Collins Transport Group P/L v Kerry Logistics (Australia) P/L - [2006] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLLINS TRANSPORT GROUP P/L v KERRY LOGISTICS (AUSTRALIA) P/L
[2006] SADC 124
Judgment of His Honour Judge Millsteed
9 October 2006
NEGLIGENCE - ACTIONS FOR NEGLIGENCE
Action in negligence – collision between two semi trailers – defendant's semi trailer on the wrong side of the road at the point of impact – driver of defendant’s semi trailer lost control of the vehicle due to a loss of consciousness resulting from a sinus arrest - defence of inevitable accident – plaintiff contended that the driver of the defendant’s semi trailer was negligent before he lost consciousness – plaintiff's argument rejected – judgment for the defendant.
Schellenberg v Tunnel Holdings Pty Ltd (2000) CLR 121; Antoniou v Kitson [1972] 2 SASR 525; Dowsing v Goodwin (1997) 27 MVR 43; Roberts v Ramsbottom (1980) 1 WLR 823; Leahy v Beaumont (1981) 27 SASR 290; Waugh v James K Allan Ltd [1964] 2 Lloyd's Reports 1 HL; Stoeckel v Harpas (1971) 1 SASR 172; Battye & Anor v Shammal FC (SA) [2005] SASC 138; Smith v Lord [1962] SASR 88; Robinson v Glover [1952] NZLR 669; Hall and Others v Foong (1995) 65 SASR 281, considered.

COLLINS TRANSPORT GROUP P/L v KERRY LOGISTICS (AUSTRALIA) P/L
[2006] SADC 124
Introduction

This action for damages arises out of a collision between a semi trailer owned by Collins Transport Group Pty Ltd (“the plaintiff”) and a semi trailer owned by Kerry Logistics (Australia) Pty Ltd (“the defendant”).
The following facts are not in dispute.
At about 12.30pm on Friday 24 October 2004 Mr Terry Wood, the defendant’s employee, was driving on the South Eastern Freeway (“the freeway”) in an easterly direction (towards Murray Bridge) in a Volvo prime mover towing a trailer loaded with a refrigerated container (“the defendant’s semi trailer”). Mr Gregory McDonald, the plaintiff’s employee, was driving on the freeway in the opposite direction in a Kenworth prime mover towing two refrigerated vans (“the plaintiff’s semi trailer”).
At the point of collision, the carriageways for east and west bound traffic were separated by a median strip approximately 20 metres wide. Each carriageway was divided into two lanes. An emergency or stopping lane was situated on each side of the freeway. The defendant’s semi trailer left the carriageway for east bound traffic, crossed over the median strip and collided with the plaintiff’s oncoming semi trailer. The collision occurred approximately one kilometre west of the turn off to Murray Bridge and resulted in extensive damage to both semi trailers. Fortunately, both drivers escaped serious injury.
The plaintiff contends that the collision and consequent loss to the plaintiff was caused by the negligence of Mr Wood for which the defendant is vicariously liable, by reason of the employment relationship, and claims damages in the sum of $70,074. The defendant has pleaded inevitable accident. The defendant’s case is that prior to the collision, Mr Wood lost consciousness due to a cardiac event and from that moment was incapable of controlling the semi trailer through no fault of his own.
The defendant accepted that the circumstances of the collision would, in the absence of an explanation, entitle the plaintiff to claim the damages. The parties agreed that the defendant should present its case first. The defendant called Mr Wood and Professor John Horowitz, Director of the Cardiology Unit at the Queen Elizabeth Hospital (the “QEH”). At the close of the defendant’s case the plaintiff presented no evidence.
It is necessary to canvass the evidence of Mr Wood’s driving prior to the collision and the medical evidence relating to his condition.
Mr Wood
The defendant conducted a warehousing and transportation business. Mr Wood was employed by the defendant principally as a storeman but was occasionally required to drive semi trailers. He was 49 years old at the time of the accident. He had no history of cardiac problems.
On 24 October 2003 he commenced work at 7am. A short while after he commenced work he drove from the defendant’s depot at Gillman to Outer Harbor to perform a job. Later that morning he was directed to collect meat from the abattoirs at Murray Bridge. He had not experienced any symptoms of illness or tiredness[1] before he left for Murray Bridge.
[1] Mr Wood gave evidence that he slept well the night before.
He drove towards Murray Bridge on the freeway. It was a “warmish” day, however, the cabin of the prime mover was airconditioned. During the trip he felt “a bit sickish and squeamish” and pulled over to the side of the freeway. In cross-examination he said that he also felt “lightheaded and dizzy” and believed he was going to vomit. He could not say where he stopped, save that it was at some point after having passed through the Adelaide Hills. After stopping, Mr Wood alighted from the semi trailer to get some fresh air. He walked around the semi trailer and inspected its tyres. He then felt as “good as gold” and resumed driving.
