TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Torts - Negligence - Proof of negligence - Res ipsa loquitur - Generally - Motor vehicle collision - Unexplained failure to exercise control of motor vehicle.

Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493; Government Insurance Office of New South Wales v Best (1993) Aust Torts Reports 81-210, followed.

Judgment Number: [2000] TASSC 2

1 The respondent ("the plaintiff") was injured in a motor car accident on 22 July 1995 and sued the appellant ("the defendant") for damages. The trial of the action was limited to the issue of liability by virtue of a pretrial order. The learned trial judge found in favour of the plaintiff, holding that the defendant was in breach of the duty of care he owed the plaintiff by travelling at an excessive speed in all the circumstances. The grounds of appeal attack this finding; but the plaintiff argues that even if these grounds were made out, the only reasonable inference open on the evidence adduced was that the accident in which the plaintiff suffered his injury was caused by the defendant's negligence, notwithstanding that the particular act of negligence cannot be identified. In other words, he relies on the maxim res ipsa loquitur to sustain the judgment in his favour.

2 The following facts are not in dispute and are taken from the learned trial judge's Reasons for Judgment:

"Just before 7am on 22 July 1995, the plaintiff was driving his car north along the Brooker Highway. He was on his way to work at his butcher's shop in Glenorchy. It was a dark, wet, winter morning. Cars had their lights on and street lights were lit. It had been raining for some time prior to the accident. At the time of the accident and afterwards, there were intermittent periods of drizzle and rain.

The plaintiff was driving at a moderate speed in the outside north bound lane. Traffic was light. He passed under the half clover leaf connecting the highway to the Domain and the Tasman Bridge. He negotiated the gentle left hand curve and was about to enter the straight that leads to the traffic light controlled intersection with Risdon Road. At about this point, the concrete wall that divides the north bound lanes from the south bound lanes comes to an end. At the end of this concrete wall there is a short length of guard rail which continues the division between the north bound lanes from the south bound lanes. Thereafter to the intersection with Risdon Road, those lanes are divided only by a narrow raised pavement.

At the same time as the plaintiff was travelling north on the highway, the defendant was driving his red Holden Monaro coupe south along the outside lane of the Brooker Highway. He, too, was on his way to work. The defendant had travelled from his uncle's home in Moonah and driven along the Risdon Road to its junction with the highway. There he stopped to wait for the red light to turn green. When it did so, the defendant made a right turn onto the Brooker Highway and travelled south in the middle of three lanes. He came up behind a slower vehicle and moved to his right to change into the outside lane, accelerating as he did so. Not long after commencing to pull out, the defendant lost control of his car. The rear end moved to one side of the direction of travel. The defendant attempted to correct this by easing off the accelerator and by steering in the opposite direction. However, the rear of the vehicle then swung in the opposite direction and the defendant was unable to regain control. The defendant's vehicle swung right around and, while still sliding, crossed the dividing footpath and onto the north bound outside lane, directly in front of the plaintiff. The plaintiff was unable to take evasive action and the front of his car hit the left hand rear of the defendant's car. Both cars were then in the outside north bound lane.

After the accident, the defendant, who escaped unscathed, assisted the plaintiff until the ambulance arrived. He believed that he had been negligent. He accepted responsibility for the accident and made arrangements to borrow the money to pay for the damage done to the plaintiff's car. However, just as he was about to hand the money over, one of the police officers who attended the scene of the accident spoke to him. This officer told the defendant that he saw oil on the road surface of the lane way in which the defendant had been driving and it was his belief that the oil had been the cause of the accident. Thereupon, the defendant denied liability to pay any damages and this action was subsequently commenced.

Neither the plaintiff nor the defendant saw any sign of oil on the outside south bound lane of the Brooker Highway. The only evidence concerning the presence of oil on the road surface was given by Constables Pyke and Hossack.

