FAI v Curtin & Duangprasert [1997] QCA 241

Court of Appeal (Qld)|1997-08-08|Before: Lee J, Fryberg J, Macrossan CJ

Lee J has prepared reasons which outline the facts and issues arising for consideration in this appeal.

There is no reason to question the trial judge's conclusion that the defendant driver was negligent in allowing his vehicle to collide with the plaintiff's vehicle while it was stationary and straddling the northbound traffic lane of the Logan Motorway. In the argument addressed to us it was not suggested that this finding should be disturbed and in the proceedings below the point was not contested. However, because of the challenge to the judge's finding that the plaintiff herself was not guilty of any contributory negligence, if that finding cannot be maintained it will become necessary to consider the respective degrees of fault which caused the collision. Certain other issues will then arise for consideration before it can be accepted that the defendant is liable to pay compensation to the plaintiff or at least compensation in the amount which has been found below.

The plaintiff was driving a car which like most vehicles nowadays had power assisted brakes but it did not have power steering. The plaintiff claimed that as she drove along the motorway in a southerly direction the engine of her vehicle cut out without warning and its course became difficult to control. The most sympathetic construction of her evidence is that her car unexpectedly pulled to its right. However, in her evidence she did not clearly say that she attempted to turn the steering wheel to the left to counter this tendency. Perhaps she was meaning to say that the steering became difficult to control. Her evidence in the end amounted to a claim that her car, largely of its own accord, just went across to the wrong side of the roadway and stopped there, side on.

The plaintiff's evidence does not clearly exclude the possibility that she panicked when the motor cut out and in that state permitted the car to drift across the road. There was no prior warning of any tendency to similar errant movement on the part of her car and no subsequent similar episode or indication of unresponsiveness to steering action by its driver. The only evidence of mechanical examination undertaken after the accident came from the police officer, Sergeant Neil, who on conducting a test discovered no steering abnormality or any other relevant malfunction in the car's controls. A suggestion by the trial judge that he detected bias in the approach of Sergeant Neil in giving his evidence is not supported by a reading of the transcript. In any event, any such attitude on the part of the police officer cannot convert his evidence, which positively excluded steering abnormality, into an account supportive of the plaintiff's version that some factor suddenly intruded on the night of the collision making her car difficult to control. No evidence tendered at the trial and no appeal to commonsense and experience would support a suggestion that the cutting out of its engine would have rendered a car, unequipped with power steering, temporarily unresponsive to reasonable efforts to control its direction of travel through the steering wheel. Apart from the plaintiff's assertion, the evidence did not support the proposition that with the engine immobilised it would not have remained possible to keep the vehicle to its left and guide it to a stop either off or largely off the traffic way on the left hand side of the roadway, or alternatively across to the other side of the road but off the traffic way and in a relatively unobstructing position with its lights shining ahead.

The judge apparently was impressed with what he thought was the truthfulness of the plaintiff in giving her account of the behaviour of her car but an appeal court is not precluded from interfering with a trial judge's acceptance of a wholly improbable account. For the defendant, contributory negligence had to be shown on the balance of probabilities but not to any standard beyond that. In the real world machines do not develop minds of their own and perform in ways that defy reasonable explanation. Only completely unjustified speculation rather than convincing evidence or any reasonable inferences from it can be appealed to in support of the plaintiff's account. The version that she put forward involving the claim that the position of her stationary vehicle on the roadway resulted without negligence on her part should be rejected as inconsistent with the uncontroverted fact of an absence of malfunction both pre and post accident. Her account should be regarded as being "glaringly improbable" to employ the language which the cases adopt when dealing with the freedom of an appeal court to depart from the findings of a trial judge notwithstanding his advantages in seeing and hearing witnesses: Brunskill v. Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 A.L.J.R. 842, Dawson v. Westpac Banking Corporation [1991] HCA 52; (1991) 66 A.L.J.R. 94 at 99, De Vries v. Australian National Railways Commission (1993) 177 C.L.R. 472 at 479 and Daniels v. Burfield [1994] HCA 35; (1994) 68 A.L.J.R. 894 at 895. The plaintiff's few words of explanation deposed to by Mr Cairns who was present at the scene do nothing to persuade that the plaintiff's explanation should be accepted. It should be concluded that the plaintiff negligently either drove or allowed her car to proceed across to the opposite side of the road and come to a halt side on and blocking the inbound lane.

The defendant's level of negligence considered as a cause of the accident is a matter which allows a fairly straightforward assessment. Although the plaintiff's vehicle was, in conditions of darkness, side on to the defendant as he approached, nevertheless the uninterrupted vision available to him ahead has found to be some 300 metres, subject of course to the limiting factor of the range of his headlights. If he had been keeping a proper look out he would have had a view of the obstruction caused by the plaintiff's stationary vehicle over a considerable length of the roadway ahead of him. Mr Cairns and other drivers who had approached previously from the same direction managed to see the plaintiff's vehicle and avoid it and there was no reason why the defendant driving with care should not also have avoided it.

Looking at the respective degrees of fault, it should be concluded that forty per cent of responsibility for the collision should be attributed to the plaintiff and sixty per cent to the defendant.

When attention is turned not just to the collision between the vehicles but also to the further claimed consequence of mental illness affecting the plaintiff and the loss flowing from that, then neither side wished to suggest that the same proportions of responsibility should not be applied in assessing any damages to which the plaintiff is entitled. In other words, it was accepted that no separate issue affected the proportion of damages recoverable by the plaintiff resulting from her remaining at the scene and positioning herself on the roadway as she did. Once her car came to rest there was no suggestion of further negligent action on the plaintiff's part. It was not asserted that she should not have been on the protected side of her stationary car at the moment of collision whether in the ditch as she claimed or simply on the roadway near Mr Cairns.

It is necessary to turn now to further questions affecting liability and quantum.

An issue arising for consideration is whether the plaintiff's claimed psychiatric illness can be regarded as caused by the defendant's negligence. Questions of causation are to be decided in a practical and commonsense fashion: March v. Stramare [1991] HCA 12; (1991) 171 C.L.R. 506. In the present case the question will depend on the extent to which the medical evidence supports the plaintiff's claim. For the defendant, it was argued on the appeal that the expert evidence supported an attribution of the psychiatric illness to the collision only if the plaintiff's account was to be accepted when she spoke of a truly alarming few moments at the scene lying in a vulnerable position in a ditch beside the roadway while her car, driven by the force of the accident, was pushed forward towards her although mercifully stopping just before reaching her. There were reasons to feel doubt about some of the details she described. To begin with they are not consistent with Mr Cairns' account and in addition it has already been concluded that the plaintiff's account in other respects is not fully acceptable. Nevertheless, it would seem to be an unduly strict interpretation of the medical evidence to construe it as accepting the existence of the collision as being the cause of the plaintiff's psychiatric condition only if the detail of her lying prone in the ditch is accepted. That, of course, is the description of events in the terms that she provided it and so was responded to by the medical experts. Yet on analysis the essence of the medical witnesses' thesis seems fairly to be that the plaintiff, while caught in the immediate vicinity of the collision, suffered a truly great shock from the alarming movement of her car towards her following on the impact. Also, notwithstanding the differences between the versions of the plaintiff and Mr Cairns, if it is a necessary basis for a conclusion that the plaintiff's shock and illness were due to the accident that she should have been prone in the ditch at the relevant time, then that matter has been sufficiently established. Thus far, the trial judge's finding of causation does not call to be disturbed.

Further questions are whether the collision is the only cause of the plaintiff's present psychiatric condition and whether the defendant is obliged to compensate the plaintiff for whatever part of it resulted from the collision.

There will be a duty of care on the defendant if it should have been foreseeable by a reasonable person in his position that some harm or psychiatric illness could be caused to a person at the scene of a forcible collision involving the vehicle he was driving. Liability following from a breach of duty of care depends on foreseeability of this outcome. Whether in a mental shock case like the present there is a further precondition for liability under the heading of "proximity" has been dealt with in other court decisions.

Although the necessity for the existence of an ingredient of "proximity" for there to be entitlement to recover in a number of areas of tort claims for damages for negligence continues to receive attention (see as a recent example Hill v. Van Erp. (1997) 71 A.L.J.R. 487) current Australian authority sufficiently establishes it as a requirement in personal injury including psychiatric illness cases: Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549 and Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243.

There are strong reasons for thinking that the requirement of proximity is satisfied here.

There was "proximity" in the sense of time and place between the plaintiff near her stationary car on the one hand, and on the other the defendant approaching in his vehicle. It should be accepted that a duty of care arose and that it was breached. It was not suggested in argument that the defendant could escape liability because the plaintiff suffered no compensable physical injury in the collision, cf. Page v. Smith [1995] UKHL 7; (1996) 1 A.C. 155.

The defendant, had he been keeping a proper look out, should have foreseen that there could well be a person or persons in or in the vicinity of the stationary vehicle ahead of him on the roadway and that he, she, or they might suffer great alarm and temporarily significant shock which might be followed by more permanent illness should he forcibly collide with that stationary vehicle. The foreseeability requirement which marks the limit of recoverable damage is a factor additional to the need for causation to exist, but it too should here be regarded as satisfied. There is reason to think that the plaintiff was a person vulnerable to mental illness induced by shock but for the purposes of her entitlement to recover damages she should not be regarded as falling outside the range of normal. The consequence of her suffering mental illness remained within the ambit of reasonable foreseeability and did not fall into some category of events far fetched or fanciful, cf. Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40. In Australia there is some authority for the proposition that a negligent defendant will be liable for a consequence of mental illness only if it is a "normal" outcome: see Jaensch v. Coffey (supra) at 568 per Brennan J and cf. per Gibbs CJ at 556, per Murphy J at 568 and per Deane J at 610. A number of other relevant cases are reviewed in Wodrow v. The Commonwealth (1993) 45 F.C.R. 52. The English approach appears to be different: see Page v. Smith (supra).

Nevertheless, a question is how much of the claimed continuing disablement of the plaintiff is due to the action of the defendant so as to attract an entitlement to compensation. The judge has found, in effect, that before this collision the plaintiff was an ordinarily robust and not unduly vulnerable person. But the judge had no advantage in coming to that conclusion apart from his opportunity to observe and form an assessment of what appeared to him to be an honest and hence reliable witness giving an account of her claimed pre-collision fortitude and good mental health. There was no corroborative evidence forthcoming on these aspects. This means that the judge's assessment was wholly a projection from the impression of honesty he received from the plaintiff. Yet there is reason to doubt the accuracy and reliability of the evidence the plaintiff gave of some of the details of events on the night of the collision and there is an implication (although the judge did not accept it) arising from the evidence Mr Cairns gave concerning the plaintiff's disproportionately unbalanced state at the scene prior to the collision. The most telling consideration, however, which cannot be ignored is not only the significant collapse which overtook the plaintiff immediately after the collision although she had not been harmed physically, but also the seriousness of the continuing consequences of that initial shock.

