Lafranchi v Transport Accident Commission [2006] VSCA 81

The background

1 The respondent, the Transport Accident Commission ("TAC"), brought a proceeding in the County Court against the appellant, Ms Lafranchi, seeking indemnity under s.104 of the Transport Accident Act 1986 ("the Act"). The indemnity was sought for payments made by TAC under Part 3 of the Act to Ms Lafranchi's mother, Ms Ivy Thomson, who was injured in a transport accident. Ms Thomson was a passenger in a car driven by Ms Lafranchi, which left the road, mounted a gutter and hit a power pole. No other vehicle was involved in the accident.

2 Under s.104 of the Act, TAC is, in certain circumstances, entitled to an indemnity for payments from the person(s) who would otherwise have been legally liable to the injured person. In the present case, TAC was entitled to indemnity if it established, on the balance of probabilities, that the accident which injured Ms Thomson was caused by the negligence of Ms Lafranchi. The trial Judge so held, and Ms Lafranchi was ordered to indemnify TAC. She appeals from that judgment.

3 In evidence, Ms Lafranchi was unable to explain why she had driven off the road. She could not recall the circumstances of the accident at all. She had a zero blood alcohol content, and there was no evidence that she was fatigued or under stress. Her mother gave evidence that it was a fine day, there was little traffic and road conditions were good. Shortly before the accident, she and her daughter were "just having a chat, going along."

4 Ms Thomson testified that, very shortly before the collision, she saw "a pole or a bush" close to the car. She asked her daughter, "Jude, Jude, what are you doing?" At that time, according to Ms Thomson, Ms Lafranchi was sitting in a normal driving position, holding the steering wheel and looking straight ahead. She did not respond to her mother's question.

5 Both TAC and Ms Lafranchi led expert evidence about possible medical causes of the accident. Both experts said that there were a number of possible reasons why Ms Lafranchi had veered off the road and that it was not possible to state with certainty what had caused the accident. The expert called by Ms Lafranchi, Dr Gilligan, testified that it was likely that Ms Lafranchi had driven off the road because she had blacked out. TAC's expert witness, Dr Odell, said that a blackout was unlikely, and that Ms Lafranchi might have had a temporary lapse of concentration or fallen asleep. (The expert evidence is discussed in more detail later in this judgment.)

The reasoning of the trial Judge

6 TAC, as the plaintiff at trial, relied on the principle of res ipsa loquitur[1] ("the RIL principle"). As the learned trial Judge noted, the essential elements of res ipsa loquitur were restated by Gleeson CJ and McHugh J in their joint judgment in Schellenberg v Tunnel Holdings Pty Ltd,[2] in the following terms:

(a) there must be an absence of explanation of the occurrence that caused the injury;

(b) the occurrence must have been of such a kind that it does not ordinarily occur without negligence; and

(c) the instrument or agency that caused the injury must have been under the control of the defendant.[3]

7 These three requirements (which we will refer to as the "necessary conditions" for the application of the RIL principle) are, as their Honours made clear, cumulative. All three necessary conditions must be satisfied if the RIL principle is to apply to the case at hand.

8 At the trial, counsel for Ms Lafranchi conceded that the second and third of the necessary conditions were satisfied. That is, the accident was of such a kind that it would not ordinarily occur without negligence, and the vehicle (being the instrument that caused the injury) was under Ms Lafranchi's control.

9 The first necessary condition - an absence of explanation of the accident - was not conceded. As the judgment records, counsel for Ms Lafranchi argued that there was an explanation for the accident, namely that she had suffered a blackout. His Honour rejected that submission. He regarded the evidence of both medical experts as being, of necessity, "a matter of speculation based on very limited facts." His Honour said:

"There is ... simply no evidence that the defendant suffered any loss of consciousness. In the absence of any factual basis for such an opinion any such conclusion can only be a speculation. It is plain that the impact with the pole was a violent one causing serious injuries to the plaintiff's mother. ... Ms Lafranchi does not believe that she had a blackout and indeed she conceded that if she thought she was subject to blackouts she would not continue to drive a motor vehicle. She has never had a blackout before or since."[4]

10 Having rejected the explanation advanced on behalf of Ms Lafranchi, the learned Judge proceeded to reach his own conclusion as to how the accident had come about:

"It is in these circumstances, in my opinion, more likely that [Ms Lafranchi] either lost concentration or perhaps just closed her eyes for a few seconds. Her medical history both before and after the accident lends support for this view combined with her own complete lack of explanation. In addition there is simply an absence of evidence that she suffered from an unexplained blackout which resulted in the vehicle leaving the road and hitting a pole.