On the day of the accident, these police officers were stationed at the Hobart Uniform Section of Tasmania Police. They were due to start work at 7am that morning and were waiting in the muster room when a call came through that there had been a serious accident on the Brooker Highway. Constables Pyke and Hossack were directed to attend. They immediately left the muster room, took the lift to the basement and got in a car. Constable Hossack drove the car out from under the building and turned left onto Argyle Street. He turned left at the next intersection, drove for two blocks and then turned right onto the Brooker Highway. Constable Pyke said that the road was wet and slippery. On arrival at the scene, the police officers saw that an ambulance had already arrived, as had Sergeant McDonald from the Accident Investigation Squad.

Sergeant McDonald was travelling to work when he heard about the accident on his radio and as it sounded as if people had been seriously injured, he changed direction and went directly to the scene. On finding that the defendant was uninjured and that the plaintiff then appeared not to have been seriously injured, he did not investigate the cause of the accident. However, he did stay to lend a general hand to the other officers who arrived shortly thereafter. Sergeant McDonald said he saw no oil on the road surface, but he made no inspection of the scene of the accident.

Constables Pyke and Hossack said that it was still very dark when they arrived and that rain was falling intermittently. I find that not less than something in the order of ten minutes elapsed between the occurrence of the accident and the arrival of Constables Pyke and Hossack. I find that during that time both south bound lanes were open to traffic, but both north bound lanes were blocked by the damaged vehicles.

Constable Pyke said that a police car from Glenorchy attended the scene of the accident and he believed that it was there when he and Constable Hossack arrived. Constable Pyke said that he believed that the Glenorchy car was then stationary in the north bound lanes.

Constable Pyke said that the north bound traffic held up by the accident was building up and it was necessary to get it moving. In order to do this, the Glenorchy unit crossed to the outside south bound lane (the one in which the defendant had been travelling) some distance to the north of the accident scene and parked there to prevent north bound traffic using that lane. I find that this was done something in the order of fifteen - twenty minutes or so after the accident. Constables Pyke and Hossack then directed the blocked north bound traffic over the dividing pavement into the south bound lane, around the accident and back on to the correct side of the road. Eventually another police car blocked the north bound traffic above the clover leaf and directed all of it over the highway and around to the intersection with Risdon Road via Cornelian Bay.

Constables Pyke and Hossack said that they were using torches they had borrowed from Sergeant McDonald to assist them to direct the traffic. Constable Pyke said that whilst he was doing this he noticed oil on the surface of the road and Constable Hossack said that Constable Pyke directed his attention to it. Constable Pyke said:

'It was actually why [sic ? while] we were directing traffic. We were standing on the median strip when I shone the torch down and identified that there were pools of oil in the right lane and the distance between these pools did vary, with the larger pools anything up to 3 to 4 metres but in between there were intermittent smaller pools of oil that would have been only around a foot in diameter.'

Constable Pyke added that the oil was not visible when the torch was shone at an angle to the road surface, but that 'the rainbow patterns that is [sic] consistent with oil mixing with water became visible when the torch was shone directly down on to the road'.

Constable Hossack, who had been a fuel tanker driver for 7½ years, bent down and gathered some of the material on his fingers to see how thick it was. He said it was not thick and gave off no odour of either petrol or diesel. He said that the mixture he picked up off the road surface was slippery.

By the time the police left the scene over an hour later, the rain had so dispersed the oil that it was not considered by them to be a traffic hazard. Constable Pyke walked about 100 metres down the south bound outside lane towards the Risdon Road intersection and noticed that the spreading pools he had observed continued for the whole of that distance and probably further. Constable Hossack noticed the same thing when he traversed the same lane for a short distance south of the accident scene.

I accept the evidence of the two police officers and find that some oily substance had been deposited on the south bound outside lane of the Brooker Highway. I am unable to make a finding with respect to the exact nature of this oily substance, but do find, in accordance with Constable Hossack's evidence, that it was slippery. Having regard to the distribution of the substance, I infer that it was dropped from a vehicle travelling in the south bound outside lane. I am unable to make any finding with respect to the quantity of the material dropped, but do find that immediately after its deposit on the road surface, it floated to the top of the water on the road, thinned and spread out with the rain that was falling intermittently to the extent that it presented no hazard to traffic by the time the two constables left the scene of the accident.

