Allesch v Maunz [2000] HCA 40; (2000) 173 ALR 648

Bootle v Kettlewell (1993) 18 MVR 177

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336

Houston v Queensland Railways (1994) 20 MVR 198

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kalavrouziotis v Howel (1998) 27 MVR 367

Maitland City Council v Myers (1988) 8 MVR 113

Olds v Government Insurance Office (NSW) (1990) 11 MVR 233

Singh v Crafter, unreported; FCt SCt of WA; Library No 8434; 15 August 1990

Spence v Demasi (1988) 48 SASR 536

The Nominal Defendant v Haslbauer [1967] HCA 14; (1967) 117 CLR 448

1 SCOTT J: I have had the opportunity of reading the draft to be published by Steytler J. I agree with those reasons and there is nothing I can usefully add.

2 STEYTLER J: The appellant was unsuccessful in a District Court trial, involving liability only, arising out of a motor vehicle accident. She was a passenger in the front seat of a Mitsubishi Magna van driven by her husband on 14 July 1994. The van left the bitumen surface of the Great Eastern Highway while travelling between Southern Cross and Coolgardie, ran into gravel, rolled over and then caught alight. The appellant was injured. She sued her husband, the respondent, for damages, alleging that the accident was caused by his negligence. The trial Judge dismissed her claim and she now appeals to this Court.

3 In her statement of claim the appellant pleaded that the respondent had been negligent in that he:

"(a) failed to drive ... [his] vehicle with due care and attention;

(b) failed to steer or control ... [his] vehicle so as to avoid the accident;

(c) failed to apply the brakes in time or at all so as to avoid the accident;

(d) drove ... [his] vehicle when he knew or ought to have known that he was not fit to do so owing to his medical condition;

(e) drove ... [his] vehicle when he knew or ought to have known that he was not fit to do so by reason of him taking prescribed medication likely to cause dizziness and/or drowsiness;

(f) drove ... [his] vehicle at a speed which was excessive in the circumstances."

4 The appellant's evidence was to the effect that she, her husband and their two children had made a trip to Perth from Kalgoorlie. They planned to return on 13 July 1994. However they did not do so because, she said, her husband had "watery eyes", a "running nose" and felt "pain in the body". He had seen the doctor in respect of his ailments on the previous day. He told the appellant that he was "really tired" and that he could not drive. They consequently put off their departure for one day.

They left for Kalgoorlie early on 14 July after each had had about six hours sleep. She said that the respondent took some medicine before departing. On their way to Kalgoorlie they drove for about four hours before stopping at Merredin for lunch. They then drove a further 75 kilometres to Southern Cross where they stopped, once again, for about 5 or 10 minutes. She said that the next stretch of road, from Southern Cross to Coolgardie, was about 180 kilometres and that it was a very boring part of the journey. She consequently put back her seat a little, closed her eyes and listened to some music which was playing in the car. The car's heating was on and the windows were up because it was a cold day. She said that after they had travelled approximately 60 kilometres, the car suddenly ran off the road and rolled over before catching alight. She heard no sound before the accident and did not know of any reason why the car had left the road.

5 Evidence was also given at the trial by a police constable, Karl Mustchin, who had been stationed at Southern Cross and had attended the scene of the accident not long after it occurred. By then, he said, the van was "burnt out". He said that the bitumen road had one lane in each direction and a gravel verge. He said that there were marks in the gravel of a kind which "a vehicle travelling at speed would make .. if it was turning quickly". He said that it was a skid mark but "not a braking skid mark". He made a record of what was said to him concerning the circumstances of the accident by the respondent. The record reads as follows:

"The driver states that he was travelling east on the Great Eastern Highway at approx 100 - 105 kmh when all of a sudden the steering wheel began to wobble as he applied the brake the car swerved off the left side of the road into the table drain causing it to roll over [sic]. As they were climbing out of the vehicle it began to burn."

6 In the course of his evidence-in-chief, Constable Mustchin was also asked whether he had inspected the tyres of the vehicle. His response was that, due to the vehicle being burnt out, he could not conduct any sort of inspection and so, he said, he was "unable to verify what ... [the respondent] told me about the tyre blowing out". This was the first reference, in his evidence, to any such statement by the respondent. It was pursued in the course of cross-examination by counsel for the respondent and the constable confirmed, without objection, that the respondent had told him that the front tyre had "blown" as he was driving along the road.

