Graham v Jamieson
[1995] QCA 305
•14/07/1995
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 44 of 1995
Brisbane
[L.C. Graham v. M.C. Jamieson]
BETWEEN
LEAH CHRISTINE GRAHAM
(Plaintiff)
Respondent
AND
MERVYN COLIN JAMIESON
(Defendant)
Appellant
McPherson J.A.
Demack J.
Shepherdson J.
Judgment delivered 14/07/1995
Separate concurring reasons by each member of the Court.
APPEAL AND CROSS APPEAL DISMISSED. PARTIES TO BEAR THEIR
RESPECTIVE COSTS OF THE APPEAL
CATCHWORDS: PERSONAL INJURIES - NEGLIGENCE - Appeal against finding of liability and apportionment of damages - credibility of witnesses - whether Trial Judge acted on evidence "inconsistent with fact incontrovertibly established" by the evidence or which was "glaringly improbable" - Devries v. Australian National Railways Commission (1993) 177 CLR 472.
| Counsel: | S. Williams QC with him J. McDougall for the appellant R. Douglas QC with him M.Pope for the respondent |
| Solicitors: | McInnes Wilson Jensen for the appellant |
Connolly Suthers for the respondent
| Hearing date: | 9 June 1995 |
IN THE COURT OF APPEAL
[1995] QCA 305
SUPREME COURT OF QUEENSLAND
Appeal No. 44 of 1995
Brisbane
| Before | McPherson J.A. Demack J. Shepherdson J. |
[Graham v. Jamieson]
BETWEEN
LEAH CHRISTINE GRAHAM
(Plaintiff) Respondent
AND
MERVYN COLIN JAMIESON
(Defendant) Appellant
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 14th day of July 1995
I agree with the reasons of Shepherdson J. for thinking that the appeal and the cross-appeal should be dismissed.
The learned trial judge, who saw and heard the witnesses, was better placed than we to decide which of them was truthful and reliable. He accepted the evidence of Deborah Graham who was present during a conversation with the defendant when the plaintiff was admitted to the Mount Isa hospital. It was to the effect that the defendant had said he was feeling guilty because he had grabbed the steering wheel while the plaintiff was driving.
No reason has been shown why the trial judge should not
have accepted that evidence, which is supported by that of
other witnesses at the trial including the plaintiff herself.
On that footing, the plaintiff was returning to her correct
side of the road after encountering the kangaroos when the
defendant seized the steering wheel. His doing so was, as his
Honour remarked, plainly fraught with danger.
It was nevertheless submitted by the defendant that at the time he did so the vehicle was already out of control, and that this was demonstrated by the presence and direction of the tyre marks on the bitumen surface of the road. The learned judge accepted the plaintiff's evidence to the contrary. Again, that was a conclusion that was plainly open on the material before him. The tyre marks may be thought to support an inference, which his Honour also drew, that the vehicle was in "a somewhat more precarious position that the plaintiff would suggest"; but he went on to find that the situation was not one of an emergency that would have justified a person in taking the steps which the defendant did; that the defendant was guilty of negligence in taking hold of the steering wheel as he did; and that this was a cause of the accident.
Once that point was reached it became a matter of apportioning blame by reducing the damages recoverable by the plaintiff to such an extent as was just and equitable having regard to her share in the responsibility for the damage. The process is not one that calls for a minute analysis of successive causes in the sequence leading to the damage, which is what the contribution legislation was designed to avoid.
The trial judge apportioned two thirds to the defendant and one third to the plaintiff. An apportionment is not readily disturbed on appeal, and there is no basis for interfering with it in this case.
The appeal and cross-appeal should be dismissed. Making no order as to costs has the effect of throwing on to the appellant defendant the costs of instituting the appeal and paying for the appeal record. However, such a result fairly reflects the true state of affairs on the appeal, in which the defendant's submissions were the principal focus of attention.
I agree with the order proposed by Shepherdson J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 44 of 1995
Brisbane
| Before | McPherson J.A. Demack J. Shepherdson J. |
[Graham v. Jamieson]
BETWEEN
LEAH CHRISTINE GRAHAM
(Plaintiff) Respondent
AND
MERVYN COLIN JAMIESON
(Defendant) Appellant REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered the 14th day of July 1995
I have had the opportunity of reading the reasons for judgment of Shepherdson J. I agree with what his Honour has said.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 44 of 1995
Brisbane
Before McPherson JA.
Demack J.
Shepherdson J.
[L.C. Graham v. M.C. Jamieson]
BETWEEN
LEAH CHRISTINE GRAHAM
(Plaintiff)
Respondent
AND
MERVYN COLIN JAMIESON
(Defendant)
Appellant
REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment Delivered 14 July 1995
The abovenamed respondent sustained severe injuries when on the morning of 14 December 1990 a Holden commodore sedan which she was then driving left the Landsborough Highway north of McKinlay and overturned.