Accordingly I find that the most likely cause of the accident was either lack of attention or a micro nap after having been driving for several hours on that day."[5]

11 We shall say more about these findings in a moment. What is relevant for present purposes, however, is his Honour's ultimate conclusion, which he expressed in these terms:

"In the above circumstances the inference of negligence which is raised by the circumstances of the accident has not in any way been rebutted and accordingly there should be judgment for the plaintiff."[6]

12 Plainly enough, the reference to "the inference of negligence ... raised by the circumstances of the accident" signifies his Honour's application of the RIL principle. That is, his Honour was satisfied that all three necessary conditions were satisfied. Moreover, there being - in his Honour's view - no evidence to support a non-negligent explanation of the accident, the inference of negligence to which the application of the RIL principle gave rise was sufficient to establish TAC's negligence case on the balance of probabilities.

13 With respect to the learned trial Judge, once he had rejected the plaintiff's explanation - that the accident had been caused by her having had a blackout - and had concluded that the RIL principle was applicable, it was neither appropriate nor possible for him to consider in what particular way Ms Lafranchi might have been negligent. By definition, the RIL principle can only apply when there is no explanation. The Judge's conclusion that the principle applied precluded the possibility that any specific cause could be found.

14 Moreover, as senior counsel for TAC readily conceded, there was simply no evidence on the basis of which his Honour could have been positively satisfied that the accident was caused either by a lack of attention or by a "micro nap". Since, however, the application of the RIL principle rendered the positive finding as to causative negligence superfluous, the absence of evidentiary support for it is, in the end, immaterial.

15 The issue which Ms Lafranchi wishes to agitate on this appeal is whether the RIL principle was applicable at all. As respondent to the appeal, TAC vigorously opposes the Court's allowing Ms Lafranchi to do this, given her concession at trial that the second and third of the necessary conditions were satisfied. The critical concession - which Ms Lafranchi wishes to withdraw - was in relation to the second condition, namely, that the accident was of such a kind that it would ordinarily not have occurred without negligence on the part of the driver.

16 Accordingly, the first question on the appeal is whether the concession made at the trial precludes Ms Lafranchi from arguing on this appeal that the RIL principle was inapplicable. Three other issues potentially arise, depending on the answer to the first. They are:

1. Was the trial Judge correct in applying the RIL principle to the circumstances of this accident?

2. Did the trial Judge erroneously treat the RIL principle as shifting the burden of proof to Ms Lafranchi to show that she was not negligent?

3. Was the trial Judge correct in holding, on the balance of probabilities, that the accident was caused by Ms Lafranchi's negligence? (It was common ground that this Court was in as good a position as the trial Judge to decide the issues of negligence and causation).

1. The effect of the concession made at trial

17 It was submitted for TAC that, having made the concession at trial about the second necessary condition, Ms Lafranchi should not be permitted on this appeal to withdraw that concession. Reliance was placed on the following passage from the joint judgment of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon:[7]

"It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and interference with their personal and business affairs."[8]

18 Two propositions emerge clearly from this passage. First, a party will not be permitted to raise on appeal a point not taken at trial unless the appeal court is satisfied that the course of the trial would not have been affected had the point been taken at the trial - for example, by the calling of other evidence, or by witnesses being cross-examined differently, or by the trial Judge making findings of fact which, in the event, he/she was not required to make.

19 There is abundant authority for this first proposition, as their Honours noted.[9] In G Vaccari Investments Pty Ltd v Vega Press Pty Ltd,[10] the Full Court of the Supreme Court of Victoria refused the appellant permission to raise on appeal a point expressly conceded below. The concession having been made, counsel at the trial did not analyse the evidence bearing upon the issue, the evidence was not adverted to by the trial Judge in his reasons and no findings of fact were made. Permitting the appellant to withdraw the concession would therefore have obliged the appeal court to -

"search for and then consider for itself the evidence touching upon the new ground, and then make findings of fact disadvantaged by not hearing the witnesses and by not having submissions of counsel upon the credibility of the witnesses and the inferences open."[11]

20 In these circumstances, the Full Court concluded, it was "not in the interests of justice" to permit the appellant to argue the point conceded below.

21 Likewise, in Martin v Hendersons Industries Pty Ltd,[12] a case relied on by TAC, this Court refused the appellant permission to argue a point not raised at trial, as this would have required the Court -

"to speculate on what differing lines of cross-examination might have been pursued and on the conclusions which the jury might have drawn ..."[13]

22 The second proposition exemplified by Whisprun is that in every such case the question is whether it is - or is not - in the interests of justice to allow the new point to be raised on appeal. As the above passage from Whisprun makes clear, that remains a live question even when there is no possibility that the trial might have been conducted differently. Their Honours refer in particular to the injustice which would be likely to follow if the allowing of the new point on the appeal might lead to there having to be a further trial of the action.