The judge's finding that the plaintiff was not an unusually vulnerable person prior to the accident was one which disregarded what seems to be an obvious conclusion of significant vulnerability indicated by the plaintiff's post-accident history. A plaintiff liable to suffer the claimed consequences from an episode of the kind described in the evidence was one obviously highly likely to suffer similar adverse outcomes from a number of life's events, of which travelling within a motor vehicle which actually collided with another is merely one example out of a number of temporarily alarming or stressful episodes that can be envisaged. Anyone who suffered the consequences the plaintiff did after an incident of the kind that occurred on 3 January 1991 was obviously greatly at risk. Life's vicissitudes were likely to place great emotional demands upon this vulnerable plaintiff and for this reason alone the quantum of damages assessed by the judge, who disregarded this factor, should be substantially discounted. This being said, I am content to accept the reduced quantum at the level stated by Lee J in his reasons. In doing this I regard the plaintiff's vulnerability as an additional reason to support that reduction but I would make no further discount.

I would, however, make a reduction from the assessment of $99,602.63 because of the plaintiff's forty per cent responsibility for her own loss and setting aside the judgment entered below give judgment for the plaintiff for $59,761.58 with costs of the trial. The appellant should have an order for its taxed costs of the appeal.

This is an appeal by the defendant by election against a judgment given in the District Court on 12th February 1996 in favour of the respondent ("plaintiff") in her action for damages for personal injuries following a motor vehicle collision between the defendant's vehicle and her stationary vehicle on 3rd January 1991. Her claim was for damages for nervous shock, which she said she suffered as a result of the accident. It was characterised as post-traumatic stress disorder. Even though her vehicle was damaged and she scraped the back of her knee and felt a jarring at the time, she did not claim damages for physical injury or property damage. Judgment was given in her favour in the sum of $147,882.63 with costs. The appellant appeals against both liability and quantum.

The grounds of appeal are numerous and are set out at pp.269-277 of the record. The main thrust of the appeal is against findings of fact by the learned trial Judge. Whilst there was no attack on the findings of negligent driving by the defendant, the central contention was that the trial Judge should not have accepted the plaintiff's version of events relating to her alleged position in a drain by the roadside in an attempt to shelter herself from the rapidly approaching defendant's vehicle which collided with her vehicle, then in a stationary position on its incorrect side of the roadway, thrusting it towards and narrowly missing her whilst she was in the drain. She claimed that this caused her intense fear for her life and the resulting post-traumatic stress disorder. It was submitted that if the plaintiff's version had been rejected, other evidence compelled the conclusion that she was in a position of safety some distance away and protected by a barricade constituted by her stationary vehicle so that she would not have been able to show that any nervous shock suffered by her was reasonably foreseeable by the defendant, particularly in the absence of any physical injury to her. The effect of that submission was that she would not have been in the reasonable contemplation of the defendant as a person who might suffer injury by nervous shock: see e.g. Bourhill v. Young [1942] UKHL 5; [1943] A.C. 92, where a plaintiff failed because she was 45 feet away and separated from the point of impact by a stationary tramcar. If the plaintiff's version was rejected, it was said that no relationship of proximity and no duty of care existed.

It was further submitted that even if the plaintiff's version of events was accepted, two factors should operate so as to exclude a duty of care. On the other hand, if these further factors were decided against the appellant, it follows from the apparent concessions by Mr Hampson Q.C., viz. that a finding of nervous shock was possible if the plaintiff's version of events was sustained (30) and that her alleged expression of intense emotional shock was a finding of fact (22, 38-40), that injury by nervous shock was reasonably foreseeable, subject to the questions of contributory negligence and damages. These two factors are:-

(1) The defendant could not have reasonably foreseen damages for nervous shock flowing to the driver of a vehicle who had created a hazard or barrier on the roadway and who remained in close proximity to that barrier whilst knowing that other vehicles were bearing down upon it and likely to cause a collision, rather than moving to safety. It was said that the alleged tortfeasor would be justified in thinking that no one would be lurking around the vehicle so that injury of any kind and in particular psychiatric injury to such person would not be reasonably foreseeable. It was also said that there was no relevant relationship of proximity between the plaintiff and the defendant (para.10 of outline). This submission is somewhat similar to that raised above had the plaintiff's version been rejected viz. the plaintiff was not a foreseeable victim who should have been (as opposed to actually being) outside the area of physical danger and not in the reasonable contemplation of the defendant: Bourhill v. Young.

(2) Some limit should be placed on claims for damages for nervous shock by persons who merely witness an accident or by those who experience a near miss and who are not physically injured by the collision itself. It was said that it was easy for such claims to be made and that a defendant could not have foreseen that a person of ordinary fortitude would react in this way. Reference was made to implied policy limitations recognised in such cases as Jaensch v. Coffey [1984] HCA 52; (1983-4) 155 C.L.R. 549; Chester v. Waverley Corporation [1939] HCA 25; (1939) 62 C.L.R. 1; Mount Isa Mines Ltd v. Pusey [1970] HCA 60; (1870) 125 C.L.R. 383; Page v. Smith [1995] UKHL 7; [1996] 1 A.C. 155. See also Reeve v. Brisbane City Council [1995] 2 Qd.R. 661.

The plaintiff was born on 7th August 1950. She was divorced in March 1985 and had three children aged 20, 17 and 13 at the date of the accident. The plaintiff was then aged 40. Her 13 year old son was living alone with her. She said in evidence that on Thursday 3rd January 1991 at about 8.25 p.m. she was driving in the southbound lane along the busy Logan toll motorway which was a two lane carriageway (ie. one lane in each direction) and which linked Ipswich Road to the Gold Coast Highway. The road proceeded roughly from north to south. The weather was fine and clear but dark, with no overhead street lighting. She was on her way home from work as a sales demonstrator at the Redlands Shopping Complex (Thursday night shopping) and was familiar with the motorway and traffic which might be expected to use it in both directions. She was concerned to arrive home because her child was home on his own.

The plaintiff said in evidence that she had just passed through the toll gate when her car suddenly and without warning began to lose power and the engine stopped. She said in evidence in chief "I was driving along the Logan Motorway and the engine just seemed to stop and I naturally applied my foot brake and it just seemed to pull to the right across the road as I - the same time I applied the brake"(p.8). She repeated this on several occasions in cross-examination (pp.18, 19, 21). In answer to a question in cross-examination as to why she did not pull over to the left side of the road, she said that when she applied the brakes, the car pulled to the right significantly (p.20). She said she did not expect it to pull to the right and she also said she tried to keep the vehicle straight (p.21). She had also said in cross-examination that she thought that when the engine stopped the power brakes, they would have pulled her to the right. She said that the vehicle came to a stop almost immediately but substantially on the incorrect side of the road in a diagonal position. See Exhibit 4.

The headlights and tail-lights were on. She said she turned on her hazard lights. She said she knew what to do in an emergency situation. She said she was upset with the car on the wrong side of the road and wanted to hurry to do something about it. She said she tried to restart the engine several times without success. She was concerned about possible injury to other road users as well as to her own vehicle on which she placed a particular value because she had purchased it from an inheritance from her mother's estate. There was no suggestion of any sudden illness or any condition which might have affected her driving. Indeed, she had been at work and was returning straight home to join her son.

Whilst the plaintiff said in cross-examination (19) that she did not "pull the steering wheel around to the left" to keep the vehicle on its correct side of the road, the obvious conclusion from her evidence, which the learned trial Judge generally accepted, was that by attempting to keep the car straight as it veered to the right (which necessarily involved the turning of the front wheels and the steering wheel to the right - Exhibit 4) she was in fact attempting to turn the steering wheel to the left, but was unable to do so. She told Dr Reddan that she could no longer turn the wheel or direct the car, but that must be taken in the context that she had applied the brakes. She was asked in cross-examination whether the vehicle had "suddenly stopped in that way on any occasion since", to which she said "No". She also said that this had not occurred before. The questions were directed only to why the engine stopped (18), and not whether it had ever pulled to the right before, which may have depended amongst other things upon the degree of pressure applied to the brake pedal.

Mr and Mrs Cairns were travelling in a northerly direction in their car with their children and a babysitter. They drove around the rear of her vehicle and stopped about 25 metres ahead of her car to assist her. The plaintiff spoke to Mr Cairns who, she said, moved to the southbound passenger-side of her car to wave other motorists travelling northward, around the rear of her car. She said that as Mr Cairns was helping her to move her car off the road, a manoeuvre in which she said she assisted, she noticed another car travelling quickly in the northbound lane towards them. She initially observed it from about 400 metres and watched its progress. She said it did not slow down and when about 100 metres or so away she apprehended a dangerous situation. She said Mr Cairns was seated in her car attempting to move it and she grabbed his arm to move him out of the car. She said Mrs Cairns screamed out "Ron, he's coming, he's going to hit you, he's going to hit you". The plaintiff said that she and Mr Cairns both ran into a ditch on the side of the road and she fell backward into it. She said the ditch was about two feet deep and there was a bank or cliff behind them. She said in cross-examination that "I wasn't watching what Mr Cairns was doing but know he was running into the ditch with me". She said she was lying down on the ground and couldn't see everything. She further said in answer to a question as to whether Mr Cairns finished up in the ditch too "Yes, I felt that he did. I thought he was straight behind me and we came up against the dirt wall". She could not remember how far he was from her "because I'd fallen onto my back". Elsewhere she said: "He was right next to me." She said she scraped the back of her knee and felt jarring as she fell into the ditch. She said "I was terrified the (defendant's) car was coming straight for us. I was going to get killed. I was sure I was".

The rapidly approaching car driven by the defendant, collided with her car. She said she saw and heard the collision. She said that she was terrified that she was going to be crushed by her car, which she said she saw sliding across the road towards her, ie. being propelled towards her by the impact. It stopped only two feet from her legs. She felt as if it was on top of her (p.26). She said she was sure she was going to die. She later told this version to an investigating police officer and to medical practitioners. Her evidence that Mr Cairns was in the ditch beside her or at least that she thought he was, appears to have been somewhat confused. Events occurred quickly and in an emergency situation in darkness. The foregoing comprised an alleged traumatic event which she said, caused extreme fear of personal injury to her or death.

After the collision, the plaintiff said she was only able to write down the defendant's registration number. Mr Cairns was present. She said that she "just felt terrible, terribly dizzy and cold all over". Her heart was thumping. She borrowed Mr Cairns's mobile phone to call her son at home. Shortly thereafter she fainted and lost consciousness. She was taken to the Logan City Hospital by ambulance. She recalled vaguely an ambulance officer speaking to her and she expressed concern about her son: "Look after Daniel, I'm going to die". She suffered an irregular heartbeat and was placed on a monitor. She discharged herself from the hospital at 2.30 a.m. because a police officer arrived and told her that another son had arrived home and was severely ill. She was very concerned for his welfare and that of her thirteen year old son.

