Van Muyen v The Nominal Defendant

[1] WILLIAMS JA: The appellant sustained injuries when the vehicle she was driving hit an embankment and rolled over whilst it was negotiating a curve to the right on the Rosewood-Laidley Road at about 8.10am on 16 December 1996. She sued the respondent asserting that the cause of the accident was the negligent driving of an unidentified motor vehicle. The appellant has no recollection of events subsequent to her commencing her journey from her home about five minutes before the accident. In consequence she could give no evidence implicating another vehicle as the cause of what happened.

[2] At the trial evidence was led from a number of witnesses placing another vehicle in the general vicinity, travelling in the same direction as the appellant, at about the time the incident occurred. The trial judge was asked to infer from the evidence that that vehicle overtook, whilst travelling at excessive speed, the appellant as she was negotiating the curve and thereby caused her vehicle to leave the bitumen carriageway and ultimately roll over.

[3] After a careful, detailed analysis of all the evidence the learned trial judge declined to draw that inference and in consequence the appellant's action was dismissed. The ultimate reasoning of the learned trial judge is encapsulated in the following remarks at the end of her reasons:

"I am therefore not satisfied that it is the more probable inference that should be drawn from all the evidence that the departure of the plaintiff's vehicle to the left of the road was caused by the overtaking of the unidentified motor vehicle travelling at excessive speed. Without such an inference, it is not possible for the plaintiff to satisfy the onus she bears of establishing that it was more probable than not that the accident was caused by the negligence of the driver of the unidentified vehicle. It follows that the plaintiff's proceeding must be dismissed."

[4] It was not in dispute that the appellant was an experienced driver who drove regularly over the stretch of roadway in question. She drove the road daily in order to get to her place of employment. On the day in question she was on holidays and driving to Brisbane for a variety of reasons. It was a fine clear day. Her evidence was that "half the time" she drove around that curve she would be travelling at 80 kilometres per hour.

[5] A kilometre or so back from the point where the accident occurred the appellant drove through the township of Grandchester which had a speed limit of 60 kilometres per hour. That changed to 80 kilometres per hour then 100 kilometres per hour. Photographs of the road (including an aerial one) were in evidence and allowed the court to appreciate the relevant road features. There was a considerable length of straight road (approximately 750 metres) after the speed limit changed to 100 kilometres per hour until the curve to the right where the accident happened; there was a gradual incline along that stretch of roadway.

[6] The appellant's evidence was that it was her habit to have the left hand wheels of her vehicle at least a tyre's width from the white line on the left hand edge of the bitumen. She always drove with her window down.

[7] A police officer who attended the scene made some measurements and drew a rough sketch in his police notebook. Marks on the roadway indicated that the appellant's vehicle went off to the left of the bitumen as indicated by a tyre track; that mark was in an arc which led back onto the bitumen. The vehicle then went sharply across the bitumen to its incorrect side of the roadway where it hit the embankment and then overturned. It came to rest facing the direction from which it had come with the rear driver's side just on the roadway. In other words the vehicle was virtually off the bitumen on the opposite side of the roadway to its original direction of travel.

[8] The evidence on which the appellant relied to place an unidentified vehicle at the accident scene came from Mr and Mrs Forrest, who were travelling in a vehicle in the same direction as the appellant some distance behind her, and a Mr Chant who was sitting on the verandah of a house looking towards the roadway about 300 yards after the curve in question.

[9] In the course of argument counsel for the appellant conceded that a court could not have "great confidence" in the observations of Mr Forrest, nevertheless he was a critical witness in the appellant's case. According to each of Mr and Mrs Forrest their vehicle was overtaken on a curve in the road just as they were leaving the township of Grandchester. Mr Forrest estimated the speed of his vehicle as no faster than 60 kilometres per hour at that time, and Mrs Forrest estimated it at approximately 80 kilometres per hour. According to Mr Forrest the overtaking vehicle was travelling at "double my speed". In his evidence Mr Forrest said the vehicle was a Commodore, chameleon colour, and the driver was a male with long blonde shoulder length hair and a blonde moustache. (In his initial statement to the appellant's solicitors he said the driver was a female). Despite obtaining that description of the driver he did not note the registration number of the vehicle but asked his wife to get its registration number. Mrs Forrest went to the glovebox in order to look for a pen or something to write down the registration number; in consequence she was not looking ahead to the roadway as their vehicle travelled the straight stretch of road. When Mr Forrest looked up the road again after speaking to his wife he could see the Commodore in the distance; it was the only vehicle that he saw in front of his vehicle.