23 Again, there is ample authority for the proposition that the interests of justice will be determinative. As Mason J said in O'Brien v Komesaroff:[14]

"In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided."

24 In Masters v McCubbery,[15] the respondent sought the permission of this Court to withdraw a concession made at trial in respect of a contentious issue. In the event, the Court did not need to decide the matter, but Winneke P said:

"If it were necessary to do so I would be inclined to give the leave which is sought, in view of the fact that it raises solely a question of law the resolution of which, subject to adjusting the rights of the parties by an appropriate award of costs, would not only be in the interests of justice to determine but would not cause any relevant prejudice to the respondent."[16]

25 A line of authority has developed in the Federal Court, based in part on the decision of the High Court in University of Wollongong v Metwally [No 2],[17] to the effect that permission to withdraw on appeal a concession made at trial will only be granted "in the most exceptional circumstances."[18] No such test has been adopted in this Court, nor in the New South Wales Court of Appeal.[19] For example, in Martin's case,[20] this Court set out the "exceptional circumstances" passage from Metwally[21] and then proceeded to apply what was said by the High Court in the later decisions of Water Board v Moustakas[22] and Whisprun.[23] The passage from Moustakas which was cited in Martin included the following:

"More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied."[24]

26 In our opinion, it is consistent both with authority [25] and with principle that the question of whether a concession made below should be permitted to be withdrawn on appeal should be approached - as with any new point raised on appeal - by reference to the two propositions from Whisprun, as set out above. That is -

1. A party will not be permitted to withdraw on appeal a concession made at trial unless the appeal court is satisfied that the course of the trial would not have been affected in any way had the concession not been made.

2. Where the appeal court is so satisfied, permission to withdraw the concession will be granted if, but only if, the court considers that it would be in the interests of justice for the point to be reopened.

27 In our view, it is "not only competent but expedient in the interests of justice"[26] in the present case to permit Ms Lafranchi to withdraw the concession. As to the conduct of the trial, senior counsel for TAC readily conceded that nothing would have been done differently had the concession not been made. He submitted, nevertheless, that it would be "inimical to the administration of justice" (using the phrase from Whisprun) for the appellant to be permitted to run a quite different case on appeal.

28 We are unpersuaded by this submission. Because of the concession, the trial was conducted on the basis that (subject to the absence of explanation) the RIL principle applied. If, as the appellant wishes to argue, that basis was factually wrong, then it would clearly be in the interests of justice for this Court to be able to deal with the case on the correct basis. Not to do so would be - potentially at least - to perpetuate injustice, and this Court will be astute to avoid such an outcome, for obvious reasons. There is no prejudice to TAC (beyond the obvious disadvantage of having the point reopened). The parties to the appeal were agreed that, however this issue might be resolved, there would be no need for a retrial, this Court being in as good a position as the trial Judge to decide the questions of negligence and causation.

2. Did the principle of RIL apply?

29 Senior counsel for TAC submitted that it had been established in Australia for at least the past 50 years that an inference of negligence arises "whenever a car ends up where it ought not to be". He cited the judgment of Dixon J in Davis v Bunn[27] (a case in which a car had suddenly swerved on to the wrong side of the road), in which his Honour said:

"It is not invariably true that the occurrence of an accident occasioned by a vehicle in the highway cannot in itself supply sufficient evidence of negligence.... Unless and until the cause of the vehicle's change of direction was explained, I think that mere proof that it suddenly swerved from one side of the road to the other and hit the plaintiff's stationary car would constitute sufficient evidence of negligence. It is true that such a thing is consistent with more than one cause not implying negligence. For example the driver might have fainted, or the steering gear may have failed through no fault of the defendant. But such unavoidable events are sufficiently unusual to raise a probability that the erratic course of the vehicle is to be accounted for by some failure in due care, whether in its management on the roadway or in the maintenance of it mechanical efficiency. In the absence of all explanation, the probability would be high enough to justify an inference in the plaintiff's favour.[28]"

30 Despite the use of the double negative at the beginning of this passage, it is clear that Dixon J thought that the RIL principle could apply to this type of car accident. McTiernan J agreed on this point.[29] Starke J, however, considered that -

"the mere occurrence of an accident on a highway raises no presumption of negligence. It may happen from a variety of causes, some of which may be imputable to the fault of the person sought to be made liable , whilst others may be due to causes for which he is not responsible."[30]

31 Counsel for TAC referred to a number of other cases as supporting the proposition that the mere fact that a car has left the road raises an inference of negligence. In Mummery v Irvings,[31] where the plaintiff was hit by a piece of wood flying from a circular saw, the High Court noted - obiter - that the RIL principle had been applied in "some types of highway cases, for example where a vehicle had mounted a footpath and injured a pedestrian."[32] In Piening v Wanless,[33] a case in which a car swerved off the road as a result of steering failure, Windeyer J said that -

"If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent."

