Holberts Oyster Supplies Pty Ltd v Stephenson

Supreme Court of NSW|2013-06-21|Before: McCallum J

Judgment 1HER HONOUR: This is an appeal from a decision of the Local Court sitting in its General Division. The action in the Local Court was a claim in negligence arising out of a motor vehicle accident in which a truck owned by the plaintiff collided with a spare wheel which had fallen onto the freeway from a trailer owned by the second defendant, Australia Overnight Trucking Co Pty Ltd. The trailer was at the time of the accident being towed by a truck driven by Mr Sidney Stephenson, the first defendant. 2The plaintiff's case at first instance was based in part on the principle of res ipsa loquitur, a Latin expression meaning "the thing speaks for itself". The learned Magistrate rejected the application of that principle and entered a verdict for the defendant. The plaintiff appeals from that decision.

The principle of res ipsa loquitur 9The principle of res ipsa loquitur was considered by the High Court in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121. Although expressed in slightly different terms in the several judgments, at least two clear legal principles are confirmed by that decision. The first is that the principle of res ipsa loquitur is not a distinct, substantive rule of law but merely a term which describes an inferential reasoning process. The second is that the onus of proof remains on the plaintiff even where the principle is applicable. Its application does not remove the requirement for the plaintiff to satisfy the court on the balance of probabilities that negligence on the part of the defendant was a cause of the plaintiff's damage: at 132-133 [22] per Gleeson CJ and McHugh J; at 146-147 [69] and 148 [72] per Gaudron J; at 162 [108] per Kirby J and at 171 [134]-[135] per Hayne J. It simply acknowledges a process of reasoning by which the onus can be satisfied. 10Gleeson CJ and McHugh J said (at [24]) that: ... while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. But it does nothing more. 11In Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99, res ipsa loquitur was described in the joint judgment of Dixon CJ, Webb, Fullagar and Taylor JJ as not a new principle of law but "a general index to those special cases in which mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence" (at 114). It is not to be understood as being in the nature of a legal presumption of negligence but only a potential basis for an inference that negligence must have occurred. 12It is established that, before the reasoning process based on res ipsa loquitur can be invoked, three conditions must be satisfied which together form the factual foundation of the inference, as follows: (a)the cause of the incident must be unexplained; (b)the incident must be of such a kind that, in the common knowledge and experience of mankind, it does not ordinarily occur without negligence; (c)the thing that caused the incident must be in the exclusive control of the defendant. 13However, the satisfaction of those three conditions does not mandate the application of the principle of res ipsa loquitur. As observed by Kirby J in Schellenberg (at 162-163 [108]): ... the invocation of the manner of reasoning which the maxim describes does not, as it has been traditionally expounded, involve a shifting of the legal burden of proof from the plaintiff to the defendant, such that, unless the defendant establishes a want of any negligence on its part, it will be presumed to be liable. ... The defendant can remain silent and still succeed. If, in the particular case, the manner of reasoning described as res ipsa loquitur is applicable, it merely renders it permissible for the tribunal of fact to draw the inference which the plaintiff invites. It is not obligatory, as it would be if the maxim had the effect of creating a presumption which the defendant was obliged in law to rebut. [footnotes omitted] [emphasis in original]. 14It may be acknowledged that there will be circumstances where the inference is so compelling as in effect to require the defendant, in order to succeed, to adduce evidence to show that the accident happened without negligence on his or her part: Nominal Defendant v Haslbauer [1967] HCA 14; (1967) 117 CLR 448 at 453, 456 per Barwick CJ; Mummery at 120 per Dixon CJ, Webb, Fullagar and Taylor JJ. It has been said that, in that sense, the principle may place a forensic or evidential burden on the defendant: Schellenberg at 163 [110] per Kirby J. 15Ultimately, however, any inference to which the principle gives rise is but one factor to be taken into account along with all the other evidence in the matter: Franklin v Victorian Railways Commissioners [1959] HCA 48; (1959) 101 CLR 197 at 201 per Dixon CJ. As stated by Windeyer J in Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493 at 500: To say that an accident speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn - it does not mean that this inference must necessarily be drawn, although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse ... But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case, including such inference as may be drawn from the happening of the accident ...

