Acatincai v Insurance Commission of Western Australia

[2003] WASCA 39

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   ACATINCAI -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2003] WASCA 39

CORAM:   MURRAY J

ANDERSON J
STEYTLER J

HEARD:   14 FEBRUARY 2003

DELIVERED          :   14 FEBRUARY 2003

PUBLISHED           :  14 MARCH 2003

FILE NO/S:   FUL 87 of 2002

BETWEEN:   ION ACATINCAI

Appellant

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Respondent

FILE NO/S              :FUL 88 of 2002

BETWEEN             :ION ACATINCAI

Appellant

AND

BEVERLEY ELLSBETH FOX & DAMIEN ALEXANDER FOX by this next friend BEVERLEY ELLSBETH FOX
Respondent

Catchwords:

Negligence - Car driver killed in collision with semi-trailer - No direct evidence of circumstances of accident acceptable to Court - Admissibility of evidence of general mode of driving in the area in question by deceased car driver - Whether inference of negligence available against truck driver or whether negligence not established against either driver - Application of maxim res ipsa loquitur

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 7

Result:

Both appeals and cross-appeal dismissed with costs

Category:    A

Representation:

FUL 87 of 2002

Counsel:

Appellant:     Mr A J Stavrianou

Respondent:     Mr D R Sands

Solicitors:

Appellant:     D'Angelo & Partners

Respondent:     Talbot & Oliver

FUL 88 of 2002

Counsel:

Appellant:     Mr A J Stavrianou

Respondent:     Mr I Weldon

Solicitors:

Appellant:     D'Angelo & Partners

Respondent:     Lawton Gillon

Case(s) referred to in judgment(s):

Davis v Bunn (1936) 56 CLR 246

Government Insurance Office (NSW) v Fredrichberg (1968) 118 CLR 403

Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849

Lahrs v Eichsteadt [1961] Qd R 457

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167

Bessell v R, unreported; SCt of WA; Library No 980199; 4 March 1998

Devries v Australian National Railways Commission (1993) 177 CLR 472

Foreman v Pargin & Anor [2001] WASCA 351

Garrett v Nicholson (1999) 21 WAR 226

Holloway v McFeeters (1956) 94 CLR 470

Malik v Malik [2001] WASCA 371

Nesterczuk v Mortimore (1965) 115 CLR 140

Sheppard v Blakey & Ors [2001] WASCA 309

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588

TNT Management Pty Ltd v Brooks (1979) 23 ALR 345

West v Government Insurance Office (NSW) (1981) 148 CLR 62

1. MURRAY J:  In May 2002, H.H. Jackson DCJ gave judgment in respect of an issue of liability only, in two actions which were together tried before him.  One of them was an action by the appellant against the Insurance Commission of WA under the Motor Vehicle (Third Party Insurance) Act 1943, s 7(2), which subsection, where an insured person has caused bodily injury by negligence in the driving of a motor vehicle, but the proposed defendant is dead, provides for the action which would have been brought against the deceased for negligence to be brought against the Commission.

2. The second action, in respect of the same motor vehicle accident, was brought by the widow and child of the deceased driver against the appellant under the Fatal Accidents Act 1959 (WA), s 4 and s 6. That action also depended upon the alleged "wrongful act, neglect or default" of the person who caused the death of the deceased.

3. It can be seen therefore that the trial of the issue of liability in each of the two actions depended upon establishing negligence, in the first case, that of the deceased as the driver of a motor vehicle and, in the second case, that of the appellant as the driver of a motor vehicle which came into collision with the deceased's vehicle.  The trial of the two actions together had the effect, in my opinion, that the trial Judge would not draw the conclusion that either driver had been negligent unless, on the case of or concerning the other driver, that issue was established on the balance of probabilities.

4. The trial Judge found certain facts to be uncontroverted.  The accident happened on 4 June 1998 at about 7.50 am on Toodyay Road at Red Hill.  The appellant, a truck driver, was driving his unloaded semi‑trailer downhill.  The deceased was driving his Volvo sedan up the hill.  No doubt because of the steepness of the hill, there are three lanes in the road.  One is available for vehicles driving downhill and two are available for vehicles travelling up the hill.  Those lanes are divided from each other by a broken white line.  The downhill lane is divided from the uphill lanes by an unbroken double white line.  The speed limit is 80 kph.

5. At the time of the accident the road was wet and slippery.  For the appellant, as he proceeded downhill, the road curved to the right.  The collision occurred on this bend and on the near side lane of the road for the deceased's direction of travel.  At the top of the hill there was a sign reading, "Trucks use low gear", surmounted by a standard sign depicting a motor vehicle travelling down a steep decline.  The appellant would have passed this sign about 350 metres before the point of the accident. 