She said that since the accident, she lost confidence, her job, she became withdrawn, had no social life and was unable to travel. She said her concentration was poor. She has felt very cranky and irritable and has a terrible temper. She has been unable to keep her boyfriend who lost patience with her, and her relationship with each of her three children has deteriorated drastically because they too have been intolerant of her behaviour. She said she also had flashbacks and nightmares and frequently cries and has difficulty sleeping. She also has stomach upsets, low energy and fatigue. She said that she now has panic attacks which she never experienced before and her short term memory has suffered. She suffers from anxiety and an irregular heartbeat when she becomes upset and reminded of the accident. She fears driving. She said that before the accident she "was so happy and full of life, so energetic, I had lots of friends". She said that she had no nervous complaints and was highly active, very much involved in Parents Without Partners. She led a confident social life, dancing and organised activities for that group. No other lay evidence was called as to her state of health and condition prior to the accident although some medical reports give indications of some aspects of her past history.

There was also medical evidence to the effect that the plaintiff, based upon her version of events viz. that she was in the drain as she described, suffered from post-traumatic stress disorder consisting of a recognisable psychiatric illness manifested by symptoms of the kind she described flowing from the intense emotional shock which she alleged she experienced. She has also suffered from chronic fatigue syndrome, neuralgia associated with shingles, glandular fever and depression. The trial Judge held that only the glandular fever and shingles were not caused by the incident.

The diagnostic criteria for post-traumatic stress disorder was in evidence. See in particular Exhibit 3, the report of Dr Alan Freed psychiatrist dated 18th January 1985, p.7 which indicates that there are two broad criteria which must be satisfied. That criteria is as follows:-

"Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association, 1994, p.427-429.

(A) the person has been exposed to a traumatic event in which both of the following were present:-

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

(ii) the person's response involved intense fear, helplessness, or horror.

(B) the traumatic event is persistently reexperienced in one (or more) of the following ways:-"

Then follow numerous experiences and symptoms many of which the plaintiff said she experienced and on which the above medical evidence (and trial Judge's findings) depended. It was not contended by the appellant that the plaintiff did not suffer from some type of psychiatric illness, but rather that the defendant was not responsible for any such damage and if he was, that the damages were excessive.

The defendant gave evidence that on the night in question he had been driving in the northbound lane of the motorway at a speed of 95-100 km/h with his headlights on low beam. The speed limit was 100 km/h. His wife and two children were passengers. His view ahead was unrestricted for at least 300 metres. Other cars had safely negotiated around the plaintiff's vehicle. He said that he did not notice the plaintiff's car until he was only a short distance away, but that he managed to slow down his car to some degree. He said that he could no longer recall many details of the accident. He remembered that his car had come to a stop on the road but "just turned ahead to the drain" (T.120). He did not recall what happened to the plaintiff's car. He said that prior to the accident he had not seen any lights from the plaintiff's car, but that he had noticed another car with its headlights on further up the road.

Obviously the defendant drove at an excessive speed in the circumstances, notwithstanding that the speed limit was 100 km/h. He did not keep a proper lookout and did not keep his vehicle under proper control, as the trial Judge found. It was not in dispute that the head and tail-lights of the plaintiff's car were burning and the trial Judge found that the hazard lights were on. Her car was white in colour. The defendant should have observed the situation ahead of him as he approached. It was not in dispute that the defendant was negligent in driving as he did and in colliding with and causing damage to the plaintiff's vehicle. See the concession by Mr Hampson Q.C. at p.22.

Mr and Mrs Cairns, who had stopped to assist the plaintiff before the accident occurred, also each gave evidence. Mrs Cairns, who gave evidence for the defence, said that she, her husband, their three children, and the children's babysitter had been travelling in a northbound direction along the motorway when she noticed the plaintiff's car blocking their path. She alerted her husband who was driving, and they drove around the plaintiff's car and came to a stop a little further ahead. She and her husband alighted from the vehicle and she asked the babysitter to move the car a little further up the road because she said she feared for her children's safety if an accident should occur. She said she did not recall whether the plaintiff's car had any lights on. She said her husband went over to the plaintiff's car and spoke to the plaintiff. Mrs Cairns heard the plaintiff say "Help me, help me". The plaintiff appeared very upset and very anxious. Mrs Cairns said that at this stage she was "within shouting distance" of the plaintiff and her husband.

Mrs Cairns said in evidence-in-chief that after stressing to her children to stay in their car, she turned around and noticed the defendant's car approaching and felt it wasn't going to stop. At this stage she said her husband was waving traffic by to the rear of the plaintiff's vehicle. She said he was around the back where he could be seen from oncoming traffic. She said she shouted at her husband about the approaching car and he ran very quickly. She did not know where the plaintiff was at that point. She said she did not see the actual impact but heard the screech and the impact. After the impact her first thought was where her husband was. She said he "just appeared", and "this car was moving and he jumped into this car . .", meaning the plaintiff's car. She could hear the plaintiff but did not know where she was. She was shouting "My car, my car, it's all I've got left". She said her husband stopped the plaintiff's vehicle just before it went down the ditch. She did not know where the plaintiff was at that point or where the plaintiff was in relation to where she herself was standing. Mrs Cairns's evidence as to the final movement of the plaintiff's vehicle is not inconsistent with the plaintiff's version that it was being propelled towards her whilst she was in the ditch.

In cross-examination Mrs Cairns said that when her husband first went up to speak to the plaintiff in response to her request for help, her husband got into the car to try to start it. She did not hear him try to start it but said that he was in the car on that occasion for probably a minute or so. She thought that other traffic was coming around behind the plaintiff's car at that time. She could not remember if the plaintiff's hazard lights were on. She agreed that the plaintiff was hovering somewhere near the driver's door at that time and that her husband was sitting in the car with one leg out on the road leaning on the door and trying to move the vehicle. She agreed that the plaintiff and her husband were trying to move the car but unsuccessfully. She also agreed that her husband got out of the car to wave some traffic around the back of it and she noticed this when she turned around. She said she then observed another car which had stopped ahead further up the road past their vehicle. The driver indicated that he would alert the toll people. She said there was a situation approaching panic. People were generally very alert and concerned about the situation. She was very concerned about her husband particularly before the collision. At no relevant time apart from her observing the plaintiff when her husband first spoke to her, did she observe her until after the accident and apparently when the plaintiff requested the use of her husband's mobile telephone to call her son at home.

Mrs Cairns said that after she saw the defendant's car approaching at a fast speed and had shouted to her husband to get away, she saw him run around from the back of the car to stand between the plaintiff's car and their own car. She said she (Mrs Cairns) was standing between the vehicles about half way between them. She agreed that she was the only female standing about halfway between the two vehicles and that certainly the plaintiff wasn't standing with her. She said her eyes were trained on her husband and the plaintiff was not with him and was not with her. She appeared quite definite that the only person between herself and the plaintiff's car was her husband. She said that she was unable to say where the plaintiff went when the accident became imminent but was adamant that she was not in any position between the plaintiff's car and their car. The fact that Mrs Cairns did not see the plaintiff at any relevant stage is not inconsistent with the plaintiff's version that she was then in the ditch and out of Mrs Cairns's sight. Mrs Cairns's evidence is also inconsistent in certain respects with that given by her husband.

Mr Cairns was called by the plaintiff to give evidence. He said that on the night in question he had been driving, with his family and the babysitter as passengers, along the northbound lane of the motorway when he was notified by his wife of a car blocking the road ahead. He pulled around the car, the plaintiff's car, and came to a stop some 25 metres further up the road. He then got out of his car and went over to talk to the plaintiff, who was standing beside her car. He said that she told him that "something or somebody" had moved the car across to the wrong side of the road. He said that she was "quite excited, quite vocal, sort of distressed about the whole situation" which the trial Judge might have thought was far from unusual for any normal person in the helpless predicament which confronted her, in the dark, with her stalled and immobilised vehicle on the incorrect side of the roadway, which carried a fair volume of traffic with the risk of injury to her vehicle as well as to other passing motorists. Also she was concerned that her young son was at home on his own.

He said that the headlights on the plaintiff's car were on, but not the hazard lights although in cross-examination he said he did not look to see if they were on. He initially said that he got into the car, released the handbrake, and put the gear lever into neutral. Evidence from a police mechanic indicates that the car was a 1986 Mitsubishi Sigma station wagon with automatic transmission and power brakes (front disc and rear drum brakes) but no power steering. There is no direct evidence that Mr Cairns first tried to start the motor which might be thought to have been his first reaction. Mr Cairns attempted to push the car from its position which is capable of supporting an inference that it could not then be started as the plaintiff said. However, he said that he noticed other cars coming and decided the safest course would be to wave them around. He stood to the rear passenger-side of the plaintiff's car waving northbound vehicles around.

It follows that if the handbrake was on (it was later found to be in working order) which Mr Cairns said he released, it had probably been applied by the plaintiff, presumably after the car had proceeded onto the wrong side of the road. This would have been a natural reaction to prevent the car from rolling down the camber of the road to the side and into the ditch. It would also have been natural to place the vehicle in "park". However the situation is not entirely clear. As indicated, Mr Cairns first said that he released the handbrake and put the car into neutral (a necessary position in order that the vehicle could be pushed), but he did not state from what position it was in prior to that ie. in "park" or in "gear". The plaintiff said she attempted to start it as the trial Judge found. To do so, it would need to be in neutral or in "park" as it was an automatic, unless, as Mr Hampson suggested, the plaintiff was completely confused and could not start it because the car was in gear. However, no such inference can be drawn because Mr Cairns also said in his evidence that the plaintiff's car could not move because "it was in gear or the handbrake was on".

Mr Cairns further said that as he was directing traffic around the plaintiff's car, he saw the defendant's car approaching and that it appeared to him that it was likely to strike the plaintiff's car. He admittedly ran around the back of the plaintiff's car to a position between that car and his own car further along the road. He was naturally concerned for his own safety and that of his family. His wife had screamed out to him a warning. After saying that he ran about 13 yards in all towards his own car, he said:-

"Did you sprint or just hurry? -- I ran like buggery.

I suppose you had other things on your mind about then? -- Me in particular, yes.

You weren't terribly concerned about where Mrs Curtin was at that stage? -- At that particular moment I didn't give a monkey's about anybody else except myself."

He obviously perceived this to be an extremely dangerous situation. Earlier in evidence he said that he saw the plaintiff standing behind him at the time he ran around between the two cars and that at the moment of impact she was situated on the road between her car and his car about one and a half yards from him. After the collision Mr Cairns said he jumped into the plaintiff's car which had spun northwards after the impact and started to roll towards his own car and the ditch. He said that he applied the handbrake and the car stopped just before entering the ditch. He also said that at no time during the entire incident had he or the plaintiff entered the ditch. His evidence as to the final movement of the plaintiff's vehicle is also not inconsistent with the plaintiff's version that it was being propelled towards her while she was in the ditch.