32 In Government Insurance Office of NSW v Fredrichberg,[34] the High Court upheld a trial judge's direction to a jury to the effect that the jury could infer negligence if they accepted that the defendant's car had swerved suddenly onto the wrong side of the road. More recently, in Kalavrouziotis v Howell & Anor,[35] Wheeler J said-

"...[B]oth principle and authority support the conclusion that the mere fact of losing control of a vehicle can, without more, establish negligence on the part of a driver. It is a matter of common experience, in the absence of sudden emergency (of which, again, there was no evidence here,) a driver exercising due care and attention will not lose control of a vehicle. The proposition seems to me to have been accepted for some time in the authorities."[36]

33 Contrary to the submission advanced by TAC, these decisions - collectively described by senior counsel as "50 years of learning" - do not establish that the RIL principle applies whenever a vehicle crosses to the wrong side of the road, or veers off the road, or in some other way "ends up where it ought not to be". This proposition was advanced as if it were a principle of law, such that any judge dealing with a motor vehicle accident of this kind would be constrained by authority to conclude that the principle applied.

34 First, the cases decide no such thing. All they show is that, in a case where a vehicle ends up off the road, or on the wrong side of the road, the RIL principle can apply. Dixon, J in Davis v Bunn was certainly not suggesting that the RIL principle was universally applicable in cases such as this. Quite the opposite. His Honour was merely concerned to rebut the notion that an inference of negligence could never be drawn from the mere fact of the occurrence of the accident. As Wheeler, J said in Kalavrouziotis,[37] the mere fact of losing control of a vehicle can establish negligence on the driver's part - but (it follows) it will not necessarily do so.

35 Secondly, to suggest that these cases constitute a binding line of authority is wholly to mischaracterise the part which the RIL principle plays in a negligence action. Where it applies, the RIL principle assists in the proof of matters of fact. As Dixon CJ said in Franklin v Victorian Railways Commissioner[38] -

"The three Latin words [res ipsa loquitur] merely describe a well known form of reasoning in matters of proof. Convenient as it is sometimes to use them to direct the mind along that channel of reasoning they must not be allowed to obscure the fact that it is a form of reasoning about proof leading to an affirmative conclusion of fact and that whenever the question is whether the proofs adduced suffice to establish an issue affirmatively, all the circumstances must be taken into account and the evidence considered as a whole".[39]

36 Moreover, the threshold question - whether the principle is applicable to the case at hand - itself turns on findings of fact, in particular as to -

"the requirement that the accident must be such as in the ordinary course of things does not happen if those who have the management use proper care."[40]

37 As the High Court recently made clear in Schellenberg,[41] the RIL principle is concerned with causation and breach of duty, both of which are questions of fact.[42] As Gleeson CJ and McHugh J said:

"Res ipsa loquitur is concerned with negligence arising from an unknown or unspecified cause. It is concerned with an external event whose cause is under the control of the defendant. It is a principle that is as much, perhaps more, concerned with proof that the defendant was causally responsible for the occurrence as it is with proof of a breach of duty."[43]

"[W]hile 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."[44]

39 As senior counsel for Ms Lafranchi pointed out in reply, decisions about the applicability of the RIL principle to particular motor vehicle accidents are no more to be regarded as binding precedents than are decisions - even of the High Court - on what constitutes a breach of a duty of care. As Gleeson CJ and Kirby J said recently in Vairy v Wyong Shire Council:[45]

"The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place. The decision of this Court in Nagle v Rottnest Island Authority[46] is not authority for the proposition that the coastline of Australia should be ringed with signs warning of the danger of invisible rocks. That was a decision about the legal principles relevant to the existence of a duty of care. The majority also held that the primary judge had been correct to find a breach of duty. That was a conclusion of fact, turning upon the circumstances of the particular case. The decision in Nagle did not establish that reasonableness requires a warning sign in all places where there are submerged rocks, any more than the decision in Romeo v Conservation Commission (NT)[47] established that reasonableness never requires a warning sign at the top of a cliff."