6. Examination of both vehicles revealed no mechanical or other defect which might have contributed to the occurrence of the accident.  Each driver was alone in his vehicle and there were no eyewitnesses.  Therefore, the only person in a position to give direct evidence as to the cause of the collision was the appellant.

7. His pleaded case was that as he travelled down the hill he saw the Volvo sedan approaching him and drifting across the road into his path.  He flashed his headlights at the deceased who then proceeded to change course in an apparent attempt to move back onto his correct side of the road.  At the same time the appellant applied his brakes with the result that, by reason of the nature of his vehicle, the steepness of the decline and the wetness of the road, the semi-trailer "jack-knifed" and, while thereby out of control, collided with the deceased's car.  The appellant alleged that the deceased was travelling at between 85‑95 kph, an excessive speed, that he was not keeping a proper lookout and he was not maintaining proper control of his vehicle.  The appellant pleaded that the deceased was negligent in allowing his vehicle to come over onto the appellant's side of the road and in failing to apply his brakes.

8. The other action brought by Mrs Fox, the deceased's widow and the executrix of his estate, on her behalf and on behalf of their child, the allegation of negligence was that the appellant allowed his vehicle to cross the centre dividing line of the road and into the nearside lane for vehicles travelling in the opposite direction, with the result that the semi-trailer collided with the car driven by the deceased.  So in that way the competing contentions about negligence were presented to the trial Judge.

9. Before I refer to the evidence and his Honour's findings of fact it is convenient to mention that at the conclusion of his judgment his Honour referred to the fact that for the Insurance Commission it had been put, correctly as a statement of the legal position, that it was open to his Honour to find that one or other of the drivers was negligent, that both were or that it had not been established on the balance of probabilities that either was.  Therefore one or the other or both actions might result in judgment for the plaintiff or both might result in judgment for the defendant.  His Honour's conclusion was that the appellant's claim should be dismissed and that of Mrs Fox should succeed.   His Honour therefore dismissed the appellant's claim against the Insurance Commission and gave judgment for Mrs Fox against the appellant for damages to be assessed.

10. The appellant appeals against both judgments.  At the conclusion of the hearing we dismissed both appeals. 

11. In the appeal against the dismissal of the appellant's claim against the Insurance Commission, the Commission cross-appealed, effectively claiming that s 7(1) of the Motor Vehicle (Third Party Insurance) Act had not been satisfied because there was no finding in respect of the negligent driving of the appellant, a determination necessary to be made if, under s 7(2), the respondents, Mrs Fox and her son, are to be able to recover the amount of a judgment against the appellant from the Insurance Commission.

12. It is abundantly clear that the basis of the judgment for Mrs Fox, as executrix of the estate and the next friend of her son, against the appellant was his negligence and the trial Judge so found.  It was for that reason that I joined in the order dismissing the cross-appeal. 

13. I turn then to my reasons for joining in the orders dismissing both appeals.

14. The trial Judge gave detailed consideration to the evidence of the appellant.  His Honour noted that he had only recovered a memory of events months after the accident, at which time he was being spoken to about it by friends and by people in authority such as investigating police officers.  His Honour said that in those circumstances his evidence, which generally supported the allegations made in the pleadings, was unreliable and his Honour said he had difficulty in accepting that the appellant had a real, let alone accurate, memory of the events in question.  He thought the appellant's evidence to be "inherently unlikely" and inconsistent with other evidence. 

15. His Honour, as I say, rejected the account given by the appellant as to the circumstances in which the accident occurred, but I note it was also the appellant's evidence that he had travelled down the hill many times.  His habit was to travel at 65 kph and the appellant gave evidence that he knew that, particularly with an unloaded semi-trailer, if he braked suddenly on the hill at that speed on a wet road there would be a danger that he would lose control of the vehicle.

16. There was a body of circumstantial evidence concerning the accident scene to which the trial Judge adverted.  A Mrs Kinnear had given evidence, accepted by his Honour, that she was travelling in the same direction as the Volvo, up the hill, but was obviously some distance behind the Volvo.  She came upon the accident scene.  It was drizzling rain and the road surface was oily and wet and extremely slippery.  Although this vehicle was travelling east at about 7.50 am Mrs Kinnear said that it was overcast and there was no problem of glare from the sun.  That was also the evidence of a Mr Oliver whose direction of travel and evidence about the scene was, in substance, the same as that given by Mrs Kinnear. 

17. The scene was visited by a Detective Wisbey, a motor crash investigator.  He was able to describe the physical indicators at the scene which in his view supported his opinion that the point of impact had been some 50 metres up the hill from the position where the vehicles finished up, and in the near side lane for the deceased's vehicle; completely on the wrong side of the road for the appellant's direction of travel.  Detective Wisbey's partner, PC Gaull, also gave evidence of detailed observations about the scene of the accident.

