Hering –v-Martin and Anor

[2003] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

Hering –v-Martin & Anor [2003] QDC 163

PARTIES:

MANRED KARL HERING  (Plaintiff)

AND

GARRY THOMAS MARTIN                 (First Defendant)

AND

SUNCORP GENERAL INSURANCE LIMITED ACN 075 695 966

  (Second Defendant)

FILE NO/S:

242 of 1998

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

18 July 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

7 & 8 July 2003

JUDGE:

Judge JM Robertson

ORDER:

I order that the plaintiff’s claim be dismissed

CATCHWORDS:

NEGLIGENCE – issue of liability regarding motor vehicle accident

EVIDENCE - Where the accident occurred some six years previous to trial. Where insufficient evidence to satisfy onus of proof.

COUNSEL:

R Trotter (for the Plaintiff)

P W Hackett (for the Defendant)

SOLICITORS:

Boyce Garrick (for the Plaintiff)

Quinlan Miller & Treston (for the Defendant)

1. The plaintiff’s claim is for damages for injuries he sustained in a motor vehicle collision between his Jaguar XJS and the first defendant’s Ursus Tractor at around 2.30pm on 11 May 1997 on Stanley River Road, Maleny. Quantum is admitted at $110,000.00 and the only issue at trial was liability. Simply put, the plaintiff says that the defendant’s tractor was travelling with its right wheels approximately two feet over the double white line, and that as he travelled westwards around a bend to the left in the road, he had no time to avoid the collision. He says that at all times, his vehicle was travelling at around 80 kilometres per hour (it is a 100kph speed area) on its correct side of the road. The defendant says that he was proceeding in an easterly direction in his tractor at approximately 10 kilometres per hour with the left tyres slightly off the left hand side of the roadway, when he saw the plaintiff’s vehicle which was travelling fast in the opposite direction up the hill. He says that the plaintiff’s vehicle then proceeded across the double white lines, and, as he turned the tractor to the left to avoid a collision with the bucket on the front of the tractor, the plaintiffs vehicle slammed into the side of the tractor. Clearly, the versions are mutually incompatible and it is necessary for me to resolve the factual dispute by reference to issues of credit and by reference to proved facts. The plaintiff bears the onus of proof.

1. The plaintiff says that after the impact, his vehicle spun onto its incorrect side of the road as he tried to brake. He says he steered to the left, the car spun across the road and came to rest facing eastwards on its correct side of the roadway. He was injured in the incident. His black Labrador was in the vehicle and there is a factual dispute about the dog which I will deal with later.

1. He was taken eventually to Maleny Hospital where he stayed overnight. The next morning he called his neighbour Mr Malcolm Fuller who collected him from hospital. I accept Mr Fuller’s evidence that on the return trip to the plaintiff’s property they stopped at the accident scene. Mr Fuller observed two distinct sets of skid marks; one set heading west and another “decent set” on the other side of the road. Later that day, the plaintiff called him and he again collected the plaintiff and drove to the scene where the plaintiff took a number of photographs. The plaintiff says that he returned alone the next day and took some further photographs of the scene. I accept that photo number ten in Exhibit 2 was taken the day after the accident and that photographs seven and nine were taken two days later.

1. It is axiomatic, as accepted by both expert witnesses, that photographs of a road surface can be misleading, because of perspective and light conditions and position of the photographer. All the photographs in evidence have this drawback. I am satisfied that the police investigation was not very intensive. We have no police photographs, or properly calibrated plans of the scene showing relative positions of skid marks and distances etc.

1. The plaintiff also called Mr Ainsworth. He was a friend of the plaintiff. They met by chance in Maleny that day and it was agreed that Mr Ainsworth would drive to the plaintiff’s place to collect a mower. The plaintiff followed him out of Maleny. He (the plaintiff) was intending to visit a neighbour. Mr Ainsworth noticed the plaintiff’s vehicle on a number of occasions as he drove along Stanley River Road in a westerly direction. He recalls driving past the entrance to the Wootha tennis court on his right and into the left hand bend when he saw the tractor approximately 50-70 metres past the bend. I am satisfied that it was the tractor being driven by the defendant. It was not suggested otherwise. It was fine and visibility was good. He says that the tractor’s front bucket was about four foot off the road and that both the driver side wheels were over the double white line; the rear wheel more than the front wheel. He says that the tractor did not have any flashing lights. He says the tractor did not move over; rather he had to take evasive action to steer around the tractor to avoid a collision. I infer that this occurred to the west of the bend where the road is more or less straight; and well after the hill leading up and into the bend. The defendant was not asked any questions about Mr Ainsworth or his vehicle, although Mr Hackett suggested to Mr Ainsworth that the tractor was on its correct side of the road, and that the bucket was only two foot off the ground, which the witness rejected. The defendant’s evidence was that he always drove with his right wheels on the bitumen and his left wheels slightly out on the verge, as a courtesy to vehicles approaching from behind. Mr Hackett makes a number of criticisms of Mr Ainsworth’s evidence at paragraph 21 of his written submission, none of which significantly affects his reliability in my opinion. Mr Ainsworth impressed me as a candid witness and I accept his evidence.

1. Mr Fuller gave evidence that the next day he personally observed the skid marks which one can see on the left hand side of the double white line in Exhibits 7, 9 and 10. The plaintiff’s case is that these skid marks were caused by the plaintiff’s vehicle yawing immediately after impact in a clockwise direction and under the force of the impact. The defendant’s case is that the impact occurred further down the road, and on the plaintiff’s wrong side of the road thus causing the obvious skid marks depicted in photographic Exhibits 6 and 7. It is the