Grounds of appeal 16It is necessary to give careful consideration to the grounds of appeal against those principles. 17The appeal is governed by the Local Court Act 2007. Under that Act, there is an appeal as of right on a question of law: s 39 of the Act. An appeal on a ground involving a question of mixed law and fact may only be brought by leave of this Court: s 40 of the Act. There is no right of appeal on a question of pure fact. 18The plaintiff's summons filed 20 August 2012 identifies the following grounds of appeal: 1. Her Honour erred in concluding that the principle of res ipsa loquitur did not apply to the plaintiff's claim in circumstances where her Honour found: a. There was an absence of explanation for the wheel of the defendant's trailer falling to the roadway and causing the collision; b. The occurrence of the wheel falling from the defendant's trailer was something which did not ordinarily occur without negligence; and c. The trailer and the wheel were under the control of the defendants. 2. Her Honour erred in concluding that the plaintiff was obliged to establish the reason for why the wheel escaped the defendant's trailer, notwithstanding her Honour's findings in relation to the circumstances. 3. Her Honour erred by failing to find that the plaintiff had established that the defendants were liable for the collision in light of her Honour's findings in relation to the circumstances. 4. Her Honour erred by failing to take into account the lack of explanation from the defendants as to why the wheel had separated from the trailer on the day of the collision. 19As already explained, the so-called principle of res ipsa loquitur is not a rule of law - it merely describes a process of inferential reasoning. The drawing of inferences is an aspect of the task of determining the facts. Upon reflection since hearing the appeal, I have come to the conclusion that, although the plaintiff's grounds of appeal are framed with direct or implicit reference to the application of the principle of res ipsa loquitur, each of those grounds ultimately reduces to a purely factual challenge to the Magistrate's findings. 20If that is correct, the appeal is incompetent (in the legal sense) and must be dismissed. However, it is arguable that the grounds do raise questions of mixed law and fact. Specifically, it could be said that the grounds raise the question whether the Magistrate correctly applied the legal principles stated in Schellenberg. On that analysis, the appeal is not incompetent but leave is required. Counsel for the defendants did not contend that the appeal is incompetent and very fairly took the position that, if the Court were of the view that the grounds of appeal raised questions of mixed law and fact, leave was not opposed. 21In those circumstances and in case my view that the grounds raise questions of pure fact is wrong, I propose to the determine the appeal on the assumption that questions of mixed law and fact are raised and that leave to appeal on those grounds should be granted. 22The defendants filed a cross-summons but it is only enlivened in the event that the plaintiff is successful on the primary appeal. In light of the conclusions I have reached, it is not necessary to determine the issues raised by the cross summons.

The proceedings in the Local Court 23The plaintiff's case in the Local Court rested entirely on the evidence of Mr Byrne. The defendants called evidence from Mr Stephenson and the mechanic who serviced the trailer. 24In the absence of any direct evidence as to what caused the spare wheel to become dislodged from the trailer, the plaintiff's case rested heavily on the inference sought on the basis of res ipsa loquitur, and it is that principle which was the focus of her Honour's judgment. There was no evidence upon which a finding of negligence could be made on any other basis. 25The first and third limbs of the factual foundation for the inference were not contested. The trailer was within the control of the defendants (at least at the time of the accident) and there was no explanation available on the evidence as to how the spare wheel became separated from it. The Magistrate correctly identified the area of controversy as being the second limb, whether the incident was of such a kind that, in the common knowledge and experience of mankind, it does not ordinarily occur without negligence. 26Contrary to the premise of ground 1 set out above, the Magistrate was not satisfied that the separation of the wheel from the trailer was an incident which, in the common knowledge and experience of mankind, was unlikely to occur without negligence. Her Honour accordingly held that the principle of res ipsa loquitur did not apply to the plaintiff's case. Her Honour then turned to the other heads of negligence relied upon by the plaintiff and rejected each of those. There is no challenge to those conclusions. On the strength of the findings made, her Honour entered a verdict for the defendants.