7 The appellant also led evidence at the trial from a pharmacologist, Mr James Langham, who was asked to describe the effects of the medication which the respondent had taken, known as Promethazine. He said that this medication could cause sedation and that its sedative effects last for up to 12 hours. However, he said, with a new user of the drug it was difficult to know just how long any effect might last. He said that there was no real way of knowing whether a particular person would be more or less sensitive to the drug than the average. The accident had occurred some 15 hours after the respondent had taken the medication. He suggested that the combined impact or effects of the medication, the respondent's medical condition, possible loss of driving related vigilance in what he referred to as "the post-lunch dip" and the fact that the respondent had had less than 8 hours sleep might have combined to affect the respondent's performance as a driver.

8 The respondent called only two witnesses at the trial. The first was an insurance investigator, Mr Edward Macey and the second was a pharmacologist, Professor David Joyce. The respondent did not himself give evidence.

9 During Mr Macey's evidence, the respondent tendered, and the Judge admitted over the objections of counsel for the appellant, a statutory declaration which had been made by the respondent. In this declaration the respondent said that he had "suddenly heard a bang and the vehicle veered off the road to my left hand side and rolled over". When admitting the document into evidence, the trial Judge said that he did so, not for the truth of its contents, but only "on the question of the consistency or otherwise with what the man said to the policeman soon after ... ".

10 In his evidence, Professor Joyce said that if the accident occurred 15 hours after a dose of Promethazine, it would be very difficult to argue that a state of persisting impairment sufficient materially to increase the risk of an accident under normal driving conditions existed. While accepting that the ailments suffered by the respondent at the time were such as might have had some influence on driving safety, he said that the medication would not have increased the risks of accident.

11 After referring to some of this evidence in the course of his ex tempore reasons, the trial Judge said that there was "no direct or other evidence of the event" and that "the accounts given to the police and to the assessor are not evidence of the truth of what is contained in them". He added:

"Negligence is said to arise and to be inferred from these primary facts and the lack of positive evidence of any tyre blow-out. I am also asked to infer negligence against the defendant because of his failure to give evidence. I should say though that here he was, as I have already said, the plaintiff's husband and neither side called him. To ask the defendant to give evidence against his wife is always difficult.

The alternative is to ask him in the present case to contradict what he had told the police and the assessor. The plaintiff is here suggesting that the defendant should have been called to disprove his wife's case, having given a prior contradictory account to these other people. It is true that a positive plea is made by the defendant but the onus remains on the plaintiff. It would have been simple for the plaintiff to have called her husband, as was indeed foreshadowed by counsel in opening.

Expert evidence was called by both parties as to the matters said to arise by way of inference from the primary facts relating to the plaintiff's sinusitis, medications, driving conditions, sleep and lunch and the combination of all those various matters including the so-called post-lunch dip. Evidence on those matters was called by both parties but the evidence both of Mr Langham and Prof Joyce is necessarily, no doubt, at a level of generality, dealing with statistical chances and the like.

Neither of them had spoken to him and the explanation he gave the police and the assessor is not one which is consistent with those inferences. It probably in fact did not need expert evidence to establish that these various factors may affect concentration and alertness. I accept, both on the basis of the expert evidence and on the basis of general experience, that they are all factors which may affect concentration and alertness but in the context of this case where neither of the experts has spoken to the defendant and the defendant has not given evidence, it is speculative and unsupported by evidence to suggest that those matters, singly or together, have led to the accident.

The plaintiff has not shown to the balance of probabilities that the defendant was negligent on the one hand or, secondly, that that negligence was what caused the motor vehicle accident. It is true that the defendant has not proven its positive allegation of a tyre blow-out but what the plaintiff's counsel calls a circumstantial case based on inferences does not satisfy me on the balance of probabilities, especially given the account given by the defendant after the event.

I am not satisfied either on a common experience basis or by the expert evidence that the defendant drove in circumstances which, in his particular case, were negligent or amounted to negligence or, alternatively, that that negligence caused the motor vehicle accident, and on that basis the claim is dismissed."

12 There are some 14 grounds of appeal. However it is necessary to say of those grounds only that they encompass contentions to the effect that the trial Judge erred in failing to conclude that the evidence advanced on behalf of the appellant was sufficient to justify a finding of negligence by the respondent and that his Honour erred in placing reliance upon the accounts given by the respondent after the event when there was no admissible evidence that there had been a burst tyre.

13 It seems to me, with due respect, that his Honour fell into error in both respects.

14 As to the second of them, his Honour specifically said that the accounts given to the police and to the assessor by the respondent were not evidence of the truth of what is contained in them, and it was common ground on the appeal that this evidence had not been tendered for the truth of its contents and could not be relied upon for that purpose. However, as will be apparent from the extract quoted, he went on to say that the plaintiff's case did not satisfy him on the balance of probabilities "especially given the account given by the defendant after the event". It is, with respect, difficult to understand that reference otherwise than as amounting to reliance upon the truth of what the respondent had said to the police and the assessor.

