CKI Utilities Development Ltd v Star Track Express Pty Ltd - [2009] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CKI UTILITIES DEVELOPMENT LTD & ORS v STAR TRACK EXPRESS PTY LTD
[2009] SASC 106
Judgment of The Honourable Justice Gray
24 April 2009
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE INFERENCES OF FACT INVOLVED - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
Appeal against decision of Magistrate dismissing both plaintiffs' claim and defendant's counterclaim - claim and counterclaim arose from collision between truck and stobie pole - both truck and stobie pole suffered damage - each party alleged liability of other party - Magistrate not able to conclude how collision caused - whether stobie pole intruded into carriageway causing obstruction - inferences to be drawn from evidence.
Held: appeal allowed - orders of Magistrate set aside - judgment entered in favour of plaintiff.
Supreme Court Civil Rules 2006 (SA) r 292, referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Reid v Kerr (1974) 9 SASR 367; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; WAEJ v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 188; SS Hontestroom v SS Sagaporack [1972] AC 37; Watt or Thomas v Thomas [1947] AC 484; Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403; Nominal Defendant v Haslbauer (1967) 117 CLR 448, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"res ipsa loquitur"

CKI UTILITIES DEVELOPMENT LTD & ORS v STAR TRACK EXPRESS PTY LTD
[2009] SASC 106
Magistrates Appeal
GRAY J.
Introduction

This is an appeal following a trial in civil proceedings in the Magistrates Court.
The issues at trial arose from an incident that occurred when a Mitsubishi Canter truck collided with a stobie pole on Monday 23 October 2006, at or about 11:00 am on North East Road, Modbury.[1] The truck was travelling north in the lane nearest the left hand kerb of a major road with three lanes for northbound traffic. The stobie pole was positioned adjacent to the roadway, but erected on the footpath. It was one of a number of poles along the road. A stobie pole is a steel and concrete pole which carries electricity and telephone lines, often referred to in States other than South Australia as utility, telegraph or power poles.
[1] This road has variously been referred to in evidence as North East Road, Main North East Road and Main North Road. The correct terminology is North East Road.
The plaintiffs and appellants, CKI Utilities Development Ltd, HEI Utilities Development Ltd, CKI Utilities Holdings Ltd, HEI Utilities Holdings Ltd and CKI/HEI Utilities Distribution Ltd, were the owner and authority responsible for the stobie pole. The truck driver David Anthony Youngman, was an employee of the defendant and respondent, Star Track Express Pty Ltd. The plaintiffs claimed that the truck driver failed to have sufficient regard to the presence of the pole, failed to take reasonable steps to avoid damaging the pole, failed to keep the truck at a reasonable distance from the pole and failed to keep the truck and all of its parts on the carriageway. This, the plaintiffs contended, constituted negligence and trespass on the part of the truck driver for which the defendant was vicariously liable. The plaintiffs claimed damages of $7,340.61.
The defendant claimed that the plaintiffs’ negligence or nuisance caused the accident. At trial, the defendant contended that the pole spontaneously collapsed causing the damage to the truck, or in the alternative, that it was leaning into the road creating an obstruction, or in the further alternative that the transformer on the pole was mounted too low, obstructing the carriageway and causing the collision. The defendant claimed to suffer loss in the sum of $10,157.95.
The Magistrate was unable to make a finding as to how the collision between the truck and the stobie pole was caused, notwithstanding evidence given by three witnesses. As a consequence the claim and counterclaim were dismissed.
On appeal, counsel for the defendant conceded that if the pole and the attached transformer were not intruding onto the carriageway, the plaintiffs’ claim would succeed. The contention advanced at trial, that the pole spontaneously collapsed, was abandoned. Consequently the critical issue on appeal was whether the pole was intruding onto the carriageway so as to cause an obstruction.
The Trial
North East Road is a major arterial road and at the point where the collision occurred, has three lanes for north-bound traffic.
The plaintiffs called one witness. Peter Sydney Perry, an operations field consultant employed by the plaintiffs, gave evidence that he inspected the pole about two months prior to the collision. At that time, Mr Perry considered that the pole was structurally sound. He observed that there was no twist or lean to the pole. In addition, Mr Perry said that on his nightly journey home from work, travelling north on North East Road he regularly drove past the pole. He made no observations of any lean in the pole or anything untoward about the pole or its position.
