Hunt v Watkins [2000] NSWCA 229 | Case summary

CA 40466/99 DC 44/92 STEIN JA FITZGERALD JA HEYDON JA Wednesday, 23 August 2000 Karen Joy HUNT v Paul David WATKINS JUDGMENT 1 STEIN JA: The appellant, Karen Joy Hunt, whom I will refer to as the plaintiff, sued the respondent, Paul David Watkins (the defendant) for damages for negligence for personal injuries. The injuries were received in an accident on 20 April 1990 when the plaintiff was a passenger in a Dodgem Car being operated by the defendant at the annual Wauchope show. The dodgem car was being driven by the plaintiff's de facto husband, Mr O'Leary. 2 At the close of the plaintiff's case on 1 June 1999 the defendant sought a verdict by direction in his favour. The application was made under Part 26 Rule 8 of the District Court Rules. The trial judge acceded to the application and entered a verdict for the defendant and ordered the plaintiff to pay the defendant's costs. It is from these orders that the plaintiff appeals. 3 The judge concluded that there was no evidence of causation. His Honour noted that the plaintiff's evidence was that Mr O'Leary sought to avoid a huddle of dodgem cars which had come together in the middle of the rink. In avoiding the huddle the dodgem went through a puddle of water lying on the surface of the rink. When the dodgem hit the puddle it went out of control and crashed into a barrier around the outside of the rink causing the plaintiff's knee to be severely injured. The plaintiff gave evidence of having noticed a boy attempting to sponge water off the floor of the rink. She also said that immediately after her dodgem crashed into the side barrier, another car hit the barrier with force sufficient to dislodge it. 4 His Honour noted that the absence of Mr O'Leary from the witness box meant that the plaintiff's case relied entirely on her evidence. This meant that her evidence of Mr O'Leary losing control of the car as it hit the pool of water, and of his seeking to regain control, were no more than assumptions on her part. 5 His Honour also noted that there was no expert evidence called about the nature of dodgem cars or the effect of water on the surface of the rink. The judge concluded that there was no evidence of the cause of the accident, nor was it one which the defendant should have foreseen. 6 What is the test for the Court to apply when considering an application by the defendant for a verdict at the conclusion of the evidence in a plaintiff's case? 7 Rule 8(2) speaks of whether 'on the evidence given' judgment for the plaintiff 'could not be supported'. The District Court rule is in the same form as Part 34 Rule 8 of the Supreme Court Rules which the Court of Appeal considered in Mailman v Ellison (unreported, 25 November 1993). The judgment of the Court was given by Mahoney JA and concurred in by Kirby P and Sheller JA. 8 Mahoney JA noted that the judge at first instance had approached the application on 'the jury basis'. That is, that the plaintiff's case was to be dismissed 'if the evidence adduced was such that a verdict in his favour by a jury would, if challenged, necessarily be set aside'. His Honour noted that the appeal had proceeded on the same basis. Although the question of the construction of Rule 8 was not argued, it seems that Mahoney JA accepted that the 'jury basis' was the proper test. I obtain this from Mahoney JA's reference to other possible considerations, for example, credibility of the plaintiff, which poses 'an issue which is different from the jury basis'. Mahoney JA further noted that it was accepted in the Court of Appeal that the 'jury test' was to determine the appeal. 9 Mahoney JA observed that the trial judge had accepted that he should 'take the plaintiff's evidence at his highest' to see whether a judgment for the plaintiff would satisfy the jury test. Mahoney JA said that it is: … important to maintain the distinction between the conclusion of fact which he might draw and the conclusion which, without error, a jury or fact-finding tribunal could make upon the evidence without the finding being set aside on appeal. I accept Mr Bennett's submission to the effect that a finding of this kind would have been open to the jury. [at 12-13] 10 I agree with the analysis of the test by the Court in Mailman. See also the remarks of Jordan CJ in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 3. A jury test is appropriate, and in applying it, the plaintiff's evidence should be taken at its highest. 11 In the plaintiff's evidence in chief she said that in order to avoid a pile-up with the other cars in the middle of the floor, Mr O'Leary swerved and they ended up in the pool of water. She said that the dodgem car 'sort of slid across and we hit … the edge of the rink'. The plaintiff said that Mr O'Leary had been attempting unsuccessfully to regain control of the dodgem. Prior to this occurring Mr O'Leary had been driving the dodgem car for around 10 minutes while in control and with no difficulty. 12 In cross examination the plaintiff emphasised that the dodgem car 'went slam into the side timber' and that this had not happened before. Further in cross examination she said that: … we … went to avoid of a group of cars that had all got stuck together in the middle of the rink and Paul had swerved to miss this and ended up in this puddle that people were avoiding because of the sparks and the losing control bit and we hit it and boom we hit the side. 13 Also she said: We hit the water and there was water all over that rink, drizzling rain, the roof was leaking and there was that big, one great big puddle that people were trying to avoid and there was the group, they'd all got stuck in the middle and Paul swerved to miss getting caught up in that and we got into that puddle and he lost control and he hit the, went slam into this wood on the side. 14 It was put to her that it was her assumption only, to which she replied 'I was there'. She was then asked why Mr O'Leary did not stop the car. She replied: Because the water with the electricity, I don't know but he lost control and had no, you had no control over where the car was going. 15 The plaintiff was asked whether Mr O'Leary had failed to take a bend. She responded: Well once the car hit the puddle he lost control of the vehicle and it slid and stopped when we hit the, it banged into the support on the side of the rink. 16 The plaintiff was asked whether she was assuming that Mr O'Leary had lost control in the water. She answered in the affirmative. It seems that it was this answer which contributed to his Honour saying that the plaintiff's evidence of Mr O'Leary losing control in the pool of water was no more than an assumption. 17 Although I have summarised or referred to the principal portions of the plaintiff's evidence about the dodgem car going out of control when it hit the pool of water, it may be noted that there are many other illustrations of similar evidence of the plaintiff in cross examination. 18 The reason why there are so many examples is that the plaintiff was cross examined closely and intensely about the facts of the incident. She was also cross examined about speed and she said that the dodgem car 'slid at a very fast rate and hit the piece of timber on the edge straight on'. Indeed, a reading of the whole of the plaintiff's evidence is indicative of its consistency as to the circumstances of the accident. 19 In my opinion, a fair reading of the plaintiff's evidence was not that she assumed that Mr O'Leary had lost control, rather that she observed him lose control and struggle to regain it. The question arises whether a jury would be entitled to infer from the plaintiff's evidence that the pool of water on the rink was the cause of the dodgem car slamming into the side of the rink at a speed faster than was normal. 20 Applying the jury test, the plaintiff's evidence must be taken at its highest. Counsel for the respondent accepts that this is so and also accepts that the appropriate test is the jury one. The question therefore is whether there was evidence on which the jury could have found in the plaintiff's favour. In my view, there was such evidence. Certainly the evidence was not such that a verdict in the plaintiff's favour by the jury would necessarily be set aside if challenged. 21 It follows that his Honour should not have entered a verdict for the defendant pursuant to the District Court rule. Accordingly, I would uphold the appeal with costs and set aside the judgment and verdict for the defendant. The respondent should have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. 22 The question arises as to what consequent orders should be made. There is no argument that the matter ought be remitted to the District Court and, fortunately, the parties are agreed that a new trial is the appropriate order.

Hunt v Watkins

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