Mr Wood’s last memory before the accident was driving along the freeway towards Murray Bridge at about 90kph in the left hand lane. The speed limit was 100kph. He could not say how far he was from the scene of the accident at the time. His next memory was regaining consciousness inside the cabin of the prime mover after the collision. He was removed from the prime mover and placed in an ambulance. He was then conveyed to the Murray Bridge Hospital.
I accept Mr Wood’s evidence. In my opinion he was a witness of truth. I am also satisfied that he gave an accurate account of the relevant events as far as he could remember them. I will discuss the significance of aspects of his evidence later.
Medical evidence
Professor Horowitz gave evidence of the medical treatment that Mr Wood received following his hospitalisation. In the course of his evidence, Professor Horowitz referred to the contents of the QEH file relating to Mr Wood[2]. His oral evidence was supplemented by the tender of three reports[3] prepared by him in relation to this matter.
[2] The parties agreed that I should treat the contents of the QEH file read into the transcript on the same footing as the contents of a business record tendered pursuant to s 45 A of the Evidence Act 1929
[3] Reports dated 10 December 2003 and 7 June 2004 - Exhibit D4; Report dated 7 June 2004 -
Exhibit P2.
The following is a summary of his evidence.
At about 1.30pm on 24 October 2003 Mr Wood was admitted to the Murray Bridge Hospital where he spent the night. He was treated for minor cuts and abrasions. In the course of his stay he experienced two episodes of lightheadedness which caused staff to suspect cardiac rhythm disturbance.
On 25 October 2003 he was transferred to the Cardiology Unit of the QEH for investigation of possible cardiac malfunction and placed under the care of Professor Horowitz.
At the time of Mr Wood’s admission to the QEH he was examined by Dr S Rajenderan, a Senior Registrar in Cardiology. Dr Rajenderan recorded in Mr Wood’s case notes that he gave her the following history:
[W]hile driving [he] felt light headed and stopped his truck. He took a walk and felt better; he started driving again but his next recollection [was] following the car accident. In retrospect he had a period of lightheadedness on the previous day.
In cross-examination, Mr Wood said that he could not remember experiencing lightheadedness the day before the accident or telling staff at the QEH that he had had such an experience. I am satisfied that Mr Wood made the statement attributed to him in the case notes and that he in fact experienced lightheadedness on 23 October 2003. I find that he honestly could not recall those events.
Professor Horowitz first saw Mr Wood in the Cardiology Unit on 26 October 2003. During the preceding 12 hours Mr Wood had continuous Electrocardiograph (ECG) monitoring. The monitoring revealed periods of sinus arrest and bradycardia. No other abnormalities were detected. Professor Horowitz concluded that Mr Wood’s loss of consciousness before the collision and the symptoms of lightheadedness which he had experienced, before and after the accident, were due to falls in blood pressure resulting from sinus arrest.
On 29 October 2003 a permanent pacemaker was implanted in Mr Wood by Dr C. Zeitz. Mr Wood was discharged from hospital the following day. A later examination on 19 November 2003 established that he had experienced no further symptoms and was fit to return to work.
Professor Horowitz’s diagnosis
It is necessary to discuss in more detail Professor Horowitz’s opinion that Mr Wood suffered a loss of consciousness due to sinus arrest.
Professor Horowitz explained that the sinoatrial node (sinus node) is the heart’s endogenous pacemaker. The sinus node is located in the right atrium of the heart and triggers electrical impulses which initiate cardiac rhythm or heartbeat. Other parts of the heart, including the ventrical, emit electrical impulses. They are capable of assuming the role of pacemaker when there is a cessation of sinus node activity (sinus arrest) but fire electrical impulses at a slower rate. Occasionally, these secondary pacemakers fail to take over at all.
An episode of sinus arrest may result in a slowing of the heart rate (bradycardia) and a consequent fall in blood pressure and diminished blood supply to the brain. Such an event may be caused by degeneration of the sinus node (sinus node disease) but may also be triggered by over stimulation of the vagus nerve (vasovagal stimulation). The vagus nerve which is located at the base of the brain is responsible for fine tuning blood pressure. Vasovagal stimulation may occur in response to heat, immersion, trauma, pain and stress and produce symptoms of nausea, dizziness, lightheadedness, near loss of consciousness and loss of consciousness (syncope).
In the present case Professor Horowitz considered that the symptoms Mr Wood experienced on 23 October 2003 (lightheadedness) and on 24 October 2003 (nausea and lightheadedness before the collision and lightheadedness at the Murray Bridge Hospital) involved periods of sinus arrest due to intermittent vasovagal stimulation. He was unable to identify the cause or causes of the vasovagal events.