After a trial of the above action in which the respondent sued for damages for those injuries, a Judge of the Trial Division found that the incident was caused by the negligence of the abovenamed appellant and the negligence of the respondent; he apportioned blame as 66.67% to the appellant and 33.33% to the respondent.
The appellant has appealed against the finding of liability against him and also against the above apportionment. The respondent has cross-appealed seeking an order that the finding of negligence against her be overturned.
The total of the respondent's damages assessed was $410,536 and of that sum the learned Trial Judge gave judgement against the appellant for $273,663. The Holden commodore belonged to the appellant who was an agent for the licensed insurer of the vehicle. The vehicle was being driven by the respondent and the appellant was the only passenger, being seated in the front seat. At the trial two accounts as to the circumstances of the accident were given but a common feature of the accounts was that the appellant at some time placed his hand on the steering wheel. According to the respondent, the appellant took hold of it - "grabbed it" - and this was the cause of the accident. According to the appellant he did not take hold of it - he put his hand on it when he saw the vehicle off the roadway or substantially off the road way and sliding towards a table drain and that he did so in the hope that the vehicle would go straight into the table drain and this would prevent it from rolling.
The commodore was travelling along a two lane bitumen highway with a dividing white centre line and the area where the accident occurred was flat and straight. The road was shown in photographs tendered as exhibits. As the learned Trial Judge said - "There is a drop of some inches from the bitumen surface to the adjacent gravel which then falls away quite substantially to a table drain."
A short distance before the accident the commodore had overtaken a vehicle driven by a Telecom employee. The driver of the Telecom vehicle gave evidence that the male passenger in the commodore appeared to be laid back in the passenger seat up against the window as if he were asleep.
The incident occurred at 7 - 7.30am although the learned Trial Judge made no specific finding as to the time.
After overtaking the Telecom vehicle the respondent saw some kangaroos on her side of the road way and she slowed down to about 20 - 30km per hour. She said the commodore travelled onto the incorrect side of the road to pass the kangaroos and she felt a bump which she assumed to be one of the kangaroos jumping into the vehicle as it passed - a dead kangaroo was later found near the accident scene. The respondent then accelerated and drove back onto her correct side of the road.
In the course of doing so she apparently went too far and the rear passenger side wheel went off the bitumen surface and into the gravel.
According to the respondent, the appellant who had been asleep suddenly awoke and grabbed the steering wheel; she said the vehicle at the time was under control and that she "was back on the road" before the appellant grabbed the steering wheel; she said that when the appellant grabbed the steering wheel she "fought with him for a few moments with the steering wheel", that she applied the brakes and thereafter had little recollection of what happened until she woke up on the ground. In the course of his reasons for judgement the learned Trial Judge said -
"It is her case that she lost control of the vehicle as a result of the defendant's grabbing it [the steering wheel] in the circumstances which I have just outlined. She says that although one of the wheels of the vehicle had left the highway there was no emergency such as to justify what the defendant did."
When police interviewed the respondent following the accident she failed to tell them about the appellant having grabbed the steering wheel. She told them she had lost control of the car and that that was the cause of the accident. The explanation the respondent gave for failing to tell the police of the appellant's actions was that the appellant had asked her not to mention the incident involving his grabbing the steering wheel because he was concerned as to what impact this might have upon his insurance.
The appellant's version in evidence was that he had been merely dozing, that soon after overtaking the Telecom truck he heard the respondent make some exclamation about kangaroos and he sat up and saw the vehicle off the road way with the front facing at more than 90o from its previous line of travel; he said he reached out and put his hand on the steering wheel in the hope that the vehicle would go straight into the drain and prevent it from rolling and that although he pushed the wheel in a clockwise direction it had no effect on the movement of the vehicle which then overturned.
In his reasons for judgment the Trial Judge said that the determination of the issue of liability depended entirely upon issues of credibility and particularly upon the credibility of the respondent and the defendant. He went on:-
"Neither made a positive impression upon me. My impression was that each sought to give an account which justified their position and place the blame for the accident upon the other. The account which the plaintiff gave to the investigating police officer raises serious questions as to her credibility."
His Honour then said "her failure to make any references to the contact (to use a neutral term) made by the defendant with the steering wheel can only be explained by either her not being aware of it or it not being pertinent to the events which occurred or her claim that she was requested not to make any reference to this."