Mr Cairns also said that after the collision the plaintiff became quite hysterical. He lent her the use of his mobile phone and said that she used some bad language on it. The plaintiff on her part denied the use of bad language and said that she was very concerned about ringing her son so as not to upset him but to tell him she would be a little late.

As indicated, Mr Cairns's evidence that the plaintiff was standing behind him on the road and not in the ditch is not consistent with Mrs Cairns's evidence that at no relevant time after her husband ran around to her side of the plaintiff's car, and while she later saw her husband trying to stop the car from rolling down the ditch after the collision, did she see where the plaintiff was situated but had only heard her yelling out "My car, my car. It's all I've got". She was adamant that the plaintiff was not standing between the two cars as Mr Cairns said. It was submitted by the respondent that this supported the plaintiff's version and that Mr Cairns must have mistaken his wife for the plaintiff in the emergency situation in the dark conditions.

The defendant called evidence from Alan Francis Neil a sergeant of police attached to the transport section. He is a motor mechanic and belonged to the vehicle inspection unit. He is a licensed vehicle inspector by the Department of Transport. He inspected the plaintiff's vehicle for the first time some seven to ten days after the accident, but in the morning, and not under similar conditions, temperature or otherwise, which existed when the plaintiff experienced engine failure and pulling to the right when the brakes were applied. He said that the vehicle was drivable notwithstanding some damage to the passenger side. The engine started up "practically straight away". He started it to get the power brakes operative. He tested the foot brake and hand brake which he said were in good condition, although it appears that he did this only by hand and foot operation and not by closer inspection. He said the foot brake had three-quarter pedal. He detected no defect in the operation of the steering. After apparently driving for a short distance he pulled up, checked the tyres and electrics (lights, indicators etc.), and drove the vehicle for 10 kilometres on the highway at 100 km/h. He concluded that the vehicle was in a satisfactory mechanical condition at the time of his inspection. When asked if he could explain the vehicle suddenly losing its steering or behaving in an erratic manner, he said there was absolutely nothing wrong mechanically with the vehicle when he did his inspection and when he drove the vehicle down the highway (142).

In cross-examination he said he did not observe whether this vehicle had a computer box under bonnet but said that it had an old style fuel pump system. He also said it was a carburettor model and not a fuel injected model, indicating it was the old type of system. He agreed that an engine can stall and stop running due to either electrical or fuel problems and that a temporary blockage in the needle valve in the carburettor or in the fuel line could temporarily stop the engine. He agreed that he had heard allegations that an engine can fail and start again without any reasonable explanation and that depending on the operating conditions at the time, and the temperature of the engine and the efficiency of its cooling system (which includes amongst other things the radiator which must be full of water at the time), the fuel could vaporise causing a starvation and a temporary failure of the engine. He added however that where there was such a temporary blockage from whatever cause, there could be a surging or a bit of spluttering of the engine which can stop a motor (p.143), which is not inconsistent with the behaviour of the engine as described by the plaintiff in a written statement dated 22nd October 1991, Exhibit 8. She said it seemed to "jerk and stutter", before it stalled.

He agreed also with the expression "there is a gremlin in the car", although he said that "modern day" vehicles fitted with fuel filters, tend to stop the rubbish getting into the carburettor. However he did not exclude the possibility of this occurring or that it could be self-correcting. This is something different to a situation when there is a vaporisation of fuel which as the evidence indicates, may depend upon the temperature at the time and perhaps other factors. When asked whether he was saying that he did not know what made the car stop, he answered:-

I see. Well, when you were briefed to drive it did you have some instructions?-- I was told that there was a possible performance problem.

Did they give you a better clue than that or did they deliberately keep it cryptic? -- I tried to find the original request in the files, but unfortunately, after five years, they are destroyed, and just from memory, I think the reason why I spent the time working - testing the engine and then driving the car down the highway was because of the performance allegation.

What did you understand the ´performance' to be? - in relation to - well, the operation of the vehicle -- It wouldn't go fast enough or . . ? . . no I wouldn't say ´fast enough' . . .

In re-examination he said that if the engine was off, it would have absolutely no effect on the steering (148), although from other evidence he gave, as well as from the plaintiff's evidence, this would depend upon whether the brakes were applied at the time, whether the brakes may have been out of adjustment, or whether there had been leaking brake oil or a leaking rear axle oil seal which might cause oil to appear on the inside of a wheel or a brake-lining. He said that if this was so, this could cause a vehicle to run out of line on foot-brake application (148). He said that there was no brake oil leakage but did not say that there was no leaking rear axle oil seal, temporary or otherwise. Indeed he did not say that he took the wheels off the vehicle to inspect for any signs of oil or moisture, whether from water or condensation or otherwise, on the inside of any of the wheels or brake linings or other components, or to see if there was any sign of past presence of any such condition.

It will be recalled that the plaintiff made no allegation that the steering had failed; rather that the engine "seemed to jerk and stutter", lose power and stopped and on application of the brakes, it pulled to the right significantly and unexpectedly despite her efforts to keep the vehicle straight ahead. It is unfortunate that Sergeant Neil did not know of the precise failure as alleged by the plaintiff and did not know what to look for other than to check it for general "performance". He agreed that he did no tests on the car or the brakes while the car was moving but the engine was not running with the brakes applied as the plaintiff said. There is no evidence that he checked the brakes for adjustment but stated that generally speaking the vehicle and the brakes were in good condition based upon his performance test seven to ten days after the incident in question. It does not appear whether any attempt was made to start the vehicle without success at the scene after the impact, or whether it was merely assumed that it would not start. In any event, the plaintiff's car was taken away by a tow-truck.

As indicated, the trial Judge concluded that the first defendant had been negligent in his driving of the vehicle which collided with the respondent's vehicle. His Honour also generally accepted the plaintiff's version of events, including her evidence that in fear of the defendant's car rapidly approaching her vehicle, she had stumbled into a ditch and suffered a further real fear of her car running over her as well as distress that her car, bought from a bequest from her mother, was damaged. His Honour implicitly rejected the evidence of Mr Cairns that the plaintiff had remained on the road, stating "Cairns beat a very hasty and anxious and very justifiable retreat during which he was intent on caring for himself and no one else" (R.253). His Honour was satisfied that this sequence of events had caused the respondent's various psychological conditions complained of except shingles and glandular fever, and that these conditions were foreseeable as a result of the defendant's negligence. Moreover, His Honour said that he was not satisfied that the respondent had had any pre-existing "flaw", and that therefore there should be no discounting of damages on that particular basis. He also concluded that the appellant had failed to prove that the respondent was contributorily negligent as a result of the position in which her car ended up on the incorrect side of the motorway.

The appellant contended that the plaintiff's version was wholly inconsistent with that of Mr Cairns, an independent witness, and that his evidence was in some respects at least, corroborated by the evidence of his wife. The appellant's principal contentions have been referred to above. It was also contended that Sergeant Neil's evidence indicated that the plaintiff was negligent in allowing her car to move or to stop on its incorrect side of the busy highway. Counsel for the plaintiff submitted that the judge's findings were correct based upon the evidence.

The Court of Appeal will not lightly set aside a trial Judge's findings of fact, especially where such findings are based on credibility, which the trial Judge, having seen and heard the relevant witnesses, is in a much better position to assess than this Court: Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 C.L.R. 167; Wade v. Angsea Investments Pty Ltd (C.A. No. 327 of 1996, 21st March 1997, unreported). In this case, it is clear that on the crucial issue, that is, whether the plaintiff was in the ditch or on the road immediately after the collision, there were two essentially irreconcilable stories, that of the plaintiff, and that of Mr Cairns. There were no other witnesses who saw precisely what happened, nor was there any extrinsic evidence to lend support to either version. In making his assessment of the evidence, His Honour accepted the plaintiff's version on this critical issue. The evidence of Mrs Cairns, which contradicted her husband's evidence as to where the plaintiff was situated after the impact, and which showed that she did not see the plaintiff at any relevant time, gives general support to the plaintiff's version and some justification for not accepting Mr Cairns's evidence on critical aspects.

It is true that the plaintiff said in evidence that Mr Cairns was also in the ditch with her whereas he said that he was not. As indicated, the plaintiff's overall evidence on this aspect is somewhat vague. Also Mrs Cairns's evidence is not entirely clear on this point. She admitted that she did not actually see the collision but said that immediately after the collision she saw her husband who "just appeared" and entered the plaintiff's car to stop it rolling down into a ditch by the side of the road. She did not say from where he just appeared; nor did she say that her husband was never in the ditch or perhaps close to it or in the region of the gravel verge. The ditch was in effect a table drain with the edges ill-defined. It was open to the learned trial Judge to accept part of the evidence of the plaintiff and reject other parts, as with any other witness. His Honour was also entitled to consider the time-lapse between the accident and trial and the emergency situation confronting all persons involved in the subdued light. The plaintiff's version was consistent with what she told the investigating police officer and medical practitioners. His Honour also accepted the plaintiff's version of how the incident occurred, where she was situated, her reaction and symptoms she said she suffered. It is not appropriate for this Court to impose its own view of the facts unless there is some compelling reason to do so. No such reason has been demonstrated in this case.

The next issue to be considered is contribution. I have read the reasons of the Chief Justice and respectfully disagree with His Honour's conclusions in this respect.

The onus of proving contributory negligence rests on the defendant. This onus may be discharged on the balance of probabilities if there is sufficient evidence from which, prima facie, an inference of negligence may be drawn. On the other hand, if the evidence is in such a state that an inference consistent with no negligence is equally open as an inference to the contrary, the defendant's onus is not discharged. The plaintiff does not have to disprove negligence on her part.

The particulars of contributory negligence pleaded in para.5 of the entry of appearance and defence to which the learned trial Judge correctly held that the appellant was bound, are as follows:

"(a) Placing her vehicle on the incorrect side of the road;

(b) Failing to warn other motorists of the presence of her vehicle on the roadway when a reasonable and prudent person would have done so;

(c) Failing to have any lights on her vehicle shining or flashing so as to warn other motorists of the presence of her vehicle on the roadway."

