Downie v Spencer

Case [2019] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

Downie & Anor v Spencer [2019] QCA 212

PARTIES:

NOEL STANLEY DOWNIE
(first appellant)
AAI LIMITED
ABN 48 005 297 807
(second appellant)
v
CHRISTOPHER JOHN SPENCER
(respondent)

FILE NO/S:

Appeal No 4993 of 2019
SC No 12677 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Rockhampton – [2019] QSC 98 (Crow J)

DELIVERED ON:

11 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2019

JUDGE:

Morrison and Philippides JJA and Boddice J

ORDERS:

1.   The appeal be dismissed.

2.   The parties have leave to deliver any submissions on costs, within seven days.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the respondent sustained personal injuries after he lost control of his motorcycle whilst travelling along a highway – where the respondent alleged that he lost control of his motorcycle as a consequence of having to avoid a collision with a vehicle being driven negligently by the first appellant – where the respondent alleged the second respondent was liable as the insurer – where the respondent filed a claim and statement of claim claiming damages for personal injuries from both appellants – where the primary judge gave judgment in favour of the respondent finding that his personal injuries were occasioned by the negligence of the first appellant – where the primary judge also found the respondent was not contributorily negligent – where the appellants appeal those findings – whether the findings are inconsistent with the evidence and compelling inferences to be drawn from that evidence

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Lee v Lee (2019) 93 ALJR 993; [2019] HCA 28, cited
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited

COUNSEL:

G W Diehm QC, with K J Kluss, for the appellant
B Walker SC, with P L Feely, for the respondent

SOLICITORS:

McConaghy Lawyers for the appellant
McInnes Wilson Lawyers for the respondent

  1. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.

  2. PHILIPPIDES JA:  I agree with the orders proposed by Boddice J for the reasons given by his Honour.

  3. BODDICE J:  On 21 February 2013, the respondent sustained personal injuries after he lost control of his motorcycle whilst travelling along the Burnett Highway near Eidsvold in the State of Queensland (“the incident”).

  4. On 6 December 2016, the respondent filed a claim and statement of claim claiming damages for personal injuries from the first and second appellants in respect of the incident.  The respondent alleged that he lost control of his motorcycle as a consequence of having to avoid a collision with a Kenworth T401 truck and dog trailer being driven negligently by the first appellant.  The respondent alleged the second respondent was liable as the insurer of that truck and trailer.

  5. On 12…

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Details
AGLC
Downie v Spencer [2019] QCA 212
Case
[2019] QCA 212
Decision Date

CaseChat Overview and Summary

In the case of Downie v Spencer, the Court of Appeal was required to determine whether the findings of the primary judge were inconsistent with the evidence and compelling inferences from that evidence. The respondent, an experienced motorcyclist, had sustained personal injuries when he lost control of his motorcycle while overtaking a truck driven by the first appellant. The respondent claimed that the loss of control was due to the truck driver's negligent actions, specifically failing to activate the right indicators before turning into a private driveway. The primary judge found in favour of the respondent, ruling that the first appellant was negligent and that the respondent was not contributorily negligent. The appellants challenged these findings, arguing that the respondent lost control due to his own negligence.

The Court of Appeal conducted a thorough review of the evidence and the primary judge's reasoning. The court acknowledged that factual findings, particularly those based on witness credibility, are generally not to be interfered with unless they are glaringly improbable or contrary to compelling inferences. The Court found that the primary judge's findings were neither glaringly improbable nor contrary to compelling inferences. The first appellant's evidence was inconsistent and suggested a reconstruction based on past practice rather than actual recollection. The Court concluded that the primary judge's findings were consistent with the evidence and that there was no error in law or fact.

Consequently, the appeal was dismissed, and the Court ordered that the appeal be dismissed and that the parties have leave to deliver submissions on costs within seven days. The ratio of the case is that the Court will not interfere with the primary judge's factual findings unless they are glaringly improbable or contrary to compelling inferences, and such findings were not present in this case.