40 It follows, in our view, that in every case where a plaintiff invokes the RIL principle the judge (or jury) must decide, on the evidence led in the case, whether the principle is applicable. That is, of course, precisely the exercise in which the High Court itself engaged in Schellenberg, ultimately concluding that, on the evidence in that case, the RIL principle was not applicable.

41 In our opinion, on the evidence led by the parties in the present case, the RIL principle was clearly inapplicable. Mention has already been made of the expert called by TAC, Dr Morris Odell. Since 1995, Dr Odell has been employed as a senior specialist forensic physician in the clinical division of the Victorian Institute of Forensic Medicine. As he states in his report, he is an honorary senior lecturer in forensic medicine at Monash University, and lectures to medicine and law students "on various aspects of the discipline, including traffic medicine." He is the co-ordinator for the subject of Traffic Medicine in the post-graduate program in forensic medicine at Monash University. He is, moreover, medical adviser to VicRoads regarding medical fitness to drive, and he is an honorary clinical assistant in the neurology department at St Vincent's Hospital, where he conducts a driving assessment clinic.

42 In his report dated 4 April 2005, Dr Odell expressed his conclusion about this accident in the following terms:

"In the absence of further information it is not possible to know why this collision occurred. Dr Gilligan has reviewed the file and suspects on the balance of probabilities that Ms Lafranchi blacked out or had some impairment of consciousness which led to the crash. I am in general agreement with this proposition but would extend it to include a lapse of concentration or perhaps even briefly falling asleep.

This crash involved a single vehicle which crashed in to a roadside pole, with no prior evidence of evasive action or braking. Crashes of this type are characteristically caused by an impairment of consciousness, concentration or perception by the driver. There are very many possible causes of such a situation, ranging from simple distraction to catastrophic loss of consciousness. In this case there was no obvious cause that could be identified from perusal of the medical notes. Dr Gilligan suspects it will never be known exactly what occurred. In the absence of any subsequent medical investigation or diagnosis that would elucidate the situation, I can only agree." (Emphasis added)

43 It was pointed out by senior counsel for TAC that this evidence had not been directed at the threshold question of whether the RIL principle applied, but was instead intended to rebut the contention advanced in Ms Lafranchi's defence, that she had suffered a blackout and had therefore not been negligent. Nevertheless, as senior counsel properly conceded, we are entitled - indeed, bound - to have regard to this evidence on the appeal in deciding whether the RIL principle did in fact apply.

44 It can be seen immediately that Dr Odell expressed a general opinion - based on his expertise in "traffic medicine" - about characteristic causes of "crashes of this type" (involving a single vehicle running into a roadside pole with no prior evidence of evasive action or braking). Such crashes, in Dr Odell's opinion, are characteristically caused by -

"an impairment of consciousness, concentration or perception by the driver."

45 Dr Odell here identifies, first, a cause (impairment of consciousness) which typically involves no fault on the driver's part and, secondly, a cause (impairment of concentration) which typically does involve fault on the part of the driver. The same is true of the two examples he gives - "simple distraction", which would usually involve driver fault, and "catastrophic loss of consciousness", which would not. Dr Odell says nothing to suggest that "crashes of this type" are more often the result of causes associated with driver fault than of no-fault causes. On the contrary, he said in relation to the case at hand that there was not enough information -

"to be able to pick one of the alternatives as any more likely than the other. All those things that we've talked about are possible but I can't say that anything is more possible or less possible than anything else."[48]

46 In his report, Dr Odell expresses himself to be in "general agreement" with the proposition advanced by Dr Gilligan, the expert called by Ms Lafranchi, that -

"on the balance of probabilities... Ms Lafranchi blacked out or had some impairment of consciousness which led to the crash."

Of course, Dr Odell qualifies his agreement by extending the proposition to include -

"a lapse of concentration or perhaps even briefly falling asleep".

47 Once again, however, Dr Odell says nothing to suggest that the latter causes - which would almost inevitably suggest driver fault - were more likely (based on frequency of occurrence) than a blackout or impairment of consciousness - which would not. In the end, Dr Odell is constrained to say that there are "very many possible causes of such a situation," and to agree with Dr Gilligan's view that -

"it will never be known exactly what occurred".

48 On that evidence, we could not possibly be satisfied that the accident in question -

"was of such a kind that it does not ordinarily occur without negligence".[49]

49 All that the evidence showed was that such accidents might or might not involve negligence. That being so, the second of the three necessary conditions for the application of the RIL principle is not satisfied, and the principle therefore cannot apply to the present case.