[10] Both Mr and Mrs Forrest gave evidence that when their vehicle reached the bend they saw the appellant's vehicle on the right hand side of the road and stopped. Each said that, in effect, the dust was still settling when they arrived. There was at that stage no sign of the Commodore.

[11] Chant, from his position on the verandah, saw "an orange car ... go hooting along ... was flying" at a speed he estimated at between 160 to 180 kilometres per hour. He thought it was an old Ford Falcon but could not be certain. That vehicle was travelling in the same direction that the appellant had been travelling. A few minutes later a person came to the property and asked to use the phone because there had been an accident.

[12] Counsel for the respondent at trial conceded that there was an unidentified vehicle on the road around the time of the accident; the issue for the learned trial judge to determine was whether or not that unidentified vehicle caused the appellant to drive off the road to her left thereby in effect losing control of her vehicle. Each side called an "expert" in accident investigation. Mr Ken King gave evidence, over objection as to admissibility, as to "modelling" which he carried out in order to explain the movement of the appellant's vehicle. Dr Frank Grigg, an engineer, gave evidence for the respondent; ultimately his evidence was that there was no organised branch of scientific knowledge which would enable him to form a conclusion as to the circumstances in which the deviation of the appellant's vehicle off the roadway to the left was made.

[13] The learned trial judge noted that the opinion derived by King from his modelling was dependent on the speed at which the appellant's vehicle was travelling at the material time. In the absence of evidence as to speed assumptions had to be made. Her Honour, correctly in my view, observed:

"As Mr King's conclusion was based on an assumption about the speed of the plaintiff's vehicle and there is no evidence as to what speed the vehicle would have been travelling at, other than the plaintiff's evidence as to her usual practice, if I reject Mr King's conclusion, it means that I am rejecting the assumption that the plaintiff was driving her vehicle at a minimum of 80 km/hr at the time it veered off the road to the left. ... I should add that I found Mr King's modelling of little assistance when it was confined to such specific assumptions and, ultimately, was conceded as illustrating only the time and distance required to implement an assumed manoeuvre under assumed conditions".

[14] Mention should be made, though it is not necessary to go into detail, that the respondent at trial raised a number of possible explanations as causes of the accident. Her Honour carefully considered each of them and excluded all except "inattention on the plaintiff's part". As she said in the judgment: "It is a matter of common experience that many motor vehicle accidents result from momentary inattention on the part of the driver. It is not something which can be excluded taking into account all the evidence".

[15] Both at trial and on appeal senior counsel for the appellant relied heavily on a passage in the judgment of Menzies J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 309-10, which is quoted in the reasons for judgment of the learned trial judge. His submission was that the following factors supported the hypothesis that the unidentified vehicle caused the accident and made any competing hypothesis less likely. The factors to which he referred were the following:

(i) There was a vehicle travelling at high speed ahead of the Forrests' vehicle;

(ii) When the Forrests came upon the accident scene, the accident had only just occurred;

(iii) If the unidentified vehicle did not overtake the appellant's vehicle then it drove straight through the accident scene without stopping;

(iv) The unidentified vehicle had overtaken the Forrests' vehicle in inappropriate circumstances and therefore would be prepared to undertake a similar manoeuvre in overtaking the appellant on a curve;

(v) The topography of the road was such that if overtaking was attempted on the curve in question there would be a temptation to cut in;

(vi) The speed of the unidentified vehicle was high according to Mr and Mrs Forrest. Assuming Chant to have seen the same vehicle he also put its speed at being very high;

(vii) There is nothing in the appellant's character or habits to suggest that five minutes into a journey of this type she would be likely to be driving negligently so as to run off the road;

(viii) The effect of a vehicle overtaking at that point at high speed would be to startle a driver in the position of the appellant;

(ix) King's evidence demonstrates that the marks that are known on the road surface are not inconsistent with this hypothesis;

(x) A driver could easily perceive a need to swing back to the right after a sudden movement to the left of the steering wheel - on the appellant's hypothesis the driver in her position did not have time to make rational, careful decisions but was reacting to a situation suddenly created.