Orders

Orders of the court

1. The appeal be dismissed.

2. The parties have leave to deliver any submissions on costs, within seven days.

Background

Background to the litigation

The appellants appeal those findings. At issue is whether the findings are inconsistent with the evidence and compelling inferences to be drawn from that evidence.Background The respondent is a 51 year old electrical tradesman. He was aged 45 at the time of the incident. He was an experienced motorcycle rider. The first appellant is a truck driver with over 45 years’ experience, driving all types of trucks from body trucks to B doubles. At the time of the incident he was working for a fuel company delivering fuel in central Queensland. On the day of the incident he was driving a loaded fuel truck with an attached dog trailer. The incident occurred on a straight stretch of road adjacent to the entrance to a private property being operated as a fuel depot. The respondent came to rest in a drain located on the side of the road near the driveway into that private property. At trial, it was not in dispute that at the time of the incident the first appellant was intending to turn right from the highway into the driveway entrance of that private property. It was also not in dispute that the respondent came to rest in the drain as a consequence of having lost control of his motorcycle. At issue was whether the respondent lost control of his motorcycle when the first appellant commenced to enter the right-hand lane of the highway without indicating his intention to do so, or whether the respondent lost control of his motorcycle as a consequence of travelling at excessive speed and over-breaking when he realised the first appellant had his indicators on, signalling his intention to turn right.Pleadings The respondent pleaded the following version of the incident in the Statement of Claim:“At or about 7.45am on 21 February 2013 (“date of accident”):(a)The Kenworth T401 was travelling in a southerly direction on the Burnett Highway near Eidsvold;(b)The Yamaha motorcycle was travelling in a southerly direction along the Burnett Highway behind the Kenworth T401;(c)As he came up behind the Kenworth T401 the Plaintiff moved towards the centre line and checked the path ahead to determine whether it was safe to overtake the Kenworth T401;(d)There were no vehicles travelling the Northbound Lane;(e)As it appeared to be safe to overtake, the Plaintiff activated the right indicator on the Yamaha motorcycle and commenced to overtake the Kenworth T401 and trailer on the right hand side;(f)As the Plaintiff commenced to overtake the Kenworth T401 and trailer, the First Defendant caused the Kenworth to start a right hand turn toward a private driveway on the western side of the Burnett Highway;(g)After observing the Kenworth T401 and trailer starting to turn to the right, the Plaintiff braked heavily to avoid a collision with the Kenworth T401 and lost control of the Yamaha motorcycle;(h)The Yamaha motorcycle skidded off the right hand side of the road and landed in a drain on the side of the road and the Plaintiff suffered personal injuries.” By way of defence, the appellants admitted each of the allegations in (a), (b), (d) and (h) in the preceding paragraph but did not admit paragraphs (c), (e) and (g). The appellants denied paragraph (f) stating:“Deny that the First Defendant commenced a right turn as the Plaintiff commenced the subject overtaking manoeuvre on the grounds that the First Defendant had not commenced the right turn (but had indicated an intention to do so) prior to the Plaintiff attempting the overtaking manoeuvre. The Defendants admit that the First Defendant’s intention was to execute a right-hand turn into a private driveway on the Burnett Highway.”

Evidence

Evidence Before The Court

The appellants denied that the first appellant was negligent, alleging:(a)The First Defendant activated the right indicators of the Kenworth T401 prior to commencing the right-hand turn;(b)The First Defendant kept a proper lookout for vehicles behind the Kenworth T401 prior to commencing the right-hand turn;(c)The First Defendant turned into private property only when satisfied that it was safe to do so and after the Plaintiff’s Yamaha motorcycle had skidded off the right-hand side of the road and landed in the drain on the side of the road;(d)The First Defendant exercised proper care and control in the driving and management of the Kenworth T401 and complied with the relevant road rules at all times;(e)The accident was caused solely by the negligence of the Plaintiff particulars of which are as follows:(i)Attempting an overtaking manoeuvre in circumstances where it was unsafe to do so;(ii)Travelling at a speed which was excessive in the circumstances;(iii)Failing to observe the right indicators displayed by the Kenworth T401;(iv)Failing to maintain control or any proper control of the Yamaha motorcycle.Evidence The respondent gave evidence that on the day of the incident he was travelling from his home to his place of employment. He had left home about 10 minutes later than he wanted to leave and travelled down the Burnett Highway, taking his usual route. There was very little traffic. He estimated he had passed one other vehicle. As the respondent came around a bend, approaching Eidsvold, he noticed a truck about 100 to 200 metres ahead. He could not estimate its speed. He described events thereafter:“Came up behind the truck for split-second, I guess, slowed down, I didn’t have to brake, came up behind it for a split-second, noticed no brakes or indicators on the truck, put my indicator on before looking – because I had pulled behind the truck because there’s a dip just down the road which can potentially hide a car, so thus me not overtaking the truck straightaway. So I briefly pulled in behind the truck, saw that there was no cars in that dip, put my indicator on, proceeded to – accelerated – proceeded to overtake the truck. As I got just before the back of the truck, about level with the wheels of the dog on the truck, I noticed that the front of the truck was starting to encroach into my lane as I was overtaking. I look at that split-second to make sure that there was no indicators on, he wasn’t just wandering and then I saw the farmer’s driveway and I thought “Oh my God, this guy is going into this driveway”. That’s when I thought I was going to head straight under the truck, so [I] applied the brakes and tried to steer out of the way because I knew the front of the truck was going to end up right in front of me. At some point, the bike must have fallen over and I must have lost consciousness because I don’t remember anything after that except for getting walked out of the ditch.”[1][1]T1-10/5-10. The respondent confirmed in evidence in chief that his most recent recollection prior to losing control was “looking for indicators on the truck and watching the front of the truck come across the white line in front of me”. He was “confident” he saw those things.[2][2]T1-15/25.