His Honour concluded that the defendant by election had failed to prove that the plaintiff's fault, being that pleaded, had caused or contributed to the damage which she proved that she had suffered as a result of the defendant's negligent driving (T.260). His Honour held that none of the pleaded particulars had been proved and continued (p.261):-

"The pleading placing of her vehicle on the incorrect side of the roadway requires the defendant by election's proof of Curtin's unreasonable omission or commission which caused the alleged placing. The accurate and reliable evidence received proves no such act or omission. The opinion evidence relevant to this issue is, as to it accuracy and reliability, much marred by the inexplicable but very evident bias against Curtin's cause. That which was made clear by that body of expert evidence was first, that Curtin's vehicle, ignoring collision damage, was in good order and condition, second, that it was fitted with a standard power-assisted braking system, third, that that system for its efficient and usual operation requires the engine to be operating to supply the necessary vacuum to assist the operation of the brakes, and, fourth, that if that vacuum be absent or insufficient the brakes may become harder to apply and steering control more difficult for the driver. The evidence received proves that when the engine failed, Curtin, alone in her vehicle, applied the brakes and the vehicle, contrary to her wishes, pulled itself to and stopped in a stationary position in which it was when later it was stuck by the defendant's vehicle. The critical aspect of this plea is that the onus of proof of both this issue and the pleaded particular is upon the defendant by election and not upon Curtin to disprove. My conclusion is that the defendant by election has failed to prove, according to the civil standard of persuasion, that some unreasonable act or omission caused the vehicle to be placed as alleged in the pleading. The second particular alleged against Curtin is that she failed to warn other motorists of the presence of her vehicle. That has not been proved. The evidence is that the male witness, Cairns, at the material times was doing just that - waving to warn the oncoming defendant's vehicle's driver that the car was upon the roadway. The third and last particular is that Curtin failed to have any lights on her vehicle shining or flashing. The evidence proves the contrary - that its headlights and tail light and that its hazard lights were operating on Curtin's white or light-coloured vehicle. I decline to uphold the submission that Curtin's otherwise recoverable damages should be reduced by reason of the fault pleaded against her."

His Honour's comment as to the "very evident bias" displayed by Sergeant Neil depended entirely upon His Honour's observations of the witness, his demeanour and the manner of response to the various questions asked. Perhaps one indication may be obtained from further cross-examination of Sergeant Neil by counsel for the plaintiff who asked him (T 149) whether as part of the experience of driving a car, when motorists find that a vehicle is pulling one way or the other and braking, they have to get the brakes adjusted. Sergeant Neil answered "Well, four wheel disc brakes nowadays you don't adjust the brakes at all. They have been out for years now". It is obvious from the next question that Sergeant Neil well knew that the car in question did not have four wheel disc brakes (unless of course, his examination of the vehicle was not as thorough as he suggested). He was then asked:

"Do you have an axe to grind in this matter? I asked you a simple question? - - -"

The answer at best was not responsive but may in context have been evasive. However, for present purposes, His Honour's observations in this regard may be ignored.

Particular (a), unlike particulars (b) and (c), does not allege a failure to do something, e.g. a failure to keep the vehicle in proper mechanical condition, or something positive such as the driving of a mechanically defective vehicle prone to erratic behaviour, or driving at an excess speed resulting in the negligent placing of the vehicle on the incorrect side of the road. It merely alleges the "placing" thereof. This allegation, coupled with the submissions, might be thought to suggest that the appellant is in effect relying upon the doctrine of res ipsa loquitur which "is no more than an assertion that, as a matter of common sense, negligence may be inferred from proven facts". Houston v. Queensland Railways (C.A. 144 of 1994, 7th December 1994 unreported per Davies J.A. at 4; per Lee J. pp.8 et seq). The proven fact on which the appellant seeks to rely as supporting an inference of negligence is simply that the plaintiff's motor vehicle, otherwise found to be in good order seven to ten days later, ended up and was so "placed" in a stationary position on its incorrect side of the roadway in the face of oncoming traffic.

As pointed out by all members of the Court in Houston v. Queensland Railways (Pincus, Davies JJ.A., Lee J.), the doctrine is very narrow in its operation. It cannot apply where complex machinery simply breaks down. The question is whether the mere fact of the occurrence without any further reference to its probable cause or extraneous circumstance, will be sufficient to discharge the defendant's onus in raising a prima facie case or, to put it another way, some incidents, by their very nature, do not occur without negligence on the part of the person against whom it is alleged. The mere fact of the occurrence provides a circumstantial basis on which the tribunal in fact is asked to draw the necessary inference by the Latin phrase res ipsa loquitur meaning literally, "the thing speaks for itself": Houston v. Queensland Railways per Lee J. at 10.

However, as with all circumstantial cases, the inference which is sought to be drawn from the established facts must be one which arises as a matter of reason and not as a matter of conjecture, speculation or hypothesis: Mummery v. Irvings Pty Ltd [1956] HCA 45; (1956) 96 C.L.R. 99 at 117. Not every occurrence bespeaks negligence either on the part of the person against whom it is alleged or even at all: Anchor Products Ltd v. Hedges [1966] HCA 70; (1966) 115 C.L.R. 493 at 497; Mummery v. Irvings at 113. An indiscriminate application of the principle would produce the absurd result of reversing the legal onus of proof so that it is in a limited amount of cases only that the principle has application. The occurrence must be one which "in the normal course of things" or which "in the ordinary affairs of mankind" would not ordinarily have occurred without negligence of the party against whom negligence is alleged: Mummery v. Irvings, 116; The Nominal Defendant v. Haslbauer (1967) 117 C.L.R. at 452; Piening v. Wanless [1968] HCA 7; (1967-1968) 117 C.L.R. 498 at 507-8; GIO of New South Wales v. Fredrichberg [1968] HCA 54; (1968) 118 C.L.R. 403 at 413. Of course, that not need be the sole inference which the facts may support. Others may be suggested, some of which are consistent with the exercise of due care on the part of the person responsible for the occurrence. In order to establish a prima facie case and base the finding sought, it is sufficient if the fact of the occurrence could more probably than not point to a conclusion consistent with the negligence of the party against whom it is alleged. It is sufficient if the other suggested causes are improbable enough having regard to the nature of the occurrence that the tribunal in fact could, on balance, reasonably discard them. That is the first vital condition to the operation of the principle.

The second point essential to the operation of the principle is that the res is to speak for itself and it must be left to speak for itself. The application of the principle assumes an absence of an explanation, i.e. that the cause of the occurrence has not been identified. It simply means that if a credible explanation for the accident is offered, which is accepted by the tribunal, the question ceases to be one as to whether negligence can be inferred from a mere fact of the incident and becomes one whether on the whole of the evidence that cause was due to the negligent failure of the party involved to avoid or prevent it: Mummery 115; Anchor Products 496-8, 506; Haslbauer 453.

The trial Judge held that the placing of the vehicle on the incorrect side of the roadway required proof by the defendant of some unreasonable omission or commission which he found was not established. He held that the placing of the vehicle occurred without any fault of the plaintiff's part and contrary to her wishes. In other words, His Honour has treated the word "placing" as requiring either a voluntary act by the plaintiff or an occurrence which was in her power to prevent, as opposed to an occurrence which was involuntary or beyond her power to control.

The first question is whether it can be clearly said that the mere fact that the plaintiff's vehicle, white in colour, which ended up on its incorrect side of the highway with its headlights and tail lights on and hazard lights flashing, and with Mr Cairns directing other vehicles around the rear of it in circumstances where several vehicles had successfully avoided it, necessarily bespoke negligence, i.e. whether it is within the common experience of mankind to conclude that the mere position of the plaintiff's vehicle in these circumstances resulted from a want of care on behalf of the plaintiff, to the exclusion of its position being consistent with reasonable care or due to circumstances for which the plaintiff could not reasonably be held responsible.

It may be doubted whether an inference of negligence could necessarily be drawn from the mere position of the plaintiff's vehicle, as described above. Other inferences may be suggested, but for present purposes, even assuming that such an inference could be drawn, this is far from the end of the matter because the evidence does not permit the res to speak for itself. There has been a credible explanation for the occurrence offered by the plaintiff and accepted by the trial Judge. It is the primary evidence of the occurrence and is not inconsistent in certain respects with what the plaintiff told Mr Cairns, Constable Baker, and some medical experts. This specific evidence has not been negatived or disproved by the evidence given by Sergeant Neil. He did not even know what to look for and what fault the plaintiff claimed to have experienced. He did not know that the engine had stopped or that it had then veered to the right on application of the brakes or the speed of the vehicle or the time when or conditions under which it occurred. Nor did he look for any possible intermittent fault in the engine or the brakes or wheels. Nor did he check the brakes while the car was in motion but with the engine turned off. Whilst his inspection was not a rigorous and detailed mechanical inspection, his evidence nevertheless is in certain respects not inconsistent with and even tends to support the possibility that the vehicle could have behaved in the manner described by the plaintiff.

Sergeant Neil admitted that there were instances where a car may behave in an erratic fashion without obvious mechanical defect. This evidence is generally capable of supporting an inference that an intermittent, self-correcting blockage or fault could occur and that in older braking systems, such as the plaintiff's vehicle, there may sometimes be a tendency for the vehicle to move to one side when the brakes are applied, depending upon factors such as the state of the brake-linings and wheels, the presence or otherwise of any oil or moisture at the time of the occurrence, and the degree of pressure applied to the brake pedal. This is precisely what the plaintiff said had occurred after the engine stopped and she applied the brakes. She also said in cross-examination that when the engine stopped the power brakes, the power brakes pulled her to the right, notwithstanding that she was trying to keep it straight. It was not put to Sergeant Neil that the car could not have behaved in the manner described by the plaintiff in her evidence given earlier in the trial. His evidence that there was no effect on the steering if the engine was off, overlooks the added fact described by the plaintiff viz. that she also applied the brakes which caused the uncontrollable veering to the right.

At no time did the plaintiff allege that the vehicle "suddenly lost its steering", which seems to have been the main area of attack at the trial and on the appeal in an attempt to show that the vehicle's direction was controllable. This misconceived the plaintiff's evidence. There is no evidence that this vehicle even with perfect steering could not have pulled to the right on the application of brakes at 80 km/h when the engine stopped, and particularly if there was some defect, even if intermittent, in the braking system at the time of the occurrence. The plaintiff said that the engine jerked, stuttered and faded. She applied the brakes resulting in an immediate and significant veering to the right. She struggled to keep the car straight ahead as it veered to the right, which indicates that she was attempting to turn the steering wheel to the left, presumably in the hope that it would restart, but that she did not have the strength or capacity to prevent its independent right-hand movement. She could not keep it straight ahead, let alone steer it to the left side of the road.

The plaintiff's accepted evidence, coupled with Sergeant Neil's evidence and Exhibit 4, is capable of supporting an inference that, because her speed had been about 80 km/h, the veering to the right was quite sudden and unexpected and was probably caused by some intermittent mechanical failure such as a possible grabbing or failure of one or more of the wheel brakes or locking of a wheel of a car which would be necessary to involve an uncontrollable veering to the right. The plaintiff did not steer the car to the right, nor was this suggested to her. The sharply diagonal position in which the vehicle ended up as depicted in the stretch (Exhibit 4) is consistent with this possibility. She said the car pulled to the right during the deceleration process despite her efforts to keep it straight. If she was truthful, as the learned trial Judge found, a motor vehicle does not ordinarily behave in this manner unless there was a cause of some kind, even if unexplained. To hold that she was capable of and should have steered the car to the left, involves the substitution by this Court of a finding that she was not truthful, for the findings by the learned trial Judge.