18. A Mr Fox, not related to the deceased, gave evidence which was also accepted by the trial Judge that he was driving his motor car east on Toodyay Road at about 80 kph immediately ahead of the Volvo sedan.  Before he commenced to climb the hill it appeared to him that the Volvo had come up behind him until it was too close for his comfort.  He touched his brakes and the Volvo dropped back.  Later, as he climbed the hill, he noticed that the Volvo was dropping further back behind him.  It was quite a distance behind him when, still travelling at about 80 kph, he lost sight of it as he negotiated the left‑hand bend upon which, a little later, the accident occurred.  This was important evidence, in my view and in the view of the trial Judge. 

19. It was coupled with evidence from Mrs Fox, the deceased's widow, which was admitted over the appellant's objection.  Mrs Fox gave evidence that her husband was an airline pilot.  They owned a property in Toodyay on which they had intended to grow olives.  They proposed to retire there.  On the day of the accident, 4 June 1998, Mr Fox left his home to drive to Toodyay in the Volvo sedan which was then 18 years old.  Mrs Fox said the vehicle was heavy and slow, particularly uphill.  She described her husband as a very careful driver.  Going up Red Hill, because the Volvo was slow and every other vehicle would pass them, it was the deceased's habit to drive in the kerbside lane.  He was particularly careful about that at the left‑hand bend where the accident occurred which she described as "a blind corner".  Mrs Fox said the car tended to make heavy weather of the hill and its speed would slow as it travelled uphill.  The deceased was under no pressure of time.

20. The objection to the admissibility of this evidence is not now maintained by the appellant.  The evidence is circumstantial evidence and is clearly admissible:  Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849, 854, 854, where Phillimore LJ put the matter concisely:

    "Wherever an inquiry has to be made into the cause of the death of a person, and, there being no direct evidence, recourse must be had to circumstantial evidence, any evidence as to the habits and ordinary doings of the deceased which may contribute to the circumstances by throwing light upon the probable cause of death is admissible, …."

21. Reference may also be made to the decision of the High Court in Lahrs v Eichsteadt [1961] Qd R 457, 461, per Dixon CJ.

22. For the appellant it is argued that this evidence and the evidence of Mr Fox, together with the evidence of the physical indications at the scene of the accident is of insufficient weight to properly enable the conclusion to be drawn on the balance of probabilities in the action by the appellant against the Commission that Mr Fox was not driving negligently and, in the action by Mrs Fox against the appellant, that his negligence did cause the accident.  I put the argument in that way, accepting the proposition advanced by the appellant that the onus of proving his negligence rested upon Mrs Fox on the balance of probabilities in the same way that he carried the onus of proving the negligence of the deceased.

23. I have said that in my opinion it is clear that the trial Judge did find negligence on the part of the appellant and he was not so persuaded in respect of the driving of the deceased.  In fact, his Honour put his finding with respect to the deceased in terms that he could not attribute any negligence to him.  I was unable to discern any error in the approach taken by the trial Judge or in the conclusions he reached.  For that reason I joined in the dismissal of both appeals.

24. Given that the rejection of the appellant's evidence, a decision clearly open to the trial Judge, meant that there was no evidence as to the occurrence of the accident from this source, it seems to me that the evidence which was available to his Honour was that concerned with the nature of the place where the accident occurred, the steepness of the hill, the lack of sun glare for a driver travelling in the same direction as the deceased, the number and nature of the lanes on the road, the nature of the left‑hand bend as it was for the deceased and the right‑hand bend as it was for the appellant.  The evidence about these matters was uncontroverted and I have referred to the facts as they were found by the trial Judge.

25. Then one may turn to the vehicles themselves and the lack of any relevant mechanical defect.  Regard was to be had to the age and slowness of the deceased's vehicle, particularly when travelling uphill and more particularly when travelling up this hill, during which it would lose speed.  There was the evidence of the appellant that the semi-trailer was a vehicle which might, particularly when unladen, jack-knife and travel out of control, particularly if the brakes were applied too strongly on a wet road when the vehicle was travelling at any speed downhill.  There was evidence which indicated that the vehicle had moved quite sharply across the road to its right to bring it onto the wrong side of the road and into collision with the Volvo which was then travelling in its near side lane.  The semi-trailer finished partly on top of the Volvo in such a way as to support the conclusion that it had jack‑knifed.  There was no evidence on the road that the Volvo had at any time prior to the point of impact been on its wrong side of the road, or indeed in any particular position on the road.