The defendant called the truck driver, Mr Youngman. He outlined his extensive driving experience. He explained that he had been making a delivery on the morning of 23 October 2006. He had been travelling north on North East Road and he had stopped in the left lane to make a delivery to a private home. The premises were some distance south of the pole. Mr Youngman described his vehicle as a small three tonne pantechnicon with a maximum height of 3.3 metres.
Mr Youngman recounted that he finished his paperwork, indicated that his vehicle was to enter into the carriageway and commenced to move in the left hand lane, that is, the lane nearest the kerb. He described catching a glimpse of a vehicle in the lane ahead and deciding to move to the centre of the three lanes for north-bound traffic. He said he moved partly into the centre lane and then pulled back into the left lane. This move was not a swerve, but rather a glide to the left. It is relevant to record that a camber on the carriageway would tend to compound a vehicle’s move to the left. Mr Youngman gave evidence that immediately after he manoeuvred to the left he was bounced about in the cabin of his truck. There was no evidence to suggest that Mr Youngman had straightened from the left hand manoeuvre before being bounced about.
The defendant also called Bruce Robert Bowden, a nearby resident on North East Road who heard the collision and witnessed the aftermath. Mr Bowden gave evidence as to the condition of the pole prior to the collision. Mr Bowden said that previous collisions involving the pole had left it in a damaged condition and that there was a lean to the pole. During cross-examination, Mr Bowden described the pole as leaning away from the carriageway – that is, toward the house properties rather than toward the road. Additionally, Mr Bowden indicated that to his knowledge, there had been three incidents involving the pole in the preceding 46 years. He said that he had observed “B doubles”[2] using the lane nearest the left hand kerb many times without incurring any difficulties with the pole and without collisions occurring. Mr Bowden considered that the transformer was attached very low on the pole and could potentially have obstructed the carriageway.
[2] B Double is defined as a truck consisting of a prime mover towing two semi-trailers.
The evidence of the witnesses was supplemented by a number of photographs of the scene showing the defendant’s truck and the damaged pole. Regrettably, there was no evidence regarding the relevant dimensions including the height of the pole and transformer, the precise damage suffered by the truck, the degree of camber on the road, the position of the pole in relation to the kerb and carriageway and the dimensions of the kerb and carriageway.
Magistrate’s Findings
The Magistrate placed little reliance on Mr Bowden’s evidence. Although Mr Bowden impressed as an honest witness, his recollection of the events was limited. The Magistrate also appeared to place no reliance on Mr Perry’s evidence, finding that his evidence was neither objective nor expert and was self-serving. In her rejection of Mr Perry’s evidence, the Magistrate stated:
Obviously, Mr Perry in his senior role with the plaintiff company has the capacity to make an opinion of that nature but that is qualified on the basis that Mr Perry has no engineering qualification, no measurements were taken by him and he did not seek an engineer’s opinion, even though the plaintiff company has engineers employed by it. Following the collision, no expert opinion was gathered by him on the issue as to the point or the height of impact or whether the Stobie pole had collapsed under its own weight or from prior collision damage. I find that Mr Perry’s evidence is not an objective opinion nor is it the opinion of an expert. To an extent his evidence is self-serving and of limited usefulness to the court.
The Magistrate concluded that notwithstanding the fact that the truck struck the pole, in her view, the evidence did not allow a conclusion to be drawn on the balance of probabilities as to how this had occurred. The Magistrate reasoned:
I find that the truck and the Stobie pole came into contact with each other. I find that there was damage caused to both. The weight of the evidence is not enough for me to conclude how this was caused. There is no expert evidence from either the plaintiff nor the defendant and in the absence of expert evidence I am not prepared to resort to guesswork to reach a conclusion that either the plaintiff or defendant wishes me to find.