Grounds 1 and 3 27It is convenient to consider grounds 1 and 3 together. The issue raised by those grounds is whether the Magistrate was wrong to reject the application of res ipsa loquitur to this case. The plaintiff submits that such a conclusion was not open on the established facts. It was submitted that the Magistrate erred in her finding in respect of the second limb of the foundation due to a misapplication of the relevant test. 28The evidence established that the defendants were in control of the trailer and that the spare wheel was stored beneath the trailer on a rack and held in place by a T-bar and straps. That was the subject of evidence from the mechanic. The mechanic described the trailer as a flatbed trailer that is ordinarily attached to a prime mover. The trailer had been serviced approximately two weeks prior to the accident, at which time no defect was observed and the tyre appeared to be correctly held in place. Services of that kind were undertaken monthly. There was no evidence as to what happened to the trailer in the two weeks since the service. 29The incident itself involved smoke coming from the back of the trailer, a loud bang and the trailer being lifted up in the air. That was the unchallenged evidence of the first defendant. A short time later, the first defendant inspected the trailer and observed the straps to have been "burnt through". 30As to the second limb of the factual foundation, the Magistrate said: The question in relation to limb two of the test is whether the occurrence was of such kind that it does not ordinarily occur without negligence. Tyres and any other objects from a vehicle do not ordinarily separate from the body of a vehicle and end up in the middle of the road, however, does that mean that such an occurrence does not ordinarily occur without negligence? [emphasis added] 31Her Honour referred to the evidence of the mechanic that no defect was identified by him in the mechanism that held the spare wheel in place. Her Honour referred also to the observations made by the first defendant upon his inspection of the trailer shortly after the incident. She found there was no other evidence as to how the wheel became separated from the trailer, including a lack of expert mechanical evidence. 32Her Honour then made the following remarks: There may be a number of possible reasons why this occurred. The ropes were faulty, the T-bar was not properly secured, there was a crack in the T-bar. There may have been other external reasons, something on the road that came into contact with the tyre rack causing friction. There may have been a latent defect not discoverable on visual inspection. These are all possibilities but none of them is supported by the evidence before me. They are matters of speculation or conjecture not evidence. How a binding on a tyre rack became loose is not an occurrence within the common knowledge and experience of mankind such that the occurrence is unlikely to occur without the negligence on the part of the defendants. [emphasis added] 33I do not think those remarks reveal a misapplication of the relevant principles. On the contrary, the Magistrate gave proper consideration to the many ways in which an incident of that kind could occur in the absence of negligence on the part of the operator of the trailer. Those were relevant matters to identify in an assessment of the second limb of the factual foundation. 34In my view, it was open to the Magistrate to conclude that this was not an incident of the kind that, in the common knowledge and experience of mankind, does not ordinarily occur without negligence. 35There was little evidence to assist in making the assessment required by the second limb of the factual foundation. The plaintiff, in a case based on res ipsa loquitur, is not required to adduce evidence to rule out all other explanations of the incident. There will be cases, however, where a failure to narrow the possibilities will make it difficult to draw the inference sought. In Schellenberg, Gleeson CJ and McHugh J (at 140 [44]) applied the following statement of Dixon CJ, Webb, Fullagar and Taylor JJ in Mummery at (117): In other words the question is whether the latter occurrence was such 'as in the ordinary course of things does not happen if those who have the management use proper care'. To that inquiry in this case there cannot be an affirmative answer. We are told nothing of the characteristics of circular saws and we are not told that such an occurrence is usual or unusual or indeed highly improbable. Moreover we are told nothing concerning the size of the piece of wood in question and it is difficult, if not impossible, in these circumstances to attribute the accident to some act of negligence on the part of the operator. If the question is posed 'Was the accident such as in the ordinary course of things does not happen if those who have the management use proper care?' the answer, on the evidence in the case, must be 'We simply do not know.' One may but conjecture but cannot as a matter of inference attribute negligence to the defendant's foreman. [emphasis added] 36Similarly, in Kasupene v Ajax Foundry Pty Ltd [2006] NSWCA 309, the plaintiff was injured when a heavy tray being lifted by an overhead crane fell on his foot. The plaintiff's case relied upon the trial judge drawing an inference of negligence upon the basis of res ipsa loquitur. In relation to the second limb of the factual foundation, McClellan CJ at CL (as his Honour then was) said: To my mind the principle has no application to the present case. Although the ordinary person well appreciates that a load being lifted by a crane should not fall onto a person's foot the cause of the event is a matter about which the ordinary person would have little if any understanding. There may be, as the trial judge identified, many reasons why such an event occurs without negligence of the operator. Without any evidence which could allow those other possible explanations to be put aside it is not possible to infer that it was a negligent act of the defendant for which it was liable, which caused the accident. [emphasis added] 37The same may be said of the present case. This was a case in which other possible causes could not be ruled out. There were a number of reasons why the wheel may have become detached. To infer that it became detached because of the negligence of the defendants assumes that one or more of those explanations are more probable than the others. There was no basis for such an assumption on the evidence: see Schellenberg at 175 [150] per Hayne J. 38The plaintiff relied on a series of authorities to support a conclusion that objects do not ordinarily fall from moving vehicles unless the driver is negligent. I do not think those cases assist. 39In Bellizia v Meares [1971] VR 641, a man was injured when he was struck by a bale of wool that fell from a truck. In a trial before a judge and jury, the judge refused to direct the jury that it was open to them to draw an inference of negligence upon the basis of res ipsa loquitur. On appeal to the Full Court of the Supreme Court of Victoria, this was held to be erroneous. The Court stated (at 644): The authorities we have cited show that in the absence of an explanation for the fall of the bale which the jury accepted, the case was one to which the doctrine of res ipsa loquitur was applicable, and it called, we think, for a clear direction that, in those circumstances, it was open to the jury to find negligence on the part of the defendant from the fact that it fell from the semi-trailer and struck the applicant. [emphasis added]. 40It does not follow that the jury was obliged to apply the principle. 41The plaintiff also relied on the decisions in Incorporated Nominal Defendant v Knowles [1987] VR 138, Nominal Defendant v Genn [2004] NSWCA 306 and Government Insurance Office of NSW v Best (unreported, 2 June 1992, New South Wales Court of Appeal). None of those authorities establishes that an inference of negligence must be drawn in all cases where an object falls from a motor vehicle in unexplained circumstances. They merely indicate that such an inference will usually be open in such circumstances. The ultimate inference or lack of inference drawn will depend on the facts of a given case and the other evidence: Franklin v Victorian Railways Commissioners at 201 per Dixon CJ; Anchor Products Ltd v Hedges at 500 per Windeyer J. 42The Magistrate, after hearing all the evidence, was disinclined to draw an inference of negligence. It cannot be said that an inference of negligence was the only inference available on the facts. Even if the incident was within the common knowledge and experience of mankind (which is doubtful), there were other inferences available on the facts that did not involve negligence on the part of the defendants. 43In my view, grounds one and three must be rejected.