There is no evidence that the plaintiff panicked and lost control, or was driving other than normally on her way home from work to join her young son. She does not have to disprove panic on her part or, for that matter, any other conduct. Indeed, it was not put to her in cross-examination that she did panic so that the appellant cannot now rely on any such suggestion: Brown v. Dunn (1894) 6 R. 67 (HL). In any event, the plaintiff's evidence suggests to the contrary. The nearest to any such suggestion was the question asked in cross-examination (p.22):

"Had something caused you to be frightened?---I was upset about being on the wrong side of the road."

She did not say she was frightened, but simply said she was upset about the predicament she faced when her car ended up on the wrong side of the road. Also of note is the concession by Mr Hampson Q.C. in response to a question by a member of this Court, that it was not put to the plaintiff in cross-examination that what she said occurred, did not in fact occur, nor was it suggested that she deliberately put the car on the wrong side of the road (T.18, 19) or that she lied.

After the car came to rest, she attempted to restart it several times but could not. The fact that Mr Cairns attempted to push it off the road supports an inference that it could not be started. As indicated, it was conveyed from the scene by a tow-truck with no evidence as to whether any other person attempted to start the vehicle after the accident. It could not be seriously contended by the appellant that the engine did not cut out or stall. The fact that the plaintiff said that there was no similar behaviour of her vehicle either before or after the accident, does not operate against her account. Any "similar" behaviour could only be of relevance if at other times she experienced identical circumstances, i.e. both the engine failure when the car was in motion at about 80 km/h and the application of brakes in closely similar roadway conditions. The question is whether or not there could have been an intermittent but self-correcting failure of the engine whether due to dirt or vaporisation or any other cause resulting in loss of the power-brake mechanism and whether or not the application of the brakes in those circumstances could have caused her car to suddenly veer to the right as she said. The veering to the right may also have depended upon the pressure she then exerted on the brakes as compared to pressure she would have exerted on any other normal occasion or as compared with the pressure Sergeant Neil might have applied after he had started the engine when he did not know precisely what he was looking for.

The overall evidence shows that the plaintiff, who had just left her job demonstrating in a supermarket, was driving normally, intent on arriving home to her young child in a car which she treasured for sentimental reasons. There is no evidence that she was behaving erratically prior to this incident, but to the contrary. To her knowledge the vehicle was in proper working condition. Nor is there any evidence that she received a fright or was temporarily blinded by oncoming light. She was aware of the traffic conditions on the roadway. It is inconceivable that she would negligently have allowed a vehicle which she treasured to go onto the incorrect side of the roadway in those traffic conditions, if it was within her power to prevent that occurrence. She has sworn that the vehicle behaved in the way she described which was consistent in substantial respects with what she told others subsequently and inferentially supported by Mr Cairns's attempt to push the car off the road without it being started. The trial Judge accepted her evidence. It is also supported by some of the possibilities conceded by Sergeant Neil, however reluctantly. It is more probable than not that it was the vehicle that behaved in an erratic manner rather than the plaintiff.

The plaintiff then took what steps she could to move it, aided shortly after by Mr Cairns who then commenced to wave other traffic around her car which was white in colour and readily visible with head and tail lights as well as hazard lights flashing. All other vehicles except that driven by the defendant had no difficulty in avoiding the plaintiff's car. She and Mr Cairns were keeping a close lookout for approaching traffic and scrambled as fast as they could when a collision seemed inevitable. The relevant test is that formulated by Macrossan C.J. in McPherson v. Whitfield [1996] 1 Qd.R. 474 at 478:-

"The test involved in assessing the extent of the failure to take reasonable care for one's own safety which is what the issue of contributory negligence is concerned with, invites attention to the level of care which can be expected of the reasonable man in the circumstances as they present themselves."

Therefore the trial judge was correct in concluding that the defendant by election had not discharged the onus of proving that the respondent negligently placed the vehicle on the incorrect side of the roadway. His Honour was also entitled to find and did find that the other two particulars of contributory negligence were not established. He found that there was no failure to warn other motorists. Nor was there any failure to have lights on her vehicle shining or flashing so as to warn other motorists. His Honour's finding that there was no contributory negligence established on the part of the plaintiff, should not be interfered with.

The foregoing disposes of the question of liability and contributory negligence, subject to the two qualifications canvassed above which should now be referred to. They appear to overlap:-

(1) The plaintiff was very concerned about her vehicle being in that position on a busy motorway and naturally wanted it moved as quickly as possible. This was a responsible attitude in the circumstances and it was surely foreseeable that a person or persons and particularly the person "responsible" for the position in which the vehicle ended up, would be likely to be in the vicinity of a broken down or stalled vehicle, attempting to extricate it or remove it into a position of safety. Other cars had safely negotiated around her lighted vehicle. Mr Cairns from a visible position was warning approaching traffic. His presence should have alerted the defendant. The plaintiff's car was white in colour and the head and tail lights (and hazard lights) were operating. It is difficult to see why the situation as to foreseeability would be any different to that applying had there been a prior motor vehicle accident with a vehicle stationary on its incorrect side of the roadway as the defendant's car approached.

The situation is very different to that in issue in Bourhill v. Young where the plaintiff was in fact in a position physically remote from the defendant's conduct with a tramcar in between and could not reasonably have been within the defendant's contemplation so that no duty of care existed. In the current circumstances, at least immediate direct physical injury of a violent nature to a person in the position of the plaintiff, i.e. "to the skin, flesh and bones" of such a person: R v. Chan-Fook [1993] EWCA Crim 1; [1994] 1 W.L.R. 689 at 695-6, would have been reasonably foreseeable as a result of negligent driving so that a duty of care would still exist even if it is correct to say that psychiatric injury (which was all that was claimed notwithstanding damage to the plaintiff's vehicle and some minor scraping of the plaintiff's knee and jarring) was personal injury of a different kind: Page v. Smith [1995] UKHL 7; [1996] 1 A.C. 155 at 190, and not capable of being characterised as "physical" injury in the traditional sense, a proposition which is becoming increasingly questionable in the light of advanced public and scientific knowledge of the nature and effect of psychiatric injury and its frequently observable consequences to a person's physical state. Even as long ago as 1901, Kennedy J. in Dulieu v. White & Sons [1901] EWHC KB 1; [1901] 2 K.B. 669 (a decision which has received general approval in some respects by the High Court of Australia and the House of Lords), when dealing with remoteness of damage, said at 677:-

"Why is the accompaniment of physical injury essential? For my own part, I should not like to assume it to be scientifically true that a nervous shock which causes serious bodily illness is not actually accompanied by physical injury, although it may be impossible, or at least difficult, to detect the injury at the time in the living subject. I should not be surprised if the surgeon or the physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organism."

In McLaughlin v. O'Brien [1982] UKHL 3; [1983] 1 A.C. 410 at 418, Lord Wilberforce referred to "nervous shock" as "the hallowed expression" which is continued to be used despite that "English law, and common understanding, have moved some distance since recognition was given to this symptom as a basis for liability". His Lordship continued:-

"Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the Courts in situations where claims for negligence are made."

In Page v. Smith, Lord Lloyd of Berwick at 188 said:-

"In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing would be gained by treating them as different 'kinds' of personal injury, so as to require the application of different tests in law."

The inelegant expression "nervous shock" is of wide import. It includes any recognisable psychiatric illness however caused and "bodily injury" may "'include injury to any of those parts of his body responsible for his mental and other faculties' and with the consequence that 'bodily harm' is capable of including psychiatric injury although not mere emotions such as fear or distress": West v. Morrison (Appeal No. 266 of 1995, Court of Appeal, 6th September 1996, unreported) per Macrossan C.J. at 4.

The plaintiff's claim is for damages for personal injuries which may include bodily injury of any kind caused by the defendant's negligence as well as psychiatric injury without a readily discernible organic basis. It cannot be said that the plaintiff was not reasonably within the contemplation of the defendant as he approached or that "personal injury" of some kind was not foreseeable.

(2) It is difficult to readily understand why there should be some limitation beyond those imposed by ordinary tort principles, on the existence of a duty of care in the case of a "primary" victim, albeit a by-stander who is narrowly missed by a negligent driver and who suffers a severe shock resulting from intense fear to his or her person and a consequential recognisable psychiatric illness, when a duty of care has readily been held to exist in the case of a "secondary" victim who is not under personal threat to his or her person and may not even observe the negligent conduct. Such a person is further removed from the range of reasonable foreseeability of injury. It was further submitted in effect that a person who was narrowly missed and of normal "phlegm" should be stoic and regard such an incident as causing no more than a transient fright or alarm or fear which, on its own, does not sound in damages, so that injury by nervous shock would not be reasonably foreseeable (excluding cases where the defendant knows of a particular susceptibility in the victim).

The expression "nervous shock" has received most exposure in relation to claims by a secondary victim where the psychiatric illness must be "shock induced": Jaensch v. Coffey per Brennan J. (as the Chief Justice then was) at p.566-7. A duty of care has been held to exist in such cases even though there is no direct physical threat to the plaintiff personally, but because of the foreseeability of a "shock induced" psychiatric illness likely to be suffered by such a person who perceives actual serious injury, or even a threat of such an injury to a loved one or one in a close relationship, and even in some cases where the secondary victim is far removed from the scene at the time of the negligent conduct and only hears of the result. Excluded from present consideration is the case where a plaintiff is both the primary and a secondary victim, i.e. directly involved in an incident and who suffers a psychiatric illness as a consequence of physical injury to the plaintiff and injury, actual or perceived, to another person at the time. See e.g. Mt. Isa Mines Ltd. v. Pusey [1970] HCA 60; (1970) 125 C.L.R. 383; McLaughlin v. O'Brien [1982] UKHL 3; [1983] 1 A.C. 410; Jaensch v. Coffey; Allcock v. Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 A.C. 310; Reeve v. Brisbane City Council [1995] 2 Qd.R. 661.

The submission that a limitation is all the more necessary in the case of a person who suffers a near miss but who is not physically injured by the collision itself, was apparently directed to the question of whether there was a relevant degree of "proximity" as a possible limitation on the existence of a duty of care as appears to have been the focus of the limitations recognised in cases dealing with "secondary victims".