Given the background history of the Stobie pole and the state in which the truck is depicted in the aftermath of the collision as shown in photographs tendered as Exhibits D1, D2, D3, P2 and P3, I cannot find that the Stobie pole was overhanging or that the Stobie pole was causing an obstruction to the truck or causing any other hazard. Nor can I conclude that the driver of the truck was negligent in the manner in which he drove the truck prior to the subject collision. I do not know the first point of impact that the truck had with the Stobie pole. Maybe that might have given me a clearer picture as to where liability lies in this matter.
Both the plaintiff and the defendant are relying upon inferences rather than evidence. On the plaintiff’s part, I have been asked to find that the truck collided with the Stobie pole on the basis that the driver was moving to his left immediately prior to the collision, that he moved further than he thought he had and also due to a camber in the road, the truck sat on a slight incline causing the top of the truck to be closer to the footpath than the rest of it. I find that there is no evidence that there was any veering or swerving to the left by the truck driver. There is no evidence as to the first point of impact to the Stobie pole. There is no evidence of the exact camber of the road (if any) to reach the conclusion sought by the plaintiff.
The defendant asserts that the Stobie pole was overhanging but there is no evidence of this. The defendant also infers some kind of leaning angle of the Stobie pole but again there is no evidence of this. The defendant relies upon the public complaint of Mr Bowden about the state of the Stobie pole but I could not rely upon the evidence of Mr Bowden. The defendant also relies upon the photos tendered as exhibits to infer that the Stobie pole may well have collapsed itself and struck the driver behind. I find that there is no evidence of this. The photos do assist me in finding that the truck driver did not collide with the Stobie pole at the base of the Stobie pole. Damage to the truck is located to the left-hand side of the truck. The truck in all other aspects remained unscathed following the collision.
In the absence of more substantial evidence, I invited both parties at the conclusion of the trial hearing to avail themselves of an adjournment to enable experts to be called. The parties preferred to proceed with the evidence provided to the Court.
I conclude that the weight of the evidence was not enough for me to find for either the plaintiff or the defendant. The plaintiff has not discharged the onus on the balance of probability in either trespass and/or negligence. The defendant has not discharged the onus on the balance of probability in either nuisance and/or negligence.
In the circumstances, I dismiss both the plaintiff’s claim and the defendant’s counterclaim. With respect to the costs of the trial hearing, each party is to bear their own costs save for a costs order made on 11 March 2008 in favour of the defendant.
The Appeal
As earlier observed, on appeal the defendant abandoned the contention that the pole had spontaneously collapsed on the truck. It was acknowledged by counsel for the defendant that the plaintiffs’ claim was bound to succeed unless a finding could be made that the pole, including the transformer fixed to the pole, intruded into the roadway so as to cause an obstruction to the defendant’s truck as it travelled north in the left hand lane of North East Road. Accordingly, on the hearing of the appeal, the parties focussed their submissions on the position of the pole.
The plaintiffs submitted that the Magistrate erred in her failure to find that the collision between the truck and the pole was caused by the negligence of the driver. The plaintiffs highlighted suggested errors in the Magistrate’s consideration of the driver’s evidence. In the plaintiffs’ contention the only explanation for the collision consistent with the finding that the pole was not leaning and the acceptance of Mr Youngman’s evidence - that he was veering to the left - was that Mr Youngman travelled too far left and negligently came into contact with the pole.
The plaintiffs also submitted that the Magistrate’s treatment of Mr Perry was unfair. The suggestion that Mr Perry’s evidence was self-serving was not put to Mr Perry by the Magistrate or counsel. The suggestion was not raised by the Magistrate with counsel during the course of evidence or during final submissions. The plaintiffs argued that the failure to accord an opportunity to rebut the suggestion that Mr Perry was partisan represented a serious departure from procedural fairness.
The defendant submitted that the Magistrate failed to properly consider the damage and position of the truck. It was said that the Magistrate erred in failing to draw appropriate inferences consequent upon the finding that the defendant’s driver had driven with due care. In the defendant’s contention, this finding, coupled with the particular damage to the truck, was consistent only with the conclusion that the pole was leaning into the road causing an obstruction.
The defendant further contended that the Magistrate’s rejection of Mr Bowden’s evidence in relation to the position of the transformer on the pole also constituted an error. The defendant claimed that this evidence of Mr Bowden, coupled with the finding that Mr Youngman drove “straight” provided a ready explanation for the collision. That is, that the position of the transformer on the pole created an obstruction in the roadway.