[16] Each of those factors was considered by the learned trial judge but in all the circumstances she declined to draw the inference suggested by the appellant. That was partly because of other matters emphasised by the respondent both at trial and on appeal.

[17] As senior counsel for the respondent pointed out, had the unidentified vehicle caused the accident, the relevant incident would have happened directly in front of Mr and Mrs Forrest, and in their full view. Neither of them saw the appellant's vehicle at all prior to the accident, and neither saw the incident occur. All they saw was the vehicle which overtook them driving along the straight road towards the point where the incident occurred. Given where the Forrests' car must have been when the unidentified vehicle reached the curve in question the appellant's vehicle must have been in view if it was then being overtaken. As it was not then in view the only conclusion open is that the unidentified vehicle passed the accident scene after the accident had occurred and shortly before the Forrests arrived.

[18] The failure of the unidentified vehicle to stop, if that was the case, is readily explained by the fact that travelling at high speed the driver may well not have appreciated that a vehicle stationary on the other side of the road (and virtually off the road) had recently overturned.

[19] Critically for present purposes the learned trial judge declined to draw the inference that the unidentified motor vehicle caused the accident because:

"To draw the inference that the unidentified motor vehicle, in effect, forced the plaintiff to veer left off the bitumen would be to ignore the fact that Mr Forrest did not see the plaintiff's vehicle on the road ahead of him, when he saw the unidentified motor vehicle in the distance. If the plaintiff's accident had happened immediately before the unidentified motor vehicle drove past the scene, it would still have been a fresh accident scene in the terms in which Mr and Mrs Forrest described it when they arrived".

[20] As the learned trial judge said "it would not have taken much to happen for her vehicle to veer off to the left hand side of the road". Given what was said earlier that momentary inattention could not be excluded, that remained a strong competing inference as to causation. Essentially the reasons of the learned trial judge establish that the appellant did not discharge the onus of proof on her of establishing that it was negligence of the unidentified vehicle which caused the accident. The fact that a number of possible explanations are excluded does not make the involvement of the unidentified vehicle more probable (Rhesa Shipping S.A. v Edmunds [1985] 1 WLR 948, La Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650 at 657 and Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140).

[21] The learned trial judge was clearly entitled to reach the conclusion that the appellant had not established on the balance of probabilities that an unidentified vehicle was the cause of the accident. Nothing said during the course of argument on appeal establishes that there was error in her Honour's approach.

[22] In all the circumstances the appeal should be dismissed with costs.

[23] WHITE J: I have read the reasons for judgment of Williams JA and agree with his Honour that the learned trial judge was entitled to conclude that the appellant had not established to the requisite standard that an unidentified vehicle was the cause of the accident. Her Honour canvassed all of the factors which it had been contended below would lead to the inference sought. Particularly in light of the evidence that the witness, Mr Forrest, did not see the appellant's vehicle on the road ahead of him when he saw the unidentified motor vehicle in the distance it was highly unlikely that it was the unidentified motor vehicle which caused the appellant to veer to the left off the bitumen.

[24] In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Menzies J, quoting from Bradshaw v McEwans Pty Ltd, unreported decision of the High Court delivered 27 April 1951, said at 310:

"All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence."

As the learned trial judge noted, it is a matter of common experience that many motor vehicle accidents result from momentary inattention on the part of the driver and it was not something which could be excluded taking into account all of the evidence.

[25] I agree with the order proposed by Williams JA.

[26] HOLMES J: I agree with the reasons for judgment of Williams JA and White J and the order they propose.