Professor Horowitz conceded that the episodes of sinus arrest may have been due to sinus node disease but considered that vasovagal stimulation was the more likely cause because it is rare for a person of Mr Wood’s age to suffer sinus node disease. It is a condition usually found in older people. Professor Horowitz further explained that the question of whether vasovagal stimulation or sinus node disease was the cause of Mr Wood’s syncope was not a matter of significance because the two conditions produce substantially the same symptoms.
Duration of symptoms
An important aspect of this case concerns the duration of symptoms before the onset of syncope.
Professor Horowitz addressed this issue in his report of 4 January 2006[4] which was compiled in response to questions put to him by the defendant’s solicitor.
[4] Exhibit D4
He stated:
Question three relates to the period of time which is required for a patient to lose consciousness. This assumes that there had been a total and abrupt cessation of effective cardiac output, for example associate with sinus arrest. First let me say that this would not necessarily been (sic) the case. In patients with sinus arrest, there may be an “escape rhythm” at a considerably slower rate. However, in my experience in Cardiology, I have seen many patients in whom there has been complete cessation of cardiac output remain conscious for up to ten seconds. Essentially, therefore, I agree with the opinion from the medical literature quoted by Dr Hetzel. For example, patients suffering cardiac arrest during cardiac catheterisation frequently retain consciousness for up to ten seconds despite the documentation of ventricular fibrillation, which would definitely be associated with cessation of forward cardiac output. As a rule of thumb, I would believe that syncope would occur somewhere between five and ten seconds after cessation of forward cardiac output. The duration of symptoms prior to the onset of syncope might have been anything between zero and three seconds.
(my underlining)
In his report Professor Horowitz went on to point out that the “area is not one of precise medical science for obvious ethical reasons”.
In examination in chief Professor Horowitz reiterated the opinions expressed in his report of 4 January 2006 and pointed out that they were based on the assumption of a cessation of effective cardiac output. He said:[5]
Yes, that’s making the assumption that the patient’s blood pressure was plummeting, that he was going from having a heart rate of 60 or 70 to having a heart rate of zero, so that blood flow to the brain was just dropping catastrophically. Yes, then if that were the case, then there would have been very little warning.
[5] Transcript (T) 64
In response to a suggestion by Mr Crocker, counsel for the defendant, that Mr Wood’s loss of consciousness may have been almost instantaneous Professor Horowitz replied:[6]
But symptoms could have been going anything up to three minutes really. It is not unusual for vasodepressive episodes to last for a long while and for a patient never to quite lose consciousness, to have plenty of time to sit down or lie down. If a patient is having - if we do this on a tilt table, which is the standard diagnostic test, the patient who is being tilted, if he happens to lose consciousness will do so usually around ten seconds after the abrupt fall in blood pressure. But that’s just the rule of thumb. So I guess the most common thing is around ten seconds, but there’s a wide range from probably a lot less through to never losing consciousness at all.
[6] T 64
In cross examination Professor Horowitz explained that he was not in a position to say whether or not Mr Wood suffered an abrupt cessation of cardiac output but emphasised that even in a case where a patient suffers a reduced heart rate due to vasovagal stimulation unconsciousness may occur without warning:[7]
QBut on this occasion you do not believe there has been any abrupt cessation of any cardiac output.
AI have no way of knowing what his rate would have been, but if a patient has a period of sinus arrest, all that can be stated definitively is the blood pressure will drop and the resulted heart rate will be slower than the one that preceded it. The usual thing is that a heart rate of 60 is replaced by a heart rate of 35, but there is a wide variety of that. Occasionally there is a period of time with no beat at all for a little while.
QIn the case of a reduced heart rate, the loss of effective blood supply to the brain occurs over a longer period of time than in the case of –
AMay I remind you, though, with vagal stimulation, there is (sic) two things that occur. Not only does the heart rate drop but also the blood vessels open up, so there is (sic) two reasons why the blood pressure drops. It is not just a fall in heart rate, it is also a lowering in the resistance to the vessels, so blood pressure is adversely affected in that way. So, let me come back to the schoolyard again: very few of these kids will have had zero heart rate and yet they drop without warning[8].
[7] T 70-74
[8] Earlier in his evidence Professor Horowitz explained the phenomena of vasovagal stimulation by reference to children fainting when asked to stand for lengthy periods: T 63-64.
Later in cross examination Professor Horowitz agreed that it was likely Mr Wood experienced symptoms before the onset of syncope but emphasised that he could not be sure:[9]
[9] T 71-74
QMr Wood reported on more than one occasion symptomatology without losing consciousness.
AYes.
QIn your opinion, is it not more likely than not, even though Mr Wood cannot now recall it, that he did experience some symptomatology before he became unconscious.
