either issue was given), the Respondent’s actions could not have warranted much level of contributory negligence at all, thus the apportionment against the Respondent was at the higher end of the range.

Implications

This decision supports that, notwithstanding that a vehicle is illegally parked, where a vehicle approaching a parked vehicle has the opportunity to slow down and/or avoid the parked vehicle by taking reasonable and available opportunities, such failure will be found to be the main reason for the collision. As stated by Basten JA, arguably, notwithstanding the illegal parking, such actions by a driver could not be said to have contributed to an accident if such vehicle was parked off the roadway and it was only due to the actions of the travelling vehicle in going off the roadway, which resulted in the collision. You would expect that there would be a much larger apportionment of blame to an illegally parked vehicle, in circumstances where such parked vehicle protruded actually out onto the roadway and into the path of a vehicle travelling normally between their marked lane. This is given such actions by the driver in illegally parking the vehicle as they did would present a much greater risk of danger to oncoming vehicles and in situations where it would be easy to move the vehicle and/or not park there in the first place.