Carty and Carty v Parnell

[1992] QCA 112

IN THE COURT OF APPEAL	[1992] QCA 112
SUPREME COURT OF QUEENSLAND	Appeal No. 98 of 1991
BETWEEN:

LENORD CARTY and MARGARET SHIRLEY MAY CARTY

Plaintiffs Appellants

AND:

BARRY JOHN PARNELL and BRUCE WILLIAM PARNELL

Executors of the Estate of WILLIAM JOHN PARNELL

Defendants Respondents

JUDGMENT OF THE COURT

The appellants are the unsuccessful plaintiffs in an action for damages for negligence arising out of a head-on collision between their prime mover and semi-trailer motor vehicle and a Toyota sedan driven by William John Parnell deceased on the Bruce Highway on 24 February 1988. The defendants are the executors of the deceased's estate. The claim is for property damage to the semi-trailer and for loss of use thereof. The amount of the plaintiffs' damages was agreed in the sum of $100,560.52.

It was common ground that the collision occurred on the plaintiffs' correct side of the road and that, shortly prior to the collision, when the vehicles were separated by some 40 metres or so, the deceased's vehicle veered on to its incorrect side of the road and into collision with the semi- trailer. In the absence of further evidence, the only reasonable inference was that the veering movement was negligent and was the sole cause of the collision. The defendants did not assert that the plaintiffs' driver was negligent.

However, they alleged that the collision and its consequences "were caused by the effects of a medical condition ... which suddenly and without warning afflicted the said William John Parnell as he was driving the said Toyota sedan along the Bruce Highway towards the oncoming prime mover and trailer which condition either killed the said William John Parnell then and there or so completely deprived him of the ability to properly manage and control the said Toyota sedan that he could not prevent or avoid the said collision." That medical condition, which was not particularised in the defence, was later particularised as "the sudden rupturing of the aorta and/or blacking out and/or cramp".

There was a conflict in medical testimony as to whether the aorta, which had certainly been ruptured by the time of post-mortem upon the deceased, was ruptured before the collision or in it. The trial judge, as he was entitled to, accepted the medical testimony which favoured the view that the aorta was ruptured in the collision. The defendants did not contest his Honour's conclusion in this respect on appeal.

However, Mrs Parnell, the wife of the deceased, who was a passenger in the Toyota sedan at the time of the collision, gave evidence that just before the accident, the deceased turned his head left and uttered a sound which she could best describe as a groan. He had made a similar sound, she said, on a previous occasion two or three years before when his arm had pins and needles. From that, and apparently nothing more, His Honour inferred that "the better view of her evidence is that it demonstrates that he was in a state of unawareness or of loss of consciousness, in either event, short of death."

We find it impossible to see how His Honour could have drawn that inference from that evidence. His Honour's conclusion that the deceased was in a state of unawareness or loss of consciousness is unsupported by any medical evidence or by any observable state from which a reasonable layman could infer that a person was unconscious. The highest the medical evidence went in this respect was, as His Honour recognised, that the deceased suffered from a heart condition or a partial obstruction of the vertebra-basilar arteries as a consequence of cervical spondylosis either of which could have produced giddiness, confusion, disorientation or loss of consciousness. This fell far short of establishing loss of consciousness on this occasion as anything higher than a mere possibility.

His Honour seemed to recognise this and to think that this was sufficient to negative negligence because he said "that the plaintiff had to positively demonstrate negligence and to that extent exclude the possible consequences of such conditions". The plaintiffs carried no such heavy burden.

It was sufficient for them to establish, on the balance of probabilities, that the inference of negligence should be drawn. In order to negative that inference, there would need to be some other inference, inconsistent with it and equally probable. Mere hypothesis based on speculation is not enough. In the absence of such competing inference the plaintiffs were entitled to judgment.

Accordingly we would allow the appeal and enter judgment for the appellants in the sum of $100,560.52 with interest from 19 June 1990 at 12 per cent with costs here and in the court below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 98 of 1991
Before the Court of Appeal
Mr Justice Davies Mr Justice McPherson Mr Justice Williams
BETWEEN:

LENORD CARTY and MARGARET SHIRLEY MAY CARTY

Plaintiffs Appellants

AND:

BARRY JOHN PARNELL and BRUCE WILLIAM PARNELL

Executors of the Estate of WILLIAM JOHN PARNELL

Defendants Respondents

JUDGMENT OF THE COURT

Delivered the 7th day of April 1992

MINUTE OF ORDER:	Appeal allowed. Judgment below is set aside and in lieu thereof judgment is given for the appellants in the sum of $100,562.52 with interest on that sum from 19 June 1990 at 12 per cent and with costs of the appeal and of the trial.
CATCHWORDS:	APPEAL AND NEW TRIAL - FINDINGS OF FACT - appeal from finding that deceased driver not negligent in that veering caused by effects of sudden medical condition - whether any evidence to support such finding - whether burden on plaintiff to exclude possible consequences for such conditions
Counsel:	G. Flint with him M. Jarrett for the Appellants P. Land for the Respondents
Solicitors:	Baker Johnson for the Appellants Cusack & Associates for the Respondents
Hearing date(s):	6 and 7 April 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 98 of 1991
BETWEEN:

LENORD CARTY and MARGARET SHIRLEY MAY CARTY

Plaintiffs Appellants

AND:

BARRY JOHN PARNELL and BRUCE WILLIAM PARNELL

Executors of the Estate of WILLIAM JOHN PARNELL

Defendants Respondents

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DAVIES JA
McPHERSON JA
WILLIAMS J
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Reasons of the Court delivered the 7th day of

April 1992

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"APPEAL ALLOWED. JUDGMENT BELOW IS SET ASIDE AND IN LIEU THEREOF JUDGMENT IS GIVEN FOR THE APPELLANTS IN THE SUM OF $100,562.52 WITH INTEREST ON THAT SUM FROM 19 JUNE 1990 AT 12 PER CENT AND WITH COSTS OF THE APPEAL AND OF THE TRIAL."