The problem is that there is no evidence of when the oil was deposited on the road surface. Given the dispersing effect of the rain, I find that it was deposited at some time during a period commencing about half an hour or so before the accident and ending about fifteen to twenty minutes thereafter, when the lane was closed to traffic by the Glenorchy police car. ('The critical period.')

There was no evidence of the volume of south bound traffic during the critical period. A traffic counter stationed on the south bound lanes approximately 300 metres south of the point where the defendant crossed the dividing pavement, counted 241 vehicles passing south along the Brooker Highway between 6am and 7am on the day of the accident. However, although it may be inferred that the higher percentage of these vehicles travelled south towards the end of the measured period, the counter tells no more than it was quite likely that a number of vehicles travelled in the south bound outside lane during the critical period. In these circumstances, I am unable to find that there was oil on the south bound lane prior to the accident. The state of the evidence is such that it is equally likely that it was deposited before the accident, as it is that it was deposited after the accident."

3 The defendant gave evidence to the effect that he was in no hurry that morning and had not consumed intoxicating liquor. He denied travelling at an excessive speed and could not offer any explanation from his recollections of the day of the accident for losing control of his car. He was 20 years old at the time and had a little over three years' driving experience. Mr England, an engineer called by the defendant, gave evidence that in his opinion the movements of the defendant's vehicle immediately before the collision were consistent with loss of control induced by the vehicle unexpectedly traversing discrete patches of oil on the outer south bound lane of the highway. He opined that the defendant's tyres, when changing lanes, may have encountered oil deposited by another car in the centre of the outer lane while other vehicles proceeding directly along that lane may have avoided contact with it. Another engineer, Mr Jamieson, proffered the hypothesis that as the defendant's vehicle had non-standard wide tyres which he said were known to be susceptible to aquaplane on wet roads, this suggested that he was accelerating his vehicle with the drive wheels losing traction due to a combination of the wet road and wide tyres.

4 The learned trial judge said in his Reasons for Judgment:

"Were this a case of res ipsa loquitur and the only evidence the unexplained presence of the defendant's vehicle on the incorrect side of the road, the possibility that oil may have been present on the roadway prior to the accident may prevent an inference being drawn that otherwise would have been drawn from proof of no more than the presence of the defendant's car on the incorrect side of the road. However, this is not a res ipsa loquitur case."

He went on to find that the defendant was negligent because he travelled at a speed which was excessive in the circumstances. If there was sufficient evidence of speeding to justify drawing therefrom the inference of negligence, this would not have been a case of res ipsa loquitur, but if the learned trial judge had declined to draw that inference, or, alternatively, was wrong in drawing that inference, as the defendant contends, the plaintiff nonetheless may still rely upon the fact of the accident to support a finding of negligence. As Windeyer J said in Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493 (at 498):

"If the precise cause of an occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself. The question then becomes whether, having regard to the now known cause, the defendant was negligent. It matters not in such a case whether the cause be established by evidence led for the plaintiff or for the defendant. If, however, the evidence given does not establish to the satisfaction of the jury, or the judge of the fact, what was the cause of an occurrence which could speak for itself, then it can continue to do so, although if the evidence given has raised doubts it may now speak less loudly and less convincingly than before."

5 In Government Insurance Office of New South Wales v Best (1993) Aust Torts Reports 81-210 at 62,098, Clarke JA put the matter this way:

"Where, therefore, a plaintiff proves the happening of an event which would not ordinarily occur without negligence on the part of the defendant an inference of negligence will arise upon which the tribunal of fact is entitled, in the absence of any other evidence furnishing an explanation or supporting other hypotheses, to find a verdict in favour of the plaintiff. Where evidentiary material is advanced to supplement the fact of the happening and that material reasonably supports other hypotheses it will be necessary for the tribunal of fact to consider all the evidence and to weigh the various hypotheses in order to determine whether it is satisfied that negligence should be inferred. It may, of course, do so by deciding that on the probabilities the hypothesis demonstrative of negligence should be accepted or by concluding that all the hypotheses advanced are purely conjectural and negligence should be inferred from the happening itself."