AThat certainly is quite likely, yes, but of course I have no way of being sure.
QI understand. Unfortunately now we move away from medical science into ponderable, but I have to ask you these questions for the Court.
ASure.
QIf he did suffer symptoms, then those symptoms, on your previous evidence, could have gone on for three minutes at the outside and you probably don’t think that’s likely.
ANo, the longer the symptoms, the less likely it is the patient will actually lose consciousness because the more likely it is the patient will do something about it.
QBut in all likelihood he had much more warning than he would have had had he suffered a complete cessation of what you call cardiac output.
AYes, I mean, obviously those patients who lose consciousness and claim they do it without any symptoms presumably are the ones where the heart rate drops the most and the blood pressure drops the most, but that’s just, as we have already said, guesswork.
QIt’s just been suggested to me too that even some of those who fall over and later report not having symptoms may have had them but not been able to remember them.
AYes, of course, although – no, that’s not really the case – that’s less likely to be the case among the population who have actually had a formal diagnosis of vasovagal because these people actually live in dread of falling over, so we are talking about a very small group of people who have this problem recurrently and they know perfectly well that, if they start getting dizzy, they sit down fast, you know. They are worried, for example, very worried about driving cars; they have all been counselled about this, so by and large these people have been sensitised and even among this group there are occasionally episodes where they claim – again, they might not be telling me the truth, but they claim, and as I say, these are paranoid individuals about this, that they have had – every now and then I see one of them who says ‘I just fell over without any warning this time’.
QDrawing all of that together in the case of Mr Wood, are you prepared to say that it is more likely than not that Mr Wood experienced some symptoms for more than 15 seconds prior to becoming unconscious.
AWhat I would say, if I were to say what is the balance of probability in my experience, the balance of probability is that if we could have interrogated him two seconds before he lost consciousness and said ‘Do you feel perfectly okay?’, he would have said ‘I actually feel a bit funny’. Right. Now, how long he would have been aware of that and to what intense – how much of that was in the forefront of his mind while he was driving, that would be guesswork, but I would say that two seconds before, three seconds before he would have probably felt funny. Let me give you an anecdote. I remember when I was a training cardiologist, I saw a patient with a heart attack one night in the coronary care unit and I was talking to the patient and suddenly I heard the heavy footsteps of the night nurse saying ‘Cardiac arrest, cardiac arrest’ and I said ‘Nonsense, I am talking to the patient’ and at that point the patient said “I think I am going to fai…,” so that was a complete cardiac arrest and so, in that circumstance, the patient had perhaps three seconds. I feel very uncomfortable giving this testimony because it is absolutely guesswork, but if you say – if we were able to bring the issue of dizziness to the forefront of the patient’s consciousness just before he actually crashed his car, my guess is a few seconds, somewhere in the two to five range, but that really is a guess. If you say “Is it possible he was feeling funny for three minutes”’ I’ve got to say ‘Yes, it’s possible’. But is it possible – you know, I don’t think he – I don’t think I can say any more than that. I don’t see how I can.
QI think the effect of all that is you really don’t know one way or another how much warning Mr Wood might have had –
ANo, other than he says he is not aware of any and, you know we have no way of knowing whether his testimony is completely accurate or not.

I will discuss later the significance of Professor Horowitz’s evidence in relation to the symptoms, and the duration of the symptoms that Mr Wood is likely to have suffered.
Loss of control due to cardiac event
I accept the evidence of Professor Horowitz. He is a highly qualified Cardiologist of great experience.[10] I am satisfied that Mr Wood lost consciousness and control of the defendant’s semi trailer due to a cardiac event. I further accept Professor Horowitz’s opinion that vasovagal stimulation is the most likely cause of Mr Wood’s loss of consciousness. But as he pointed out, the question of whether vasovagal stimulation or sinus node disease were the cause is quite academic because of the similarity of the symptoms produced by these two conditions.
[10] See curriculum vitae of Professor Horowitz - Exhibit D3.
There is, in my view, no sensible explanation for the collision other than syncope due to a cardiac event. Mere inattention on the part of Mr Wood could not explain the radical movements of the defendant’s semi trailer. Furthermore, there is no evidence to suggest that the semi trailer experienced mechanical failure or that Mr Wood was intoxicated or fell asleep at the wheel due to tiredness.