It is not necessary to refer in detail to the ongoing debate on the question of proximity insofar as it bears upon the existence or otherwise of a duty of care: Jaensch v. Coffey; Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243; Bryan v. Maloney (1995) 182 C.L.R. at 609 and Hill v. Van Erp (1997) 142 A.L.R. 687. Nevertheless, the Courts have uniformly recognised some limitation in certain cases. In Hill v. Van Erp, Gummow J. at 748 cited with approval a passage from the judgment of Dawson J. in Gala v. Preston at 277, which had been accepted and applied by Brennan J. in Bryan v. Maloney at 654 as follows:-

"For example, there are reasons of general, if not universal application, which lie behind the rule which, for the most part, denies recovery of damages for pure economic loss or the rule which restricts the recovery of damages for nervous shock to a particular kind of plaintiff. But it is obvious that the search for a single principle underlying the concept of proximity is bound to be unsuccessful."

As indicated above, in the case of a "primary" victim who is physically injured by an impact flowing from the defendant's negligence, foreseeability of such injury is clearly established. The question of "proximity" as a limitation on reasonable foreseeability does not arise: Jaensch v. Coffey per Deane J. 581, 582. As His Honour pointed out, any separate requirement of proximity is commonly disregarded where no issue is raised about it but this did not establish that it has been discarded as a matter of principle. His Honour said it points to "the existence of overriding limitations upon the essence of reasonable foreseeability".

As to the nature of "proximity", Deane J. at 584 said:-

"Lord Atkin did not seek to identify the precise content of the requirement of the relationship of 'proximity' which he identified as a limitation upon the test of reasonable foreseeability. It was left as a broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another. It is directed to the relationship between the parties insofar as it is relevant to the alleged negligent act of one person and the resulting injury sustained by the other. It involves a notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained."

It is evident that in the instant case, the plaintiff has established the relevant relationship of "proximity" in accordance with the foregoing passage so that this principle would not deny recovery to the plaintiff providing that the injury she suffered was reasonably foreseeable.

As already alluded to, it is difficult to distinguish in this case between reasonable foreseeability of "personal injury" in the form of "physical" injury to the "skin, flesh and bones" of the plaintiff (which was not claimed), and foreseeability of a shock induced psychiatric illness. As already pointed out, once personal injury of one type is reasonably foreseeable, even if not in fact suffered, it matters not that personal injury of a different kind results, even if it be truly injury of a different kind. But even if the question of psychiatric injury flowing from nervous shock was all that was in issue, it is difficult to see why an ordinary driver would not reasonably foresee that a plaintiff who was narrowly missed as a result of his negligent driving, might suffer a severe shock and a consequential psychiatric illness. Such a possibility is not speculative, fanciful or remote. An illness of this type would be "shock induced", which satisfies the diagnostic criteria for post-traumatic stress disorder on which the plaintiff's claim is based.

Events in this case cannot be said to be a normal every day incident in modern traffic conditions. If a car approaches even a by-stander at excessive speed and narrowly misses, or due to negligent driving mounts the footpath and narrowly misses a pedestrian, it is reasonably foreseeable that a shock might be caused, followed by a psychiatric illness. Depending upon the precise facts of any such case, it cannot be said that a duty of care cannot arise.

Limitations of the type suggested would appear to amount to a reversion to the wariness which Courts adopted many years ago. It was thought that psychiatric illness was too vague a concept to finding a causal relationship between psychiatric illness and careless conduct: Jaensch v. Coffey per Brennan J. at 564-5; Page v. Smith per Lord Browne-Wilkinson at 180-181. It will also appear to be a reversion to the "flood gates" argument expounded by the Privy Council in Victorian Railway Commissioners v. Coultas (1888) 13 A.C. 222, involving a severe shock due to a near miss by a train at a level crossing. The case dealt with various aspects of such a claim including remoteness of damage. At 225 their Lordships said:-

"According to the evidence of the female plaintiff her fright was caused by seeing the train approaching, and thinking they were going to be killed. Damages arising from their sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field open for imaginary claims."

That authority has been soundly criticised by text writers ever since and has been disapproved by Courts of high authority. Kennedy J. in Dulieu v. White & Sons adopted and applied the decision of the Exchequer Division in Ireland in Bell v. Great Northern Railway Company of Ireland (1890) L.R.I. 428 which disapproved the decision. See also Jaensch v. Coffey per 587 per Deane J.; Page v. Smith per Lord Lloyd Berwick at 191. As Deane J. pointed out at 587, "the decision must, however, be viewed in the context of limited knowledge of mental illness in 1888".

On the question of whether a person of ordinary fortitude would regard a near miss as involving no more than a transient fright or alarm, Lord Bridge of Harwich in McLaughlin v. O'Brien at 833 said:-

"Likewise, I would suppose that the legal profession will understand that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological makeup. It is in comparatively recent times that these insights have come to be generally accepted by the judiciary. It is only by giving effect to these insights in the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants."

That passage was adopted with approval by Lord Lloyd of Berwick in Page v. Smith at 188. At 189 His Lordship said that it was not appropriate to ask whether a plaintiff is a person of "ordinary phlegm", just as in the case of physical injury there is no such requirement. The negligent defendant takes the victim as he finds him. It follows that it is wrong to start off with the proposition that the reaction of a plaintiff in a case such as the present indicates a vulnerability or predisposition to psychiatric illness. Any such question, if it exists, goes not to the existence of the duty of care, but to damage: Page v. Smith per Lord Jauncey of Tullichuttle at 176H. In any event, as will subsequently appear, the trial Judge in this case found in effect that the plaintiff was "of ordinary phlegm".

Of some significance is a statement in Page v. Smith by Lord Browne-Wilkinson (one of the majority) at 182:-

"I am therefore of the opinion that any driver of a car should reasonably foresee that, if he drives carelessly, he will be liable to cause injury, either physical or psychiatric or both, to other users of the highway who become involved in an accident. Therefore he owes to such persons a duty of care to avoid such injury. In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his M.E., was 'an eggshell skull personality'. But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such duty of care is established, the defendant must take the plaintiff as he finds him." (emphasis added)

To allow the existence of duty of care in the circumstances of the present case cannot be said to lead to bogus claims. Plaintiffs cannot recover damages for a fright or fear or grief or any other normal human emotion occasioned by the defendant's negligent conduct: Page v. Smith per Lord Lloyd of Berwick at 189; Jaensch v. Coffey. As pointed out by Kennedy J. in Dulieu v. White at 681, legal tribunals have a capacity to recognise and discard unmeritorious claims.

No good reason has been demonstrated why there should be any such limitation in the case of a primary plaintiff who claims damages for personal injury consisting of a psychiatric illness at least where it is shock induced as in the case of post-traumatic stress disorder. The ordinary principles of the law of tort impose all the limitations and restrictions necessary. As in any case in which damages for personal injuries are claimed, the courts must be ever vigilant in detecting false claims. In the current case, on the facts as found by the learned trial Judge, the question of proximity could not be in issue. The risk of physical injury was clearly foreseeable. So also was the risk of psychiatric injury.

In the result, there is no substance in the two suggested qualifications. The plaintiff has established all elements of her cause of action. The learned trial Judge's finding of negligence against the defendant causing damages for nervous shock cannot be disturbed. It is not necessary to express a concluded view on the question posed during argument as to whether the plaintiff could still have succeeded even if Mr Cairns's evidence was accepted that she was standing between the two vehicles close to him when the impact occurred, having regard to her expressed fear of the approaching car and risk of injury to her car and to herself. Apart from the question of whether the medical evidence limited proof of causation of nervous shock to the plaintiff's alleged position in the ditch and to her fear that her car was going to crush her, it is not immediately apparent that some physical harm and/or nervous shock to a person in a position between the two cars could never be reasonably foreseeable. It would depend upon the precise facts. However, the case was not advanced on that basis and may be disregarded.

The final issue to be considered is damages. The appellant contended that damages should be reduced to take into account of what was alleged to be a "pre-existing flaw" in the plaintiff's psychological make-up. It was also contested for the appellant that the sums awarded for economic loss, future medical expenses and pain and suffering were excessive.

The appellant's contention that the plaintiff had a "pre-existing flaw" thus justifying a substantially lesser award, was, according to the appellant's submissions, based upon three principal factors:-

(i) The plaintiff had not called a body of corroborating evidence that she was mentally hale before the accident;

(ii) There were a number of other stresses in her life, both before and after the accident, which could conceivably have triggered the nervous shock; and

(iii) The plaintiff's reaction to the near miss itself and the symptoms she subsequently suffered, indicated a vulnerable predisposition to a psychiatric illness.

As to the appellant's contention that the plaintiff ought to have adduced evidence in support of her assertions that she had been a well-adjusted, normally functioning person prior to the accident, it seems to be a somewhat doubtful proposition that a plaintiff in a case such as this has an onus to show that prior to injury she was mentally sound, any more than a person who suffers a back injury must show that her back was in peak condition before the malfeasance. Of course to demonstrate causation, as every plaintiff must to succeed, the plaintiff must show that the damage of which she complains was more probably than not caused by the negligence of the defendant and not from any other cause.

No authority was advanced to show that in all cases a plaintiff must produce corroborative evidence from persons who knew the plaintiff before the accident of a then healthy state and as to any change observed thereafter, even though this is commonly (and prudently) done in personal injury litigation. In any event, even if the plaintiff did bear such an onus in this case, the very fact of giving evidence that she was previously healthy and able to cope well with life, if such evidence is uncontradicted, would satisfy the civil onus of proof. If the only evidence of the plaintiff's pre-accident functioning is her own evidence that she functioned well, it must be, on the evidence, that the plaintiff has shown that it is more probable than not that she had no "pre-existing flaw" or special vulnerability. The Court is entitled in appropriate cases to act only on the evidence of a plaintiff, at least where it is not in conflict with other accepted evidence, Gaudrey v. Pacific Coal Pty Limited (C.A. No. 268 of 1995, 20th December 1996, unreported).

The fact of other stressors, such as her marriage break-up, operating on the plaintiff before the accident, seems to be an issue of causation rather than an indication of a "pre-existing flaw". Such matters could only indicate a flaw if they were demonstrated to have adversely affected the plaintiff prior to the accident. Indeed the existence of such stressors could conceivably strengthen the plaintiff's case, because it could be asserted that, in the absence of any sign of mental breakdown or other relevant symptoms prior to the accident, the applicant had been a woman of unusual fortitude who had weathered many crises, apparently successfully. There is some medical evidence to support such a view. It might be thought that this portrayed optimism as to her future psychiatric health, apart from the effects of the defendant's negligence, such as to give further support to the trial Judge's findings that she was not unduly vulnerable.

The appellant's submission is more in the nature of an attack on the finding of causation. A number of doctors gave evidence for the plaintiff asserting that the plaintiff had suffered various psychiatric ailments, including post-traumatic stress disorder, and that these were attributable to the accident. The defendant also called medical witnesses one of whom, Dr Reddan, agreed that one of the other stressors above referred to, "may" have caused an "anxiety disorder" even if the plaintiff had not been affected by the accident (R.117). It was not contended that any such stress or stressors did in fact cause any such disorder or particular susceptibility thereto.