A number of persons associated with the respondent were called to give evidence of conversations with the appellant or when the appellant was present. The respondent's sister-in- law Deborah Graham gave evidence of having been present at the Mt Isa Hospital when the appellant and respondent arrived in an ambulance on the day of the incident. Soon after there was a discussion between the appellant and a Mr Barnes (who lived with the respondent). Deborah Graham said that during this discussion the appellant had said he was feeling guilty because he had grabbed the steering wheel. Deborah Graham also swore that the appellant was present with others at the house of Mr and Mrs Graham Snr on a subsequent occasion when the accident was discussed and where further references to the appellant "grabbing the wheel" were made. She swore that during these discussions the appellant did not deny that he had grabbed the steering wheel or say that it had not happened at all.
The respondent's mother gave evidence of hearing part of a conversation between the appellant and Mr Barnes on the day of the accident. She said the appellant had said he was asleep, had awoken with a fright and had grabbed the wheel.
Mr Barnes also gave evidence that during a conversation he had with the appellant in which the matter of the car insurance was mentioned, the appellant had told him that he would have to ask the respondent not to say anything about his grabbing hold of the steering wheel. Barnes later made a statement to the respondent's solicitor and that statement became ex.12. It contained no reference to any conversation about insurance, and as His Honour noted in his reasons for judgment, Barnes explanation was that he was asked only for a short statement or a brief account.
Quite obviously, the Trial Judge, having in his reasons for judgment made known his views that neither the appellant nor the respondent made a positive impression upon him, could not rely solely on the evidence of either to determine the issues of liability before him.
As for the witness Barnes, His Honour said that he did not find his evidence helpful and that it seemed to him that he was plainly bent on advancing the respondent's case. He expressly said he would not be prepared to accept his account of the conversation with the appellant unless there were other acceptable evidence which supported it.
His Honour then considered the evidence of the respondent's mother and her sister-in-law Deborah Graham who he described as "quite credible witnesses". He did not regard the mother's evidence as being other than neutral. He said the evidence of Deborah Graham was in a somewhat different category and he accepted that she heard the appellant tell Barnes that he felt guilty because he had grabbed the steering wheel and he also accepted that the appellant was present at later conversations in which it was related that he had grabbed the steering wheel and to which he did not respond.
Having made these findings His Honour went on:-
"This would not however be inconsistent with the
defendant's account and I would not regard it alone
as being of any real significance."
I think it best if I now set out what then appeared in His Honours reasons for judgment:-
"I bear in mind that perhaps not too much ought to be made of a statement made by the defendant at the hospital in circumstances where the plaintiff had sustained quite serious injuries and the defendant had escaped injury. He said in evidence that he did have a feeling of responsibility although he did not feel that the accident was his fault. He explained that he felt responsible in the sense that the accident happened at a time when the plaintiff was driving when he could had he wished have driven the remainder of the journey. However, making all due allowances for the fact that he may have expressed some sense of guilt or responsibility in discussions, it is not in my view possible to reconcile the statement which I am satisfied he made, namely that he felt guilty because he grabbed the wheel, with his account. This statement can only be regarded as a significant one in terms of a resolution of the dispute as to what occurred.
I am satisfied that it is likely that the defendant did grab the steering wheel and that this resulted in the plaintiff losing control of the vehicle and the vehicle overturning. I do not accept that the vehicle was already out of control and inevitably bound to come to grief when the defendant placed his hand on the steering wheel. It is of course his account that that had no effect of any kind. I accept the plaintiff's evidence that the vehicle was not out of control at the time the defendant grabbed the steering wheel, although I am inclined to think that the vehicle was in a somewhat more precarious position than the plaintiff would suggest and that it was not simply a case of the rear wheel of the vehicle being only somewhat marginally and momentarily off the bitumen and the vehicle being back on the bitumen when the defendant grabbed the steering wheel.
The picture which the evidence leaves me with is not one of an emergency which would have justified a person taking the steps which I am satisfied the defendant did. I think that whilst what he did was understandable a reasonable person would not have reacted in such a way and that his conduct fell below the standard which could be expected of a hypothetical reasonable person in his position. The taking hold of a steering wheel of a vehicle moving along the highway at a significant speed (something like 60km per hour) is plainly fraught with danger.
I do not accept the plaintiff's evidence that the vehicle was wholly on the road when the defendant took hold of the steering wheel although it would seem clear from the tyre marks that it must have been wholly on road at the time she applied the brakes.
I find that the defendant was guilty of negligence in taking hold of the steering wheel in the circumstances in which he did and that this was cause of the accident. So far as the plaintiff is concerned it seems to me she failed to exercise proper control over the vehicle in allowing it to move at least partly off the road way with a wheel or wheels of the vehicle off the bitumen surface and travelling on the gravel surface some significant drop below. Her negligence in my view should also be regarded as a cause of the incident."