The contentious issues
In his closing address Mr Milazzo, counsel for the plaintiff, did not seriously dispute that Mr Wood lost control of the semi trailer for the reasons advanced by the defendant, but argued that Mr Wood was negligent before the moment he lost consciousness. He submitted that Mr Wood was negligent in two respects. First, he erred in continuing to drive after he had pulled over to the side of the freeway. Mr Milazzo argued that Mr Wood should not have assumed that he was fit to drive simply because his symptoms of nausea and lightheadedness had disappeared. Rather he had a duty to make reasonable enquiries to determine whether he was well enough to get behind the wheel again. Mr Milazzo further argued that Mr Wood probably experienced further symptoms of vasovagal stimulation or sinus node disease after he had resumed driving and before he lost consciousness and that he was negligent in failing to react to those symptoms by stopping or slowing down.
Legal Principles
Before I analyse the merits of the plaintiff’s arguments, I remind myself of the relevant principles of law.
The plaintiff bears the onus of proving negligence on the balance of probabilities.
In a case such as the present, where a motor vehicle ends up on the wrong side of the road, the principle Res Ipsa Loquitur may permit an inference of negligence on the part of the driver to be drawn in the absence of an explanation of the occurrence.[11] However, the principle, has no application in the present case because there is, as I have found, an explanation for the collision namely Mr Wood’s loss of consciousness due to a cardiac event.
[11] Schellenberg v Tunnel Holdings Pty Ltd (2000) CLR 121 per Gleeson CJ, McHugh J at 132.
The critical issue is whether the collision was inevitable by reason of Mr Wood’s loss of consciousness. A defence of inevitable accident amounts to no more than a denial of negligence. In such a case the defendant bears an evidentiary onus to establish those facts upon which the defence is founded but the ultimate burden of proof remains on the plaintiff. Indeed, it is doubtful whether much advantage is gained by the continued use of the expression inevitable accident[12] for if the plaintiff proves that the accident was caused or contributed to by the negligence of the defendant it was not inevitable, and unless he proves that he fails anyhow.[13] It is preferable to put the issue in a more simple way namely whether taking into account the explanation proffered by the defendant the plaintiff has proved negligence.[14]
[12]     Charlesworth and Percy, Negligence, 8th Ed. p 241.
[13]     Antoniou v Kitson [1972] SASR 525per Bray CJ at 528
[14]     The Schwan [1892] p 419 per Lord Greene at 434
The principles governing so called inevitable accident cases are summarised by Mason P in Dowsing v Goodwin:[15]
Negligence law in Australia remains wedded to the fault principle and the requirement that the plaintiff bears the onus of proof. A plea of inevitable accident is simply a denial of negligence. A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident. Since the duty is to take reasonable care, it follows that (in Lord Blackburn’s words) “when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much”. “Not too much” because the reasonable driver is aware of the potential risk of the activity and may be expected to drive “defensively” in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect. Thus, even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible. (footnotes omitted)
[15] (1997) 27 MVR 43 at 45
The authorities cited in support of the last mentioned proposition were Roberts v Ramsbottom[16] and Leahy v Beaumont.[17]
[16] (1980) 1 WLR 823
[17] (1981) 27 SASR 290
Mason P went on to say:[18]
A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care. Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself or herself to be behind the wheel at the time. For some conditions “if (a driver) knew or had reasonable cause to believe that he was subject to blackouts, it would have been an act of negligence to have driven a motor car at all. For other conditions reasonable care would consist of taking reasonable precautions before getting behind the wheel on a particular occasion. The case was fought below on this latter basis. These principles have been applied to cases involving diabetic hypoglycaemia. (footnotes omitted)
[18] (1997) 27 MVR 43 at 46
The critical question is whether the plaintiff has established that the collision was something which Mr Wood could have prevented by the exercise of such care and skill as might reasonably be required of a driver in his situation. When considering this question, it must be remembered that every driver and more particularly the driver of a heavy vehicle, has a serious duty to other road users not to drive if he or she has, or should have, any reasonable ground for thinking that due to illness or otherwise his/her skill or judgment as a driver may be impaired.[19]
[19]
Plaintiff’s pleadings
Before I turn to consider the merits of the plaintiff’s case it is appropriate to deal with Mr Crocker’s submission that the plaintiff should not be allowed to rely upon the first limb of its case because the facts upon which it is founded were not pleaded by the plaintiff. The plaintiff’s pleadings set out the undisputed facts of the collision but do not refer to Mr Wood’s conduct in stopping on the side of the freeway due to illness and then continuing his journey.
The defendant’s argument on this point must be rejected. The issue of Mr Wood pulling over because he felt unwell only arose in the course of the defendant’s case. Even if the plaintiff erred in failing to amend the statement of claim after Mr Wood had given evidence it cannot be said that the defendant has suffered any relevant unfairness. This is not a case where the defendant might have presented its case differently.[20] Mr Wood gave his reasons for stopping and continuing the journey. There is no further evidence that the defendant could have presented on the topic. The justice of the case requires that the plaintiff be allowed to present its case on both grounds.
