Aerofako BV v Peck; Morison & Anor v Peck

[1992] HCATrans 39

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S118 of 1992

B e t w e e n -

AEROFAKO BV

Applicant

and

MARK DOUGLAS PECK

Respondent

Office of the Registry

Sydney No Sll9 of 1992

B e t w e e n -

JAMES WILLIAM MORISON and LYNDA

JANETTE MORISON trading as

DUNGOWAN STORE

Applicants

and

MARK DOUGLAS PECK

Respondent

Applications for special leave

Aerofako 1 12/2/93

to appeal

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1992, AT 12.56 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  Your Honours, I appear with my learned

friend, MR.J.T. KEARNEY, for the applicant,

Aerofako. (instructed by McMahones)

MR P. MENZIES, QC:  I appear with my learned friend,

MR D.J.S. JENKINS, for the applicants, Morison.

(instructed by McMahon & Broadhurst)

MR J.S. COOMBS, QC: If the Court pleases, I appear with my

learned friend, MR C.K. HICKEY, for the respondent.

(instructed by Everingham Solomons & Co)

MASON CJ: It does not look a very promising case for

special leave, Mr Jackson.

MR JACKSON:  Your Honour, it is not a very promising way to

start, if I may say so with respect. Your Honours,

may I hand to the Court copies of our outline of

submissions which I hope will become more

promising.

MASON CJ: Yes.

MR JACKSON:  Your Honours, as is apparent from the outline

of submissions, the case is one which involves very

brief facts and the issue which we would seek to

raise is the question of the extent to which it is

permissible for the court, in an action of that

kind, to infer a course of events leading to injury

from what we would submit is really no evidence on

the question.

McHUGH J: Is that a special leave point, Mr Jackson?

MR JACKSON:  Your Honour, perhaps by itself, no, but we

would seek - if one were looking at the issue as

such, it would not be. I would accept that,

Your Honour. But it is a case where, we would say,

in the particular facts, it merits the grant of

special leave. It merits it because one has a

circumstance where the effect of the reasons for judgment in both the courts below has really been	to substitute, if I may say so with respect, to a
very badly injured plaintiff, a judgment which one
might suspect has an element of sympathy - based on
sympathy rather than there being evidence to
support it. Now, Your Honours, that is
fundamentally where the point arises.

Your Honours, may I just say something very

briefly about the facts? The initial circumstances

appear at page 2 and, Your Honours, commencing at

line 1, going through to page 3, about line 8.

Now, Your Honours, as is apparent from the

instructions on the can of Finilec, it was clear

from those instructions that, as indeed the judge

found, it might not work instantaneously.

Aerofako 2 12/2/93

Your Honours, that appears at page 6(K), line 19, through to page 6(L), at about line 17, and

Your Honours will see, between lines 11 and 17,

that the driving for the distance of 5 to

10 kilometres was to allow the Finilec to spread in

the tyre and mend the puncture.

Now, Your Honours, the Finilec might not work

instantaneously and it might seal the leak, but the

leak come alive again. Your Honours, that that is

so appears from a number of findings which I will

give Your Honours very quickly: page 6(D),

line 20; through to page 6(E), line 1; the same

page - and, Your Honours, these are passages in the

evidence the judge seems to have accepted -

page 6(E), lines 10 to 15; and page 6(E), line 19,

through to page 6(G), about line 10; and finally,

page 6(1), lines 21 to 23.

Now, Your Honours, the respondent, of course,

had no recollection of the accident; no other

person saw it happen. There was a Mr Beresford,

whose evidence the judge accepted, who saw the

plaintiff shortly before the accident. The summary

of his evidence appears at page 3, line 17, through

to page 4, line 7. Your Honours, all that appears

from that evidence is that the motor cyclej in the

event, did not take the bend; he did not see it

happen and the motor cycle had been travelling

normally when he last saw it.

The only other evidence of objective fact was

that the tyre, which had originally been flat, had

become again largely deflated some quarter of an

hour to half an hour later. That appears in three

passages: page 19, lines 19 to 24; and in the

Court of Appeal there is a rather fuller discussion

of the evidence on the point at page 43, line 23,

through to page 44, line 8, and then at the bottom

of page 44, line 26 through to line 8 on page 45.

Now, Your Honours, that was the objective evidence

and, in our submission, any suggestion that the

accident happened in the manner referred to as the

judge found in finding 4 on page 6(L), namely,

that:

there was a relatively sudden loss of pressure

resulting in the cycle becoming difficult to

control -

was a matter of pure speculation. Your Honours, I

say it was pure speculation with one qualification;

the qualification being that it was based on

evidence which must itself have been pure

speculation, the evidence being that of Mr Osman

referred to at page 6(G), line 37, through to,

importantly, page 6(H), lines 17 to 19.

Aerofako 3 12/2/93

MASON CJ:  Mr Jackson, we will adjourn now and resume at

2 o'clock.

AT 1.05 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.05 PM:

MASON CJ: Yes, Mr Jackson?

MR JACKSON:  Your Honours, may I say three more things? The

first is this, that, in summary, the effect of the

evidence was that all one had was that there was a

tyre which had been reinflated with Finilec.	The
Finilec label said it was necessary to go 5 to
10 kilometres to effect a seal.	The bike had only

travelled 2.2 kilometres when the accident

happened. It was travelling in no way abnormally

shortly prior to the accident and at a time after

the accident when, of course, the 5 to

10 kilometres had not been travelled, the tyre had

lost a lot of pressure. In those circumstances, we

would submit it was not possible to infer what

appears at page 6(H), lines 17 to 19.

Your Honours, there was never, we would

submit, a situation - this is the second thing -

where the circumstances gave rise to a reasonable

and definite inference of the kind necessary for
the plaintiff to succeed in the case, and I use the

expression coming from TNT Management Pty Limited v

Brooks, (1978) 23 ALR 345, at pages 349 to 350,

Chief Justice Gibbs.

Your Honours, the third thing we would submit

is that it is a case where, if one makes the

assumption that the second thing I said was

correct, one way or another the plight of the

plaintiff has prevailed. Your Honours, those are

the submissions we would make.

MASON CJ:  Thank you, Mr Jackson. Mr Menzies?

MR MENZIES:  Your Honours, we would adopt, with respect, the

submissions of Mr Jackson and wish to add nothing

further.

MASON CJ:  The proposed appeals relate to a decision of the

Court of Appeal which involved concurrent findings
of fact and proceeded on a thorough examination of

the evidence. We are not persuaded that, in the

Aerofako 4 12/2/93

circumstances, there is any special leave point made out and, accordingly, the applications for special leave to appeal are refused.

MR COOMBS:  I ask for costs, Your Honour.

MASON CJ Not opposed, Mr Jackson, or Mr Menzies?

MR JACKSON: There is nothing I can say in relation to that,

Your Honour.

MASON CJ:  The applications are refused with costs.

AT 2.08 PM THE MATTER WAS ADJOURNED SINE DIE

Aerofako 12/2/93