Function of Appellate Court
The powers of this Court on the hearing of this appeal are set out in Rule 292 of the Supreme Court Civil Rules 2006 (SA):
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
An appeal by rehearing does not involve a completely fresh hearing by the appellate court of all the evidence. Rather, the court proceeds on the basis of the record and any fresh evidence that it chooses to admit.[3] The present appeal proceeded on the trial evidence; no fresh evidence was admitted.
[3] Fox v Percy (2003) 214 CLR 118 at [22].
The function of the appellate court in circumstances such as these, has been outlined in some detail in a number of authorities.[4] When rehearing a case, the appellate court must be aware of the advantages that the trial judge had in seeing the witnesses and in forming impressions as to credibility on this basis. The appellate court does not have such an advantage. The limitations of an appellate court were highlighted by the High Court in Fox v Percy.[5] Gleeson CJ, Gummow and Kirby JJ in their joint judgment observed:[6]
…[the appellate court] must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[4]    See eg Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349 at 351-352; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.
[5]    Fox v Percy (2003) 214 CLR 118.
[6]    Fox v Percy (2003) 214 CLR 118 at [23]. (footnotes omitted).
However, their Honours observed that despite these limitations, the appeal court may still draw their own inferences and conclusions:[7]
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect".
[7] Fox v Percy (2003) 214 CLR 118 at [24]-[25]. (footnotes omitted).

The court’s ability to draw inferences from the facts had previously been made clear by the majority of the High Court in Warren v Coombes:[8]
In general ... an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
[8] Warren v Coombes (1979) 142 CLR 531 at 551.
This statement was accepted in Fox v Percy, where the Court reiterated that this approach was “not only sound in law, but beneficial in ... operation”.[9]
[9] Fox v Percy (2003) 214 CLR 118 at [25].
Consequently, if the current circumstances warrant a conclusion different from that at which the Magistrate arrived, this Court is not constrained by the perceived limitations in not having observed the relevant witnesses give evidence. The Court has a duty to come to an appropriate conclusion on the consideration of the facts and other materials before the Court. This Court will only order a retrial if it cannot determine the correct judgment for itself.[10]
[10] Fox v Percy (2003) 214 CLR 118.
Procedural Fairness
There were two aspects to Mr Perry’s evidence. He made observations of the pole both generally as he drove past the scene regularly, and also on the specific occasion some two months prior to the collision. He also expressed an opinion as to the structural condition of the pole. The Magistrate accepted that Mr Perry had practical experience as a result of his senior position with the plaintiffs. However, as the Magistrate noted, Mr Perry had no engineering qualifications. As a consequence, the Magistrate rejected his evidence about the structural soundness of the pole, as expert evidence. As the contention that the pole spontaneously collapsed has been abandoned on the appeal, there is no need to further consider the weight, if any, to be attached to Mr Perry’s evidence on this topic.
The Magistrate did not appear to have regard to the other aspect of Mr Perry’s evidence in relation to his observations of the position of the pole, and in particular, his observation that it was not leaning into the roadway and did not cause an obstruction. Presumably, this was a result of the Magistrate’s view that his evidence was self-serving.
It was accepted on appeal by the defendant that the suggestion that Mr Perry was giving self-serving evidence was not put to him in cross-examination by defence counsel, nor was this suggestion the subject of any questions by the Magistrate. It was further accepted that the Magistrate made no reference at all to this topic during the course of the addresses. In these circumstances it is apparent that there was a failure to accord procedural fairness. The Magistrate treated direct evidence on a critical topic - namely whether the pole was leaning - as being of little or no weight. It was submitted that this denial of procedural fairness represented a material error and that as a result, the Magistrate’s decision could not stand.
The rule in Browne v Dunn[11] mandates that if one party desires to discredit the evidence of a witness on a particular topic, the witness should be cross-examined about that topic. This rule was framed by Lord Herschell LC as follows:[12]
My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
The rule operates to provide the witness with an opportunity to explain the inference sought to be drawn by the other party.[13] The rationale behind the rule is the need to have trials conducted in a proper and fair manner.[14]
[11] Browne v Dunn (1894) 6 R 67.