[20] See generally Battye & Anor v Shammal FC (SA) [2005] SASC 138 per Doyle CJ at [10] - [13]
The first limb of the plaintiff’s argument
The plaintiff has not challenged Mr Wood’s evidence that he resumed driving only after his symptoms of lightheadedness and nausea had disappeared but, as earlier observed, contends that he should not have assumed that he was fit to drive. Instead, he should have made enquiries with a medical practitioner to determine the cause of his symptoms and to ascertain whether he was in fact fit to get behind the wheel again.
I reject this argument.
Mr Wood had no history of cardiac problems. In my view he had no reasonable cause to believe or suspect that the symptoms which he had experienced on the freeway were linked to a cardiac weakness or any other ailment that might produce a sudden loss of consciousness or some other condition that might impair his ability to drive safely.
In my opinion, a reasonable person in Mr Wood’s position would have thought that the symptoms which he had experienced, were the result of some minor condition that had passed and from which he had recovered. I do not believe that a reasonably prudent driver would have sought medical advice before continuing the trip. In reaching this conclusion I have not overlooked that Mr Wood had experienced an episode of lightheadedness the previous day. But there is no evidence to suggest that the previous episode was more than a momentary event or one which significantly affected him.
Smith v Lord [21] is a case with similar features to the present. The defendant suffered a blackout due to cardiac failure and lost control of his car. The defendant had no history of cardiac problems but had experienced episodes of breathlessness during the preceding three days. He was driving to his doctor’s surgery when the blackout occurred.
[21] [1962] SASR 88
On appeal, Mayo J rejected the plaintiff’s contention that the defendant was negligent. He considered that the defendant had no reason to suspect that he had a problem with his heart which might render him incapable of exercising effective control of his vehicle when he commenced his journey. By implication Mayo J considered that the defendant had not acted unreasonably in failing to have the episodes of breathlessness investigated before he drove.
Waugh v James K Allan[22] is another case with similar features. The defendant lost control of a heavy lorry due to a coronary thrombosis and struck a pedestrian. The defendant had a history of gastric attacks but otherwise enjoyed good health. Neither he nor his doctor suspected that he might suffer from thrombosis or any other cause of sudden collapse. A short while before the defendant drove he experienced symptoms (vomiting, sweating profusely and belching) consistent with a gastric attack induced by him having inhaled bone dust. The symptoms were in fact the product of a latent heart condition.
[22] [1964] 2 Lloyd’s LR 1
In his judgment in the Inner House of the Court of Session Lord Clyde, L.P. held (Lord Carmont concurring, Lord Strachan dissenting) that the defendant had not been negligent in driving off. His Lordship stated:
[T]he real question in this case is whether a reasonable man in Gemmell’s position would have considered that his condition was such as to make him a potential danger to other persons in the public street if he drove off. In the light of the evidence it seems to me that Gemmell would quite reasonably have considered that he had suffered one of his gastric attacks brought on by the offensive smell from the cloud of bone dust, and that this would rapidly pass off leaving him quite fit to drive. This view is accepted by the doctors on both sides and seems to me to be reasonable, particularly in the light of Gemmell’s previous experience of gastric attacks.
The plaintiff’s appeal to the House of Lords was rejected.
In my view the symptoms suffered by Mr Wood are no more indicative of cardiac weakness than the several episodes of breathlessness spread out over three days which were experienced by the defendant in Smith v Lord and the debilitating symptoms suffered by the defendant in Waugh.
Similarly, in Robinson v Glover[23] the defendant, while driving, fainted due to an infection of the urinary system and collided with a parked car. The defendant was unaware of the infection but had been unwell for several days before the accident. The symptoms he had endured included fever, headaches and muscle aches and pains but did not involve fainting. On the day of the accident he still felt “hot and peculiar.”
[23] [1952] NZLR 669
Finlay J considered that there was nothing upon which a finding of negligence could be founded. He stated:[24]
In these circumstances, I have some difficulty in conceiving that a reasonably prudent man would, or that the appellant should, have anticipated the possibility of his fainting. I apprehend that any reasonable prudent man would regard fainting as an unusual and totally unexpected culmination of the symptoms of which the appellant was conscious, and I have difficulty in seeing, in consequence, how it can be attributed to him that he should have been aware of the possibility, not to say probability, of unconsciousness overtaking him.
[24] [1952] NZLR 669 at 672
In my view it can be said with equal force, that any reasonable prudent man would regard a loss of consciousness as an unusual and totally unexpected culmination of the symptoms which Mr Wood had experienced on the freeway and the previous day.
Every case must, of course, be determined by an application of principle to the particular facts of the case. Nevertheless, in reaching the conclusion that Mr Wood did not act unreasonably in driving after he had recovered from his symptoms I have been fortified by the approach taken in the cases to which I have just referred.