50 Before leaving this issue, we should make two further points. First, both the existence of TAC as a statutory authority administering the Act, and the availability of expert evidence such as Dr Odell's, exemplify the vast change which took place in the latter part of the 20th century in community and governmental awareness of, and concern about, road accidents which cause injury or death. Where evidence such as Dr Odell's is led, the judge is no longer constrained to rely on his/her own experience in order to decide whether it can be said of a particular type of car accident that it is "of a kind that ordinarily does not occur without negligence". It is well-established that expert evidence is admissible on the question whether the RIL principle applies.[50] Counsel may wish to consider leading such evidence in appropriate cases.

51 Secondly, the conclusion we have arrived at is a conclusion arrived at on the evidence before the Court in this case, as applied to the facts of the case. As we have been at pains to stress, this is a finding of fact, a decision that the circumstances of this accident do not, by themselves, justify the drawing of an inference that the accident was caused by this driver's negligence. It creates no precedent for future cases. They will be decided, as they must be, on the evidence led by the parties.

52 Counsel for TAC submitted that the court should consider the broader implications of a finding that the RIL principle did not apply in this case. He suggested that the effect of such a decision would be to enable any driver whose car veered off the road, with no evidence of poor traffic conditions or mechanical malfunction, to avoid liability simply by suggesting that he/she might have had a blackout. What we have said about the factual, and case-specific, nature of our conclusion is sufficient to refute that argument.

53 Our conclusion that the RIL principle was inapplicable is sufficient to dispose of the appeal. As senior counsel for TAC effectively conceded, without the assistance of the inference of negligence his client could not succeed on the balance of probabilities. There should, accordingly, be judgment for Ms Lafranchi in the action.

54 In deference to the arguments advanced, however, we proceed to deal with the remaining two issues on the assumption that (contrary to our view) the RIL principle did apply.

3. Was the onus reversed?

55 The application of the RIL principle allows the court to infer negligence in the absence of other evidence about the cause of the accident, but it does not shift the burden of proof to the defendant to prove that he or she was not negligent. Even if no evidence is called by the defendant,[51] the inference of negligence may not be sufficiently strong to allow a finding on the balance of probabilities that the defendant was negligent.

56 As Windeyer J said in Anchor Product v Hedges -

"[F]or Australian courts the phrase 'res ipsa loquitur' denotes a fact from which, if it be unexplained, it is permissible to infer negligence: but ... the onus in the primary sense - that is the burden of proving the case against the defendant - remains with the plaintiff. 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."[52]

57 More recently, in Schellenberg, Gaudron J said:

"Although res ipsa loquitur does not alter the burden of proof, it may operate to impose an evidentiary burden on a defendant. "[53]

"Because res ipsa loquitur simply describes a reasoning process by which an inference is drawn, it has no impact on the burden of proof. It is always for the plaintiff to prove negligence on the balance of probabilities, and never for the defendant to prove otherwise. And because an inference of negligence may, but need not, be drawn, a defendant may succeed without calling evidence. Thus, for example, if it emerges that there is a possible explanation for the event in question and that explanation involves no negligence, the trier of fact may decline to infer negligence, without calling upon the defendant."[54]

(Although Gaudron J dissented in the result in Schellenberg, other members of the Court agreed with her on this point.[55])

58 In the present case, the trial Judge correctly stated that the plaintiff had the burden of proving negligence despite the application of the RIL principle. He went on to say:

"Although the burden of proof does not shift from the plaintiff it becomes incumbent on the defendant to rebut the evidence which would otherwise lead to a conclusion of negligence".[56]

59 The Judge also referred[57] to the fact that the only issue between the parties was whether or not the defendant could succeed in her "defence of inevitable accident."

60 Strictly speaking, the reference to a defence of inevitable accident was inaccurate. It was not for the defendant to prove that the accident was inevitable - and hence the product of non-negligent causes. Nor, with respect, was it correct to say that it was "incumbent" on the defendant to rebut the inference arising from the fact of the accident. In so saying, his Honour implied that, because the RIL principle applied, the burden of proof was on Ms Lafranchi to prove that she had had a blackout. As we have seen, even if the defendant gives no evidence in such a case, the court is not required to find in favour of the plaintiff. Much depends on the strength of the inference to which the facts of the accident give rise.

4. If the RIL principle applied, did the evidence as a whole justify a finding on the balance of probabilities that Ms Lafranchi was negligent?