15 As to the first of the two propositions, it seems to me that the evidence was sufficient to establish negligence.

16 It is established that the mere fact of losing control of a vehicle can, without more, establish negligence on the part of a driver.

17 In Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246, a vehicle travelling along a road suddenly swerved to the right, hitting a parked car on the other side of the road as well as a man, the plaintiff, who had been standing nearby. The plaintiff imputed negligence to the defendant in two respects, one of which was the failure to take reasonable care that his vehicle was in a safe condition. Dixon J said of this head of negligence at 260:

"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 (Ellor v Selfridge & Co Ltd (1930) 46 TLR 236; Halliwell v Venables (1930) 143 LT 215; 99 LJ KB 353; Mercovich v Mullaney [1934] VicLawRp 57; (1934) VLR 285; but cf Galbraith v Busch (1935) 267 NY 230). In the present case, unless and until the cause of the vehicle's change of direction was explained, I think 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 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 its mechanical efficiency. In the absence of all explanation, the probability would be high enough to justify an inference in the plaintiff's favour. The legal burden of proof would not be thrown over to the defendant's side. No more than a presumption of fact would arise and its strength would be a matter for the jury to estimate, in whose province it would be to draw or refuse to draw the inference. But if facts appear which reasonably explain the accident in a manner involving no negligence for which the defendant is responsible, the foundation for the inference is excluded."

18 In Scott v London and St Katherine Docks Co [1865] EngR 220; (1865) 3 H & C 596; 159 ER 665, six bags of sugar fell on a customs officer whilst he was passing in front of a warehouse in the discharge of his duty. Their Lordships said, in this respect:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

19 In Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 Lord Normand said (with the agreement of Lord Morton) (at 399):

"The fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient foundation for a finding of liability against him. It can rarely happen when a road accident occurs that there is no other evidence, and, if the cause of the accident is proved, the maxim res ipsa loquitur is of little moment."

"I do not think that the appellant was entitled to judgment in the action because of any special virtue in the maxim res ipsa loquitur. I find nothing more in that maxim than a rule of evidence, of which the essence is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence."

21 These, and other, cases were referred to by the High Court in Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99. There Dixon CJ, and Webb, Fullagar and Taylor JJ said (at 121 - 122):

"In a typical case of res ipsa loquitur the plaintiff, frequently, may have two alternative courses open to him upon the trial. He may be aware of the defendant's explanation of the accident by reason, for instance, of a coronial inquiry or as a result of subsequent investigation, and yet he may simply prove the fact of the occurrence leaving it to the defendant to prove the explanatory facts. In such circumstances those who contend that the principle operates to cast upon the defendant the onus of disproving negligence will maintain that the plaintiff will succeed unless the defendant satisfies the jury affirmatively that he was not negligent. On the other hand, those who take the view that no such onus is cast on the defendant, whilst admitting that, if the defendant does not choose to call credible evidence, the principle will continue to operate, will maintain

that once such evidence is given the plaintiff will fail unless the jury are satisfied that the defendant was negligent. In other words this contention involves the notion, as it has so often been put, that once acceptable evidence explaining the accident has been given the principle will cease to operate. But what is the position where the plaintiff, instead of relying on mere proof of the occurrence, himself adduces evidence of the cause of the accident? It is, of course, beyond doubt that the doctrine of res ipsa loquitur will have no place in the case. This, of course, is precisely the same situation when the explanatory matter is proved by the defendant. If his evidence is acceptable to the jury the question will be whether, upon that evidence, the jury is satisfied that he was negligent. To hold otherwise would mean that, in cases where the onus of proof is of importance, the result will be determined according to whether the explanatory matter is put before the jury by the plaintiff or the defendant. We cannot think the principle of res ipsa loquitur can produce such a capricious and anomalous result."

22 In this case the appellant did, of course, advance evidence explaining the accident. But this was to the effect that having heard no sound, she could discern no external cause of the accident. She therefore assumed that the accident was attributable to the various matters to which she and Mr Langham referred, being the combination of the driving conditions, the defendant's ailments, his weariness and, perhaps, the medication which he had taken. In the absence of any admissible explanation from the respondent, it seems to me that the circumstances of the accident were sufficiently unusual to raise a probability that the erratic course of the vehicle was to be accounted for by some failure in the respondent's management of the vehicle on the roadway due to one or a combination of those matters. They therefore established negligence on his part.

23 It follows that the appeal should be allowed. The decision of the trial Judge should be set aside and there should be substituted for it a decision that judgment be entered in favour of the appellant on the question of liability.

24 EINFELD AJ: I have read in draft the reasons for judgment of Steytler J. I concur in his Honour's reasoning and agree with his conclusion that the appeal should be upheld.