Mr Milazzo placed reliance on the decision in Roberts v Ramsbottom.[25]
[25] [1980] 1 WLR 823
In that case the defendant was unaware that he had suffered a stroke a short while before he left his home to drive to a nearby town. As a result of the stroke he suffered impaired or clouded consciousness and experienced difficulties with co-ordination. In the course of the trip he suddenly experienced feelings of queerness and collided with a stationary van. He continued driving and knocked a boy off his bicycle. He then collided with the plaintiff’s parked car. Due to the stroke, the defendant was at all times unaware that he was unfit to drive. The defendant denied negligence and pleaded that he was acting in a state of automatism and, accordingly, was not responsible for his actions.
Neill J rejected the defendant’s argument. He made the point that the defendant’s standard of care was to be assessed objectively ignoring any mental incapacity (falling short of automatism):[26]
Every driver, including a learner driver:
must drive in as good a manner as a driver of skill, experience and care, who is sound in mind and limb, who makes no errors of judgment, has good eyesight and hearing and is free from any infirmity. See Lord Denning M.R. in Nettleship v. Weston [1971] 2 Q. B. 691, 699.
[26] [1980] 1 WLR 823 at 832 H, 833 A
He held that the defendant’s condition did not amount to automatism because he had not experienced a total loss of consciousness.
He stated:[27]
I am satisfied that in a civil action a similar approach should be adopted. The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable. His position is the same as a driver who is old or infirm. In my judgment unless the facts establish what the law recognises as automatism the driver cannot avoid liability on the basis that owing to some malfunction of the brain his consciousness was impaired. Mr Stannard put the matter accurately, as I see it, when he said: ‘One cannot accept as exculpation anything less than total loss of consciousness’.
[27] [1980] 1 WLR 823 at 832 F-G
Neill J considered that the defendant was guilty of negligence in any event because he continued to drive with awareness of his disabling symptoms. He said:[28]
I also consider that the plaintiffs would be entitled to succeed, if necessary, on the alternative ground put forward, that is, that the defendant continued to drive when he was unfit to do so and when he should have been aware of his unfitness. He was aware that he had been feeling queer and had hit the van. Owing to his mental state he was unable to appreciate that he should have stopped. As I have said, and I repeat, the defendant was in no way morally to blame, but that is irrelevant to the question of legal liability in this case. An impairment of judgment does not provide a defence. I consider that the defendant was in law guilty of negligence in continuing to drive because he was aware of his disabling symptoms and of his first collision even though he was not able to appreciate their proper significance.
[28] [1980] 1 WLR 823 at 832 H, 833 A-B
In my opinion Roberts does not assist the plaintiff. The judgment of Neill J makes two key points. The first is that a defendant cannot escape liability on the ground of automatism unless he had experienced a total loss of consciousness. That principle is not in issue in the present case. It is not in dispute that Mr Wood was an automaton from the moment he lost consciousness. The pivotal issue is whether he was negligent before he lost consciousness.
The second point made by Neill J is that a defendant cannot escape liability because he was unaware due to some mental infirmity that he was unfit to drive. The reasonable man is a person of sound mind. That principle is not in issue either. There is no suggestion that Mr Wood due to mental infirmity failed to appreciate that he was unfit to drive or was unaware of certain symptoms of which a reasonable man would have been aware.
In a case such as the present it is important that the court not allow itself to be deflected from an appropriate analysis of the issue of negligence by knowledge of a defendant driver’s latent medical condition. The issue of negligence must be determined upon a consideration of the symptoms which the driver knew or had reasonable cause to believe he was suffering from at the relevant time.
As Debelle J remarked in Hall and Others v Foong (albeit in a different context):[29]
It is important that the court does not allow hindsight to insinuate itself into its reasoning. Hindsight is no doubt useful in other contexts but, as a general rule it must be avoided when determining liability. As Megarry J observed in Duchess of Argyll v Beuselink [1972] 2 Lloyds LR 172 at 185:
In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence. The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect.
[29] (1995) 65 SASR 281 at 304.
As I have said, in my view, it cannot be said that a reasonable man would not have driven in the circumstances.
The second limb of the plaintiff’s argument
I turn to the plaintiff’s contention that Mr Wood probably experienced further symptoms of vasovagal stimulation or sinus node disease after he had resumed driving and that he was negligent in failing to respond to the symptoms by stopping or slowing down.
I accept that a reasonably prudent driver would have pulled over to the side of the freeway if he had experienced further significant symptoms of lightheadedness and/or nausea after he had resumed his journey. The critical issue is whether it is more probable than not that Mr Wood suffered such further symptoms and, if the answer is in the affirmative, whether it is more probable than not that he had sufficient time to react to the symptoms in a manner that could have averted the accident.