Dr Freed, a psychiatrist called for the plaintiff, in his report Exhibit 3 took a detailed history from the plaintiff. He had seen the report from Mr Chittenden and was subsequently supplied with reports of Dr Reddan and Dr Whitby. He also was supplied with a statement by the plaintiff Exhibit 8. He concluded that she suffered from an adjustment disorder as a result of the accident which merged into post-traumatic stress disorder. He also concluded that she suffered a dysthymic disorder as a result of the accident. Before the accident he assessed her global assessment of functioning to be in the superior range. He concluded that "life's problems never seem to get out of hand". She was interested and involved in a wide range of activities, socially effective, generally satisfied with life with no more than everyday problems or concerns. Since the accident, there was a dramatic drop in her global assessment of functioning involving many of the symptoms which she described in evidence. He concluded by saying that the plaintiff did not have any previous medical condition or family-related medical condition which would give rise to her subsequent circumstances. He said she did not have a family history of depression. He also concluded that apart from the psychiatric illnesses from which she was suffering, she was otherwise a person with a normal personality.

Thus the trial Judge was confronted once again with a conflict of evidence. No reason was advanced in this Court why the medical opinions in favour of the defendant's case should have been preferred over the opinions in favour of the plaintiff. Mere evidence that the plaintiff faced other stressors cannot be evidence that she was mentally vulnerable, unless it was shown that the other stressors actually adversely affected her.

As to the reaction to the near miss itself, there is no doubt that the plaintiff was upset immediately prior to the collision but this does not show that she was abnormal in some way before that event. There was a perfectly logical explanation for the situation in which she found herself. For some reason beyond her control, her car, the result of a bequest from her mother, ended up on the wrong side of the roadway in a dangerous position risking injury to it and to other road users. She was naturally concerned about having her car removed to a place of safety as quickly as possible. It was approximately 8.30p.m. at night. The road was dark. There was traffic using the highway in both directions. She was concerned that her young son was home alone and she was anxious to get to him. His Honour was entitled to regard her behaviour at that time as quite normal and not exceptional and not as in any way indicating a pre-existing vulnerability to a psychiatric illness flowing from nervous shock. Her collapse after the collision and necessary conveyance to hospital shows that her condition was then noticeably different. She said in cross-examination that she was quite okay before the accident, in response to a suggestion that she was behaving in an hysterical agitated fashion before the accident.

There is no substance in the submission that an inference should be drawn that she must have had a pre-existing vulnerability because of her reaction to the threat. This involves a notion that a "normal" person would not have "overreacted" as it was submitted, and appears to put the cart before the horse: see Page v. Smith at 189. The trial Judge was entitled to regard the plaintiff as a woman of ordinary "phlegm", and that her reaction was, on the evidence, caused by an actual traumatic event involving fear of severe personal injury to herself with the consequential psychiatric illness. Dr Reddan agreed that what was important was the subjective experience of the plaintiff to the threatened trauma.

It is incorrect to submit that because the plaintiff reacted in the way she did and thereby suffered the symptoms above referred to, she must have been extremely vulnerable to a psychiatric illness in any event. Her accepted past history and the evidence of Dr Freed indicates that she coped in a robust way with life's adversities and, apart from the trauma experienced on 3rd January 1991, there is no reason to conclude that she would not have continued life in the same vein, apart from normal exigencies. The submission, if accepted, would be merely substituting for the plaintiff's actual experience and reaction, the reaction of an unspecified "normal" person judged by some standard not based upon the evidence. The Court is in no position to substitute its own opinion for that of the accepted evidence in the case.

The appellant's contention that the plaintiff suffered from some pre-disposition to mental illness, either because of past events in her life or because of her subjective reaction to the trauma, must therefore be rejected. There is no reason for this Court to interfere with the trial Judge's finding that nervous shock existed and was wholly caused by the accident. The damages to which the plaintiff is entitled should therefore not be reduced for that reason.

The appellant also contended that the learned trial Judge's awards for economic loss, for future medical expenses, and for pain and suffering were excessive although the main attack related to economic loss. His Honour awarded $90,000.00 for future economic loss and future medical expenses combined, $25,000.00 plus interest for past economic loss, and $25,000.00 plus interest for pain and suffering. It is not easy to readily discern from His Honour's reasons, how the sums for economic loss were arrived at.

His Honour stated in his reasons for judgment that he considered that the plaintiff would have been capable, after her youngest child was no longer dependent on her, in about 1993, of earning at least $280.00 per week until the age of about 61. How this particular sum was arrived at is not clear. She was 45 at the date of trial. His Honour held that she had about fifteen years of working life available to her. His Honour considered that in the period between the accident and 1993, the plaintiff could have worked part-time (as she in fact did to some extent - Exhibit 6), and would have worked full-time after that. His Honour, in his award of $90,000.00 for future loss, included the sum of $3,200.00 for psychiatric costs in the three years after the trial, and a sum of $30.00 per week for prescribed medications, until no longer required (pp.264-266). His Honour accepted the submission of counsel for the plaintiff (R.187) that the plaintiff had a 60% chance of improvement after three years.

There seems to be no reason why this Court should not accept His Honour's assessment of $30.00 per week for medication and $3,200.00 for psychiatric treatment, based as each figure was, on an assessment of the evidence. Nor does there seem to be reason to quibble with His Honour's discount of 60% to take into account prospects of recovery.

Exhibit 5 shows the plaintiff's pre-trial earnings over a three year period as $6,926.16, an average of just over $40.00 per week. Exhibit 6 shows the plaintiff's earnings between the date of the accident and 22nd March 1993, a period of just over two years, as $3,264.56, an average weekly earning of some $31.00. The employment in both periods was sporadic and diverse, with no period of employment extending beyond six months. Although admittedly only working part-time, at no time did the plaintiff earn anything close to an average of $280.00 per week.

It does not seem to be justifiable to accept that the plaintiff, merely because she stated such an intention in the witness box, would have gone on to stable full-time employment. No evidence was given of the general employment prospects of a woman of the plaintiff's skills and age, or of appropriate rates of pay for any full-time employment which might have been open to her. The plaintiff may have obtained full-time employment at some time in the future, but this is by no means certain. It should be regarded only as a possibility. It is appropriate to discount by 60% over the entire period and not merely the first three years, because this takes into account the plaintiff's general prospects of recovery over the entire period. Even if it is accepted that the plaintiff does not have good prospects of recovery in the first three years, it seems to me that a 60% reduction adequately takes into account the prospects of recovery over the entire fourteen or fifteen year period until retirement.

In the circumstances therefore, a global sum of $160.00 per week should be allowed as from March 1993, with post trial earnings discounted by 60% over the entire period to take account of prospects of recovery. This also takes into account the plaintiff's demonstrated residual earning capacity of at least $30.00 per week, as shown in Exhibit 6. There should be no award for past economic loss prior to March 1993 because the schedule (Exhibit 6) clearly shows that the plaintiff was earning very nearly as much in this period, on average, as in the three years before the accident.

Therefore for pre-trial economic loss, the sum of $160.00 per week from March 1993 until trial, some 150 weeks should be awarded. This comes to $24,000.00. Interest at 6% per annum over three years comes to approximately $4,320.00. The sum of $28,320.00 should be awarded for past economic loss.

For future economic loss, the sum of $160.00 per week plus $30.00 per week for medication until the retirement age of 60 comes to approximately $100,510.00 when discounted at 5% per annum. This should be discounted by 60% over the whole period and not merely after three years. The figure produced is approximately $40,200.00. To this must be added $3,200.00 for future psychiatric care. The award for future loss should be in the total sum of $43,400.00.

The trial judge's assessment of damages for pain and suffering and loss of amenities, should not be interfered with. Reasonable compensation for the plaintiff's damages is the sum of $99,602.63 made up as follows:-

Accordingly the appeal against liability should be dismissed and the appeal on the assessment of damages allowed. The damages awarded by the learned trial Judge in the sum of $147,882.63 is reduced to $99,602.63. As the great bulk of the appeal was taken up with argument as to liability in respect of which the appellant has failed, the plaintiff should be ordered to pay one-half of the appellant's costs of the appeal to be taxed.

The extensive analysis of the facts which Lee J has set out in his reasons for judgment relieves me of the obligation to traverse that territory.

I agree with the conclusions which His Honour has reached on the questions of liability and contributory negligence, and I agree generally with His Honour's reasons for those conclusions.

It is of course true that machines in common use, even computers, do not develop minds of their own. On the other hand, it is a matter of common experience that from time to time they appear to the user to do so. Thought processes involving personification of machines are common enough and perversity is a quality which most people would have attributed to a machine from time to time. That is particularly the case when a machine develops an intermittent fault. Who has not incurred expense in calling out a tradesman only to have the machine in question behave in his presence with perfect propriety? And is it not part of the general experience that when a car is placed before a mechanic at the service station, the fault which one seeks to have remedied disappears? In reality, these are not situations where machines are performing in a way which defies rational explanation. These are examples of cases where the explanation for the behaviour of the machine is unknown. No doubt with sufficient resources, and thorough investigations, explanations would emerge. In practice, the time and resources required are often not available.

In such cases, there is no evident rational explanation for the behaviour of the machine. Should one for that reason conclude that the machine was probably not defective? I think not. To my mind, if an otherwise credible witness reports abnormality of behaviour by a machine, the absence of any rational explanation for that behaviour does not afford sufficient reason to doubt the witness's account; nor does it destroy the credibility of the witness.

So, in my judgment, it is here. The learned trial judge has accepted the repondent's account of events and has accepted her as a credible witness. He was not obliged to do so, but he has done so. His findings on credibility were not challenged in the appeal, nor could they have been challenged. In my judgment, the respondent's account was not so "clearly improbable" as to warrant interference by this court.

On the particular questions of causation and proximity, I agree with what has been said by the Chief Justice.

On questions relating to quantum, I agree with what has been said by Lee J, with one exception. I do not agree with His Honour's assessment of the position relating to the respondent's pre-existing vulnerability. On that issue, I agree with the views of the Chief Justice. Like him, I would regard the respondent's vulnerability as an additional reason to support the reduction of damages proposed by Lee J and would make no further discount.

I would allow the appeal. I would set aside so much of the order of the District Court as adjudged that the plaintiff recover against the defendant by election the sum of $147,882.63 and in lieu thereof order that judgment be entered for the plaintiff against the defendant by election for $99,602.63. Most of the work involved in the appeal, and most of the submissions to the Court, both oral and in writing, were concerned with the questions of liability and contributory negligence. For this reason I would order that the respondent pay only one half of the appellant's costs of the appeal, to be taxed.

At a glance

Court

Decision date

Before

Source

Judgment (163 paragraphs)

Parties