[12] Browne v Dunn (1894) 6 R 67 at 70-71.
[13] Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1.
[14] Reid v Kerr (1974) 9 SASR 367.
The rationale is also relevant to the exercise of the role of a judicial officer. The requirement for procedural fairness was relevantly emphasised by von Doussa J in Meadows v Minister for Immigration and Multicultural Affairs:[15]
… it was, in my opinion, encumbent upon the Tribunal to make it known in plain terms to the appellants that the Tribunal considered that such a serious adverse finding was open. In adversarial proceedings the rule in Browne v Dunn [1983] 6 LR 67 at 70 would require a party who sought such a finding against an opponent to put that possibility to the opponent in cross-examination. Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Browne v Dunn required that the Tribunal, before making a finding of dishonesty that would be destructive of the appellants' case, to give the appellants the opportunity to address that issue in their evidence and in their submissions. In the present case this did not occur.
[15] Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 383.
In WAEJ[16] the Refugee Review Tribunal reasoned that a particular document did not appear to be genuine. The Full Court of the Federal Court held that the Tribunal was required to raise this concern with the applicant, and to provide an opportunity to respond. The Court cited Meadows in observing:[17]
If, in truth, the [Tribunal] did not believe that the document was authentic, the [Tribunal] should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the [Tribunal] to satisfy the [Tribunal] in respect of the document.[18]
[16] WAEJ v Minister for Immigration, Multicultural and Indigenous Affairs[2003] FCAFC 188 at [54].
[17] WAEJ v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 188 at [54].
[18] See: Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 383 per von Doussa J, at 387-388 per Merkel J.
The failure to provide Mr Perry with an opportunity to respond to the suggestion that his evidence was self-serving was manifestly unfair and a departure from the proper conduct of a case. The basis for rejecting Mr Perry’s evidence at trial was unsound, as it was rejected without Mr Perry being accorded an opportunity to respond to the suggestion that his evidence was self-serving. The Magistrate was under an obligation to do so. This obligation was not adequately fulfilled. This amounted to a breach of the natural justice hearing rule.
A Finding contrary to the evidence
The Magistrate, in the course of her reasons, stated: “I accept Mr Youngman’s evidence that he was driving straight prior to the collision occurring”. It may be inferred that the Magistrate was referring to Mr Youngman driving within the left hand lane in a northerly direction, and not veering to his left. The difficulty confronting this finding is that Mr Youngman’s evidence was to the contrary. Mr Youngman in his evidence in chief described his manoeuvre as follows:
Q.After you’d come back after just encroaching on to the middle lane, do you recall where you were positioned in your lane, the far left one.
A.As I was going straight?
Q.Yes.
A.Just right in the middle of the road.
Q.What was the next thing that you noticed.
A.I was just bouncing all over the place.
Q.What happened to you inside the cabin.
A.I hit my head on top of the box in the cabin, like a little container type thing where you put your paperwork and stuff in.
This evidence was clarified in cross-examination when Mr Youngman described his manoeuvre as follows:
Q.So you started to move into the middle lane, all the time checking to make sure there was nothing coming.
A.Yes.
Q.So why didn’t you just move into the middle lane.
A.Because I remembered I needed to go straight ahead as well sort of shortly – further up the road.
Q.So you swerved back into the left-hand lane.
A.I didn’t swerve, I glided back in, yes.
Q.Did you or did you not swerve back into the left-hand lane.
A.Yes.
Q.And it was immediately following that movement that the collision occurred.
A.It wasn’t a swerve, it was just a glide back in.
Q.Isn’t the first thing you remember after moving back into that lane being bounced around the cab.
A.Yes.
Q.Immediately following your movement to the left on the road, the next thing you can remember is being bounced around in the cab as a result of the collision.
A.Yes. I changed gears in between time, then it happened.
Q.I’ll ask you again, I know you said yes before but I’m going to ask you this again. Was the next thing you remember after your movement to the left being bounced around in the cab.
A.Yes.
Mr Youngman described having on a number of prior occasions travelled in his vehicle in the left lane passing the pole without encountering any difficulty. In the course of cross-examination on this topic he stated:
Q.But this is the only occasion that you can recall, isn’t it, when you have seen fit to move your vehicle towards the left as you were passing that pole, correct.