Decision

Reasons for decision

The fact that the respondent estimated the truck and trailer was between 150 and 200 metres down the road as he came around the bend did not undermine the legitimacy of the primary Judge’s observations. Those observations were in reference to an assessment of the reliability and credibility of the first appellant’s accounts of the incident.Conclusion A real review of the evidence as a whole establishes there is good reason to prefer and accept the respondent’s evidence as to the circumstances of the incident, and to reject the version of the incident given by the first appellant. That conclusion supports a finding that the incident and the respondent’s personal injuries were occasioned by the first appellant’s negligence in failing to activate his indicators, in undertaking a turning manoeuvre without first notifying of his intention to do so, and in undertaking a turning manoeuvre when it was unsafe to do so. An acceptance of the respondent’s account as reliable and credible also supports a conclusion that there was no contributory negligence on the part of the respondent. The respondent was attempting to overtake a slow-moving truck on a long, straight stretch of road when, without warning, that truck commenced a manoeuvre to turn right into a private driveway. A consideration of the evidence as a whole, and of the primary Judge’s reasons, establishes there was no error law or fact. The findings made and conclusions reached from those findings were consistent with the evidence and the competing inferences. None of those findings were glaringly improbable or contrary to compelling inferences.Orders I would order:(1)The appeal be dismissed.(2)The parties have leave to deliver any submissions on costs, within seven days.

Ratio Decidendi

Legal Principle Established

The respondent submits that a consideration of the evidence as a whole demonstrates that the primary Judge’s findings of fact were consistent with the evidence. None of those findings or conclusions were “glaringly improbable”. Further, on the basis of those findings, the primary Judge correctly found that there was no contributory negligence.Consideration Determination of this appeal requires this Court to conduct a “real review” of both the evidence at trial and of the primary Judge’s reasons for judgment to determine whether there was error in fact or law.[28] Factual findings likely to have been informed by impressions about credibility and reliability of witnesses as a result of the primary Judge’s benefit of having seen and heard those witnesses give evidence are not to be interfered with, unless they are “glaringly improbable” or “contrary to compelling inferences”.[29][28]Fox v Percy (2003) 214 CLR 118, 126-127 at [25]; Lee v Lee [2019] HCA 28 at [55].[29]Fox v Percy (2003) 214 CLR 118, 128 [29]; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 at [43]. In the present case, the primary Judge’s reasons for judgment contained specific factual findings crucial to a resolution of the issues in dispute. Those factual findings were informed by the primary Judge’s impression of the reliability and credibility of the first appellant and of the respondent as witnesses. A consideration of the evidence as a whole supports a conclusion that those findings were neither glaringly improbable nor contrary to compelling inferences. The first appellant gave conflicting accounts as to the activation of the indicators. In evidence, he proffered, in response to a leading question, an answer, “you apply the right before you turn off probably 200 metres before the …”[30] When asked if he recalled doing so on the day in question the first appellant replied, “Yes”.[31] Such answers suggest reconstruction, based on past common practice, rather than actual recollection.[30]T2-19/1-2.[31]T2-9/4. That suggestion was supported by the version the first appellant gave to police following the incident. That version was that the first appellant had activated his indicators “at least 500 metres” before the entry to the private property.[32] That discrepancy was startling, if the first appellant genuinely had a recollection of the events on the day of the incident.[32]T2-15/43. The first appellant’s explanation for that discrepancy, namely that it was “just a natural thing you put them on when you’re coming down the straight and, like, you’ve got to be careful when you put them on too early because people try and pass you” was itself supportive of a conclusion that the first appellant’s evidence was based on reconstruction, not recollection.[33][33]T2-17-21. This conclusion was further supported by the first appellant’s proffering, in cross-examination, for the first time, that he illuminated his brake lights at least 200 metres before the entry to the private driveway. Again, that version was in the form of usual practice, “you use your brakes at least 200 metres before the turn-off to slow down”.[34][34]T2-17/44-45.