Ground 2 44Ground 2 contends that her Honour erred in concluding that the plaintiff was obliged to establish the reason the wheel escaped from the defendant's trailer, "notwithstanding her Honour's findings in relation to the circumstances". I do not think that is the approach her Honour took. Her Honour set out the three limbs of the factual foundation as stated in Schellenberg. She then stated (correctly) that, "once the cause of the occurrence is identified, the principle of res ipsa loquitur has no application." Her Honour's reasons do not suggest that she dismissed the plaintiff's claim on the basis that the plaintiff had failed to adduce evidence that explained the exact cause of the incident. She simply recorded, as a matter of principle, that there is no occasion for the application of the principle in a case where the cause is known. That was a correct analysis. The principle assumes the absence of an explanation for the "thing" (say, a barrel rolling off a balcony) and leaves it open to the trier of fact to determine whether, nonetheless, the fact of the barrel falling onto the street below itself speaks of negligence in all the circumstances of the case. 45In the present case, the Magistrate was able to postulate other possible causes for the falling of the wheel that did not entail negligence. Her Honour was accordingly not satisfied that the thing (the wheel becoming detached during a journey on the freeway) spoke for itself. I do not think she approached the case on the premise that the plaintiff had to prove the specific cause of the incident. But, absent such proof, in all the circumstances of this case, the result was that negligence was not established, as it had to be. Ground 2 should be rejected.

Ground 4 46The fourth ground of appeal asserts that the Magistrate failed to take into account the lack of explanation from the defendants as to why the spare wheel became dislodged. Upon analysis, that ground appears to assume a premise that is inconsistent with the principles stated in Schellenberg. I am not satisfied that her Honour's reasons reveal error as contended. 47As already noted, the principle of res ipsa loquitur does not displace the burden of proof in civil proceedings. If a plaintiff succeeds in establishing a prima facie case of negligence on the basis of res ipsa loquitur, a defendant may in effect be required to answer that case. However, the defendant is not compelled to do so and, as noted by the High Court, can remain silent and still succeed: Schellenberg at 162-163 [108]. The issue whether to draw an inference of negligence must be determined having regard to all of the evidence in the case. The plaintiff is not automatically entitled to a favourable inference, even where each limb of the factual foundation is established. The factual foundation is not a test for the application of a legal presumption. It is a process of reasoning the result of which is to render it open to the fact finder to draw an inference of negligence. 48This ground of appeal must be rejected, in my view.

Conclusion and orders 49It follows that the appeal must be dismissed. 50I make the following orders: (a)that leave to appeal be granted; (b)that the appeal be dismissed; (c)that the plaintiff pay the defendants' costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2014

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