61 As noted at the outset, the evidence in this case does not indicate why Ms Lafranchi drove off the road. Ms Lafranchi testified that she was not tired and that she had had a good night's sleep before the accident. She had left home at around 10:00 am and had stopped to have lunch and do some shopping during the journey. She had then driven for a short distance and stopped again to buy fish. She had no idea why she had driven off the road and had been very anxious about this after the accident. She had not experienced a blackout before or since the accident.

62 Ms Thompson's evidence was that weather conditions were good and that shortly before the accident her daughter was sitting in a normal driving position, with her hands on the wheel and looking straight ahead. Ms Lafranchi did not respond to her mother's warning. She did not answer her mother, turn or respond in any way whatsoever. Ms Thompson agreed with counsel for TAC that the warning occurred a "split second" before the accident.

63 Ms Thompson's evidence that her daughter did not turn or react in any way whatsoever when she said " Jude, Jude" provides some support for the hypothesis that the accident was caused by Ms Lafranchi blacking out. Her evidence that Ms Lafranchi was "looking straight ahead" suggests she had not fallen asleep at the wheel. On the other hand, Ms Lafranchi's lack of reaction could, perhaps, have been due to the lack of time she had to avoid colliding with the pole.

64 The only other relevant evidence was that of the expert witnesses, to which we have already referred. Dr Odell said that, in his experience of assessing people's fitness to drive, it was unusual for "claimed blackouts" to be substantiated. He also said that it was "very unusual" for a person to have an isolated blackout for no reason, especially if - as in the case of Ms Lafranchi - the person had a completely normal medical history.[58] In his view, Ms Thompson's observation of her daughter's behaviour did not make it possible to infer a particular cause of the crash.

65 In cross-examination, Dr Odell agreed that a person could have a blackout spontaneously, with no prior history. He also said that there were other possible causes, including that Ms Lafranchi had fallen asleep. But he agreed that the fact that she had slept normally the night before, and had stopped for an hour and a half for lunch, made that less likely.[59] According to Dr Gilligan, Ms Lafranchi's behaviour when she was warned by her mother suggested that "there was some biological effect which resulted in her not being able to respond to the mother".[60] He said there was nothing to suggest the accident was caused by Ms Lafranchi falling asleep. He said that it was likely that she had suffered from loss of consciousness for a period of time.

66 Dr Gilligan disagreed with Dr Odell's evidence that a person who had not previously experienced a blackout was unlikely to do so. On the contrary, he said, it was typically a one-off event. "It may happen more than once, but usually it only happens once in a life-time."[61]

67 Under cross-examination, Dr Gilligan said that blackouts were sometimes, but not commonly, triggered by a stressful situation, but that transient global amnesia usually happened without any precursor. Explaining the basis for his conclusion that Ms Lafranchi had lost consciousness, he referred to her lack of response to her mother's expression of anxiety and said that, normally, a person would respond within a second to such a warning. This absence of response tended to negate the likelihood that she had simply lost concentration for a moment.

68 On the issue of whether a person can have a once-in-a-lifetime blackout, we prefer the evidence of Dr Gilligan, who is a specialist neurologist, to that of Dr Odell, who is not. No evidence supports the hypothesis that Ms Lafranchi fell asleep. Ms Thompson's observation of Ms Lafranchi's behaviour shortly before the accident, coupled with Dr Gilligan's evidence that a blackout can occur without any prior warning, does provide an evidentiary basis for the hypothesis that she had a temporary interruption of consciousness. We do not accept TAC's submission that her concession in cross-examination - that this all happened "in a split second" - was sufficient by itself to discredit her clear evidence about her daughter's lack of response.

69 If (contrary to our view) the RIL principle applied, the inference of negligence was, at best, a weak one. On the evidence, the circumstances of the accident do not speak "clearly [or] convincingly" of negligence.[62] That being so, and having regard to the evidence of Ms Lafranchi's non-response, we would not be satisfied on the balance of probabilities that the accident was caused by her negligence.

70 I have had the advantage of reading in draft the joint reasons for judgment of Maxwell P and Neave JA and I gratefully adopt their summary of the evidence. I find it unnecessary to decide whether the appellant should be permitted to withdraw the concession, made at trial and at the conclusion of the evidence, that is, the concession on the facts that the occurrence was of such a kind that did not ordinarily occur without negligence. Nor do I find it necessary to decide whether the opinion of Dr Odell in his report dated 4 April 2005 concerning the characteristic causes of "crashes of this type" was such that this concession was wrongly made.

71 The evidence of Dr Gilligan, while somewhat scanty, supports a credible explanation of the accident that is inconsistent with negligence, namely a blackout.