I am satisfied, on balance, that Mr Wood suffered some symptomatology before he lost consciousness and that Mr Wood has no memory of that event. However, I am not satisfied that the plaintiff has proved that Mr Wood would have had sufficient opportunity to reasonably respond to the situation. In my view this finding accords with the evidence of Professor Horowitz.
In his closing address and supplementary written submissions, Mr Milazzo placed considerable emphasis on Professor Horowitz’s evidence that a patient will usually lose consciousness around 10 seconds after an abrupt fall in blood pressure.[30] He argued that that was more than ample time for Mr Wood to have responded by pulling over to the side of the freeway or slowing down. He sought to derive support from Leahy v Beaumont[31] in which the Full Court held that 6-8 seconds was sufficient time for the defendant to have stopped, or to have at least reduced the speed of, his slow moving vehicle after he began to experience an episode of violent coughing.
[30] See evidence set out in [31] of this judgment
[31] (1981) 27 SASR 291
This argument, in my view, has taken Professor Horowitz’s “10 second evidence” out of context. There is a distinction between the time involved in a patient losing consciousness after a cessation of cardiac output or a reduction of cardiac output, as the case maybe, and the time involved in a patient losing consciousness after the onset of symptoms associated with a cessation or reduction of cardiac output.
The distinction is made clear in Exhibit D4, where Professor Horowitz’s states:
As a rule of thumb, I would believe that syncope would occur somewhere between five and ten seconds after cessation of forward cardiac output. The duration of symptoms prior to the onset of syncope might have been anything between zero and three seconds.
In my view the critical aspect of Professor Horowitz’s evidence is a passage in cross examination quoted earlier and in particular the following:[32]
QDrawing all of that together in the case of Mr Wood, are you prepared to say that it is more likely than not that Mr Wood experienced some symptoms for more than 15 seconds prior to becoming unconscious.
AWhat I would say, if I were to say what is the balance of probability in my experience, the balance of probability is that if we could have interrogated him two seconds before he lost consciousness and said ‘Do you feel perfectly okay?’ he would have said ‘I actually feel a bit funny’. Right. Now, how long he would have been aware of that and to what intense – how much of that was in the forefront of his mind while he was driving, that would be guesswork, but I would say that two seconds before, three seconds before he would have probably felt funny.
[32] See page 7 [33] of this judgment.
In my opinion it is clear that Professor Horowitz was of the view that, on balance, Mr Wood would have experienced a sensation of feeling funny for about two to three seconds before syncope. Furthermore, any opinion about the intensity of Mr Wood’s symptoms and whether they may have lasted for more than two to three seconds before syncope would be based on pure guesswork.
As earlier stated I accept Professor Horowitz’s evidence. I find that the plaintiff has failed to prove that Mr Wood had more than a few seconds to respond to the symptoms that he is likely to have experienced. Symptoms of such short duration (which may have been of minor intensity) may serve to explain Mr Wood’s failure to recall them.
Mr Wood’s last memory, before he lost consciousness, was driving in the left hand lane at about 90kph. I do not accept that he could have stopped his heavy vehicle in a period of 2-3 seconds. Indeed, the only evidence put before me as to the minimum time that it would have taken for Mr Wood to have safely stopped the defendant’s semi trailer when travelling at a speed of about 90kph, was his estimate of 15-20 seconds. Furthermore, there is no evidence to suggest that in a period of 2-3 seconds, Mr Wood could have sufficiently slowed the semi trailer to a speed that would probably have averted the accident. Indeed, it is not clear how much time and what reduction of speed would have been required to achieve that result. Even if I had accepted Mr Milazzo’s “10 second argument” it cannot be said that it is more probable than not that Mr Wood had sufficient time to avert the accident.
I find that the plaintiff has failed to prove that Mr Wood had sufficient time to safely stop or reduce the defendant’s semi trailer to a speed that would have averted the accident.
Accordingly, I reject the second limb of the plaintiff’s argument.
I should also point out that there is a paucity of evidence about the traffic conditions at the time of the collision. The plaintiff put no evidence before me as to the volume of traffic travelling towards Murray Bridge and the position of other vehicles (if any) in relation to the defendant’s semi trailer. Even if Mr Wood had more than a few seconds to stop or slow down, it is not clear whether that could have been achieved without comprising the safety of motorists around him.
Conclusion
The plaintiff has failed to prove that Mr Wood drove negligently. Accordingly judgment is entered in favour of the defendant. I will hear the parties as to costs.

Waugh v James K Allan [1964] 2 Lloyd’s Reports 1 HL; see generally Leahy v Beaumont (1981)

27 SASR 290 at 294; Stoeckel v Harpas (1971) 1 SASR 172