26. It was here that the circumstantial evidence given by Mrs Fox as to the deceased's driving habits, together with the evidence of the witness Mr Fox, assumed some importance.  To my mind it had significant probative value.  There was nothing to indicate that the deceased was in any particular hurry, although his behaviour before commencing to travel up the hill when he came up close behind Mr Fox might suggest that he was attempting "to get a run at the hill".  Nonetheless, his speed dropped off as he travelled up the hill and, although I do not think that Mr Fox's evidence was directly that the deceased was travelling in the kerbside lane, there was every indication that he would follow his usual driving habit in travelling up this hill.  There was in my opinion, therefore, sufficient evidence to support the conclusion that the appellant had failed to establish negligence on the part of the deceased to the required standard.

27. That leaves the question of negligence on the part of the appellant.  I have said a number of times that I am satisfied that the trial Judge made this finding.  With respect to his Honour, he gave little in the way of reasons for the conclusion, simply emphasising some aspects of the factual circumstances as he found them to be, but the short point to which his Honour did advert is that the semi-trailer, in circumstances for which there appeared to be no explanation consistent with the absence of negligence, at about the point where, having embarked upon its downhill journey, it was about to enter the right‑hand bend, commenced to cross the road from the correct side until it was completely on its incorrect side of the road and came into collision with the Volvo at a point where the semi-trailer was obviously out of control and jack‑knifing.  The question was then, whether the evidence was sufficient for the conclusion to be drawn that the cause of this extraordinary manoeuvre was some negligence in the manner of driving on the part of the appellant, although how precisely he was negligent was unknown.  It seems to me that the evidence was quite sufficient.

28. The process of reasoning, accepted by the courts, is often expressed in the maxim res ipsa loquitur.  It is unnecessary to plead the doctrine.  It is sufficient to follow the ordinary rule of pleading the facts from which, with the aid of the reasoning process represented by the maxim, the conclusion of negligence may be inferred, thus discharging the obligation of proof on the balance of probabilities.

29. The cases where the maxim has been discussed are many.  A good discussion is that, particularly by Evatt J, to be found in one of the leading Australian authorities, the decision of the High Court in Davis v Bunn (1936) 56 CLR 246, 268. The nature of the doctrine was recently reaffirmed by the High Court in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, 132 [22] – 134[25].

30. Properly understood the maxim simply refers to the process of proof, where direct evidence is lacking, by circumstantial evidence from which the conclusion of negligence may be inferred from the fact of the accident in the circumstances proven, although its exact cause cannot be established.  The maxim describes a method of inferring a fact in issue from circumstantial evidence, an inference strengthened where, although the accident might have been caused without the fault of the defendant, the absence of an explanation consistent with that view of the facts or, as in this case, the rejection of evidence of that kind, justifies the conclusion that it is more probable than not that the defendant was negligent. 

1. The maxim merely describes a commonsense approach to the drawing of the inference of negligence and it is very often applied in a case, which is this case, where the defendant's vehicle veers out of control into the path of oncoming traffic.  Davis v Bunn was such a case and see eg, Government Insurance Office (NSW) v Fredrichberg (1968) 118 CLR 403. Although it is possible that the event which caused the accident was the result of some cause which does not imply negligence, eg, illness on the part of the driver, an unforeseeable blackout, mechanical failure,

the treacherous condition of the road which is in the nature of a trap or the like, such an explanation is mere speculation in the absence of evidence which would give rise to it as a distinct possibility.

1. In this case, in my opinion, the behaviour of the appellant's vehicle immediately prior to the accident was of a kind from which the inference of negligence would ordinarily be drawn in the absence of evidence to the contrary.  In this case there was no such evidence.  There was nothing to suggest that the appellant was ill so that in some way he unexpectedly lost his capacity to control the vehicle and there was no evidence of brake or other mechanical failure.  There was nothing to explain the behaviour of his vehicle other than the conclusion that the appellant was in some way at fault and negligent in the driving of the vehicle, either because he chose the wrong gear for the steep descent, travelled at too high a speed, misjudged an application of the brakes, failed to steer the vehicle so that he kept to his side of the road, or perhaps a combination of any or all of those misjudgments, resulting in the loss of control of the vehicle in the course of an effort to correct a dangerous situation. 

2. It was for those reasons that I joined in the orders dismissing the appeals. 

3. ANDERSON J:  My reasons for joining in the orders made, after hearing argument on 14 February 2003, are fully expressed in the reasons for judgment of Murray J with which I agree and to which I can add nothing useful.

4. STEYTLER J:  I have had the advantage of reading the reasons for decision of Murray J.  They reflect my own reasons for joining in the order dismissing the appeals.  There is nothing I wish to add.