That explanation, although not in my view rising to the level of probability, is sufficient to displace what would otherwise be a weak inference of negligence arising from the occurrence itself. I therefore agree with their Honours that the evidence considered as a whole does not on the balance of probabilities establish negligence by the appellant. Accordingly, I agree that the appeal should be allowed and judgment entered for the appellant (defendant).

I certify that this and the preceding 2422 pages are a true copy of the reasons for judgment of Maxwell P, Neave JA and Mandie AJA respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 12 April 2006.

DATED the day of 2006.

[1] The Latin phrase means "the matter (or thing) speaks for itself".

[2] [2000] HCA 18; (2000) 200 CLR 121.

[3] At 134 [25], citing Piening v Wanless [1968] HCA 7; (1968) 117 CLR 498 and Anchor Products Limited v Hedges [1966] HCA 70; (1966) 115 CLR 493.

[4] Reasons for judgment at [18].

[5] Reasons for judgment [19]-[20].

[6] ibid at [21].

[7] [2003] HCA 48; (2003) 77 ALJR 1598.

[8] At 1608 [51].

[9] The joint judgment referred to University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 496-497; cf R v Birks (1990) 19 NSWLR 677 at 683-685.

[10] (1991) V Conv R 54-416.

[11] At 64,965.

[12] [2004] VSCA 19.

[13] At [67] per Charles JA.

[14] [1982] HCA 33; (1982) 150 CLR 310 at 319.

[15] [1995] VICSC 209; [1996] 1 VR 635.

[16] At 649, referring to B P Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 at 286-7; see also at 658 per Callaway JA, citing Adams v Chas. S. Watson Pty Ltd [1938] HCA 37; (1938) 60 CLR 545 at 547-8.

[17] (1985) 59 ALJR 481 at 483.

[18] See Commonwealth v Martin (1985) 5 FCR 351 at 355; Dovuro Pty Ltd v Wilkins [2000] FCA 1902; (2000) 105 FCR 476 at 509 [119-120] per Finkelstein J cf. at 487-8 [38] per Branson J and at 527 [181] per Gyles J.

[19] See, for example, Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645, where Mason P pointed out that Metwally was not an appeal by way of rehearing.

[20] [2004] VSCA 19.

[21] ibid at [24].

[22] [1988] HCA 12; (1988) 180 CLR 491 at 496-7.

[23] Supra.

[24] Fn 22 above.

[25] See also Australia Pacific Airports (Melbourne) Pty Ltd v Nuance Group (Australia) Pty Ltd [2005] VSCA 133 at [11].

[26] Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, cited in Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; see also Bremner v Sinclair (No.2) [1999] NSWCA 407 at [32]- [34].

[27] [1936] HCA 44; (1936) 56 CLR 246.

[28] ibid at 260 (emphasis added).

[29] ibid at 276.

[30] ibid at 255.

[31] [1956] HCA 45; (1956) 96 CLR 99.

[32] At 115 per Dixon CJ, Webb, Fullagar, Taylor JJ.

[33] [1968] HCA 7; (1968) 117 CLR 498 at 511.

[34] [1968] HCA 54; (1968) 118 CLR 403.

[35] (1998) 27 MVR 367.

[36] ibid at 368 - 369. Her Honour here referred to Mummery v Irvings [1956] HCA 45; (1956) 96 CLR 99. See also Halliwell v Venables [1930] Law Times 215**.**

[37] Supra [369].

[38] [1959] HCA 48; (1959) 101 CLR 197.

[39] At 201 (emphasis added).

[40] Mummery (supra) at 116.

[41] Supra.

[42] See March v Stramare [1991] HCA 12; (1991) 171 CLR 506 at 515 per Mason CJ; Vairy v Wyong City Council [2005] HCA 62; (2005) 80 ALJR 1 at 5 per Gleeson CJ and Kirby J.

[43] At 136 [31] (emphasis added).

[44] At 134 [24].

[45] At 5 [3].

[46] [1993] HCA 76; (1993) 177 CLR 423.

[47] (1998) 192 CLR 431.

[48] T 31.

[49] cf. Schellenberg at 134 [25].

[50] Schellenberg (supra) at 139-40 [42].

[51] ibid at 149.

[52] [1966] HCA 70; (1966) 115 CLR 493 at 500.

[53] Schellenberg (supra) at 148.

[54] ibid.

[55] See also Government Insurance Office (NSW) v Best (1993) Aust Torts Reports 81-210.

[56] At [7].

[57] At [6].

[58] T 25-26.

[59] T 30.

[60] T 62.

[61] T 65.

[62] cf. Anchor Products (supra) at 500.