A.Yes.
Q.There’s no other difference between the other times, three or so times a week, when you’ve been past that pole, the only difference on this occasion is that you had happened to have been partly in the middle lane and you moved your vehicle back towards the left immediately before the collision occurred, is that correct.
A.Yes.
The effect of Mr Youngman’s evidence was that the collision with the pole occurred immediately following his manoeuvre to the left from the middle lane to the left lane. The Magistrate was not entitled to find that he was driving straight at the time of the collision. Although Mr Youngman used this expression in evidence in chief, his repeated acknowledgments in cross-examination expressly confirmed that the collision followed immediately on his move to the left.
The position of the stobie pole
The Magistrate reached a conclusion that there was no evidence that the pole was leaning into the roadway. This conclusion was reached without any apparent regard to the evidence of Mr Perry as to his observations. In my view, the evidence before the court justified a positive finding that the pole was not leaning so as to cause an obstruction to traffic.
Mr Perry’s observations that the pole was not leaning, both on his specific examination two months prior to the incident and when driving past regularly, were raised in cross-examination. Mr Perry responded that there was no twist or lean on the pole and reconfirmed that he would have noticed any lean to the pole on his nightly journey home along North East Road.
Q.When you inspected it in July ’06, do you recall there being any twist or lean on the pole.
A. There was no twist or lean on it.
Q.So if I said that someone else had looked at it and thought it was twisted or leaning they’d be wrong if that was July 2006.
A.In my opinion, yes, because I drove that way home from work every night and when you travel in the left-hand lane and there’s a picket fence of poles there, if one’s got a slight lean on it will sure stick out and especially if a person like myself, I mean, I would notice it and it was leaning I’d be doing something about it.
When further pressed to provide an explanation for the collision between the pole and the truck other than that the pole was leaning, Mr Perry stated: “The pole wasn’t leaning out onto the road, so I can only assume driver error”.
There was no suggestion from Mr Youngman that he had made any observations on any occasion of the pole leaning into the roadway. North East Road in the vicinity of the pole carries a heavy volume of north-bound traffic in the three lanes. Many vans and trucks make use of the road. The defendant’s van was a frequent user of the road. There was no suggestion of any other vehicle being obstructed by the pole or its transformer at any time.
In SS Hontestroom v SS Sagaporack,[19] Lord Sumner discussed the power of the court of appeal to reverse a finding of fact made by the trial judge contrary to the evidence of a witness:
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”.
In the circumstances, it is appropriate to find that Mr Youngman was indeed veering slightly left in accordance with the evidence that he provided at trial.
[19] SS Hontestroom v SS Sagaporack [1972] AC 37 at 47 per Lord Sumner, citing Watt or Thomas v Thomas [1947] AC 484.
Reconsideration of the Matter
The primary question to be addressed is whether the pole was intruding into the road so as to obstruct the defendant’s driver’s passage along the road in a manner dangerous to road users. The evidence suggests that it was not.
Mr Perry observed that when he inspected the pole approximately two months before the collision, the pole was not leaning. Although the Magistrate placed limited reliance on Mr Perry’s evidence, this observation was not challenged. In the two months following Mr Perry’s inspection of the pole, no other collision occurred, notwithstanding that semi trailers and other large vehicles daily travelled on the relevant carriageway.
The evidence of Mr Youngman also supports a finding that the pole with any attachments was not leaning into the carriageway so as to cause an obstruction to passing traffic. Mr Youngman noted that he drove on that road at least three times a week and on prior occasions had not observed anything out of the ordinary. It can be assumed that a truck driver with a large cabin would be aware of the vehicle clearance and would be particularly observant as to any potential obstacles. Mr Bowden’s evidence, although not relied upon by the Magistrate, also supports the finding that the pole did not lean into the carriageway. His evidence was that the pole leaned away from the road. Consequently, it may be concluded that the pole was not leaning into the road and causing an obstruction.