6 Assuming, without deciding, that the learned trial judge's finding of negligence by virtue of speeding on the part of the defendant is insupportable, for my own part I would uphold his conclusion by drawing the inference of negligence from the occurrence of the accident itself. In my view, the primary facts (other than in respect of speed, which can be put to one side for present purposes) are sufficiently established to enable this Court to substitute its own conclusions as to what inferences should be drawn from the primary facts (Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531). The question is whether there is an explanation by the defendant for the occurrence which is consistent with the absence of negligence on his part and leaves the tribunal of fact in a state of equipoise unable to conclude that some unexplained negligence is more probably the cause of the plaintiff's injuries than the innocent explanation suggested. If such be the case, the plaintiff will have failed to discharge the onus of proof cast upon him (Government Insurance Office v Best (supra) at 62,097; Nominal Defendant v Haslbauer [1967] HCA 14; (1967) 117 CLR 448 at 453). But is that the case here? It is submitted by the defendant that the explanation of oil unexpectedly encountered causing the accident without fault on the part of the defendant is at least equally consistent with it being caused by some unexplained negligence to be inferred from the occurrence itself. I find difficulty in accepting this proposition.

7 Oil in a relevant location was observed about 20 minutes after the accident and its presence at the time cannot be discounted. The learned trial judge found it was equally probable that it was there at the time of the accident as that it came to be deposited there at some time in the following 20 minutes. However, there is no evidence that any of the wheels of the defendant's vehicle passed through or was in any way affected by the presence of oil. The precise number of vehicles using that section of road during what the learned trial judge called "the critical period" is not known, but 241 vehicles passed along that general section of the highway between 6am and 7am and a further 522 between 7am and 8am. A letter from Tasmania Police was put in evidence advising that an extensive search of police records had revealed that only this accident had been reported as having occurred in this location on that date. It is reasonable to infer that quite a number of cars passed over the contaminated area when it was most potentially dangerous to traffic without encountering any loss of control. That the defendant lost control of his car because of an unexpected encounter with oil on the wet road surface is one possibility. Were this a case where the criminal standard of proof was required, it could not be dismissed as an unreasonable hypothesis; but proof is required on the balance of probabilities and, in my opinion, that hypothesis is merely a possibility based on conjecture. It is an unlikely hypothesis, having regard to the fact that the defendant's car was the only one to lose control. Without recourse to any finding by the learned trial judge of excessive speed, I am of the view that the most probable cause of the defendant colliding with the plaintiff on the wrong side of the median strip was some unexplained failure to exercise control of his car rather than a fortuitous contact with some oily substance which he alone had the misfortune to happen upon.

8 Whatever be the merits of the defendant's attack on the learned trial judge's findings as to negligence by virtue of excessive speed, the plaintiff was entitled, in my view, to a verdict and that verdict should not be disturbed. I would dismiss the appeal.

9 For the reasons given by the Chief Justice I agree that the appeal should be dismissed. On the hearing of the appeal, counsel for the appellant showed that there are reasons to doubt some of the findings of the learned trial judge. I refer in particular to the findings that the defendant's vehicle careered out of control over a distance of something in the order of 150 metres before mounting the dividing pavement and ending up in front of the plaintiff's northbound vehicle, that any speed in excess of 70 kilometres per hour would be a breach of the duty of care that a driver owed to other users of the road and that the defendant was driving at a speed greater than 70 kilometres per hour. But even if those findings are set aside, the only conclusion reasonably open on all of the evidence is that the most probable cause of the defendant colliding with the plaintiff on the incorrect side of the highway was some unexplained failure on his part to exercise proper control of his vehicle.

10 I have read the reasons for judgment prepared by Cox CJ and agree with them. I would dismiss the appeal.