Mr Williams Q.C. who appeared as leading counsel for the appellant in this court challenged the finding of negligence against his client arguing that the appellant's conduct was, contrary to the finding made by the learned Trial Judge that the appellant's conduct was reasonable, within the ambit of the foreseeable consequences of the plaintiff's negligence.
Mr Williams further argued that the finding of negligence against the appellant was entirely speculative and that, having found the plaintiff was negligent, the finding of negligence against the appellant was contrary to the doctrine of alternative danger.
In my view, the argument on each of these bases must fail unless this court is persuaded that the learned Trial Judge's finding, based on the respondent's evidence that the vehicle was not out of control at the time the appellant grabbed the steering wheel, must be set aside.
This finding depended to a substantial degree on the respondent's credibility and that being so:-
"the finding must stand unless it can be shown that the Trial Judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with fact incontrovertibly established by the evidence' or which was 'glaringly improbable'." (Devries v. Australian National Railways Commission (1993) 177 CLR 472 at p.479.
While it is true to say that the learned Trial Judge was not prepared to act on the respondent's evidence alone it is clear from the careful way in which his Honour considered the other evidence that that other evidence bore on his ultimate decision to accept the respondent's evidence that the commodore was not out of control at the time the appellant grabbed the steering wheel.
In my view the challenged finding must stand as the appellant has not made out any of the bases in the above extract from Devries.
His Honour also found that there was no emergency which would have justified a person taking the steps which he found the appellant did and there is no reason to set aside this finding.
Mr Williams has further argued that the evidence shows there were two incidents in which the car was in the gravel and that these two incidents are found in the evidence of Deborah Graham. He founds this submission on her evidence as to a conversation during which the appellant was present and in which it was said in effect that the car was in the gravel at the instant when the appellant had woken up, heard the gravel under the car and grabbed the steering wheel. His argument is that when the appellant grabbed the steering wheel the car was in an irretrievable skid as evidenced by tyre burn marks shown in certain photographs exhibited and that the learned Trial Judge should have so found.
Again, this argument is designed to counter the learned Trial Judge's finding that the vehicle was not out of control at the time the appellant grabbed the steering wheel.
In my respectful view this argument also fails. His
Honour had before him evidence from the respondent that when
the appellant grabbed the wheel she had the car under control.
As can be seen from the above extract from His Honour's
reasons, the learned Trial Judge accepted this evidence as he
was entitled to do. Further, although the learned Trial Judge
made no specific finding on the following matters, there was
clear evidence of tyre burn marks on the bitumen surface.
These appear in the photographs and are consistent with the
respondent having applied the brakes. Morris the driver of
the Telecom vehicle verified the tyre burn marks on the
roadway as appearing in the photographs ex.10 and said these
marks became scuff marks leading to a V drain and a rill of
dirt before marks on the ground indicated where the car had
rolled over.
In my view, the appellant has failed to satisfy this court that the finding of negligence against him should be set aside.
I shall defer for a moment considering the appeal in so far as it relates to apportionment of liability until after I have considered the cross appeal by the respondent. The respondent has argued that the appellant should be found solely to blame for the incident and the finding of negligence against her should be set aside.
In my respectful view, the findings in the case before this court fall within the following dictum of Deane J. in March v. E & M.H. Stramare Pty Ltd & Anor (1991) 171 CLR 506 at p.522:-
"For the purposes of the law of negligence the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."
In the view which I take of the evidence and the findings made by the learned Trial Judge, as a matter of common sense this accident would not have happened without the negligence of both the respondent and the appellant and that negligence has been spelled out by the learned Trial Judge. In Mitchell v. Clancy (1960) Qd.R 532 Fullagar J. Kitto J. and Menzies J. said (at p.546):-
"... in a case where an accident would not have happened without the negligence of both parties concerned, it is, we think, only in a clear case that it should be decided that the damage was due to the negligence of one to the exclusion of the other: see Alford v. Magee (1952) 85 CLR 437, at p.461; where it is said that a distinction between two negligent persons should not be drawn 'on light or trivial or dubious grounds'."
In my view, the cross appeal must be dismissed.
I return to the appellant's appeal against the
apportionment of liability. This apportionment was a matter for the learned Trial Judge who was required by law to reduce the respondent's damages to such extent as he thought just and equitable having regard to her share in the responsibility for her damages. No basis has been shown for interfering with His Honour's apportionment.
I would dismiss the appeal and the cross appeal. On the matter of costs of the appeal, because neither side has succeeded I would make no order as to costs, leaving the parties to bear their respective costs of the appeal, recognising though that in respect of the costs of preparation of the record, the appellants' costs may be greater than those of the respondent.
0
3
0