The defendant suggests that the only explanation for the lack of impact damage to the front cabin is that the pole or an attachment was obstructing the carriageway, as otherwise the front of the cabin would also have sustained damage. This argument is rejected. It does not follow that the only explanation for the damage to the truck to the exclusion of the cabin, is a collision with a pole leaning into the road. Such damage is consistent with the admitted manoeuvre to the left, which would have been compounded by the camber on the road surface. This sequence of events readily explains the damage to the back of the truck. As a consequence, it is my view that the truck driver’s want of care was the cause of the collision.
In the present case, at issue were the inferences to be drawn from the evidence. In the circumstances, the maxim of res ipsa loquitur has relevance. Although the precise sequence of events leading up to the event may be unclear, in the absence of a finding that the pole was leaning and causing an obstruction, the facts speak for themselves.
The “maxim, rule or doctrine of res ipsa loquitur” was addressed in Government Insurance Office of NSW v Fredrichberg[20] where Barwick CJ summarised the following propositions as being binding upon the courts in Australia:[21]
First, that the so-called "doctrine" is no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant; or perhaps, as it might more accurately, in my opinion, be expressed, where, in the opinion of the judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person. Second, that a case in which this can properly be said should be allowed to go to the jury whether or not there is evidence of specific acts or occurrences which could be found to be negligent but that no presumption of any kind in favour of the plaintiff thereby arises. That the occurrence affords evidence of negligence does not merely not alter the onus which rests on the plaintiff to establish his case on the probabilities to the satisfaction of the jury, but does not give the plaintiff any entrenched or preferred position in relation to the decision by the jury of that question. I quite realize that it may be attractive to the mind to conclude that, because the jury is allowed to draw an inference of negligence from the occurrence for the reason that they are at liberty to think that it was not likely to occur without a want of care on the part of the defendant, the inference of negligence must be drawn by them if the ground upon which it may be drawn is not displaced by other evidence explaining the occurrence. That line of thought seems to me to have found favour with English Courts and to have resulted in the creation by the decisions of those Courts of a presumption of fact in favour of a plaintiff in such circumstances. But this Court has been unable to accept such reasoning and the law is otherwise in Australia. In my opinion, the jury are not bound either to conclude that such an occurrence was unlikely to occur without negligence on the part of a person in the defendant's position or to draw the inference that it did in fact occur in the case before them because of the negligence of the defendant. All that has happened, in my opinion, at the point in the hearing of a case at which the judge rules that there is evidence of negligence on the part of the defendant furnished by the occurrence itself is that the judge is satisfied that a jury would be entitled to conclude that such an occurrence in the ordinary affairs of mankind is not likely to occur without negligence on the part of a person in the situation of the defendant. For the rest, it is a question for the jury whether they think the occurrence unlikely in this sense and, if so, whether in the particular case they will be satisfied that there was in fact relevant negligence.
Similarly, in Nominal Defendant v Haslbauer,[22] Barwick CJ explained:
“… to apply this principle (of res ipsa loquitur) is to do no more than to shift the burden of proof. A prima facie case is assumed to be made out which throws upon him (that is, the defendant) the task of proving that he was not negligent.” …… Needless to say, it was not made, either by Lord Simonds or by the Privy Council, as a statement of law. It ascribes no legal operation to res ipsa loquitur. It simply describes the position in which a defendant finds himself in fact, when confronted by evidence which, if it stands alone at the end of the case, will raise an inference of negligence against him and so will discharge the plaintiff's burden of proof. The position is that the defendant will lose the case unless he adduces evidence which persuades the jury not to infer one of the facts which would be wrapped up in an inference of negligence, namely that the situation of the defendant at the material time possessed particular features and that his conduct in relation to it was less careful and skilful than that which an ordinary person would have considered reasonable in view of those features.
In light of the available evidence, the doctrine of res ipsa loquitur supports the inference that the collision occurred because the driver moved his vehicle too far to the left and came into contact with the pole.
[20] Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403.
[21] Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 413.
[22] Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 464, quoting with approval Swan v Salisbury Construction Co Ltd [1966] 1 WLR 204 at 212.
Conclusion

I allow the appeal. I set aside the orders of the Magistrate. I enter judgment in favour of the plaintiffs in the amount of $7340.61. I dismiss the counterclaim. I will hear the parties as to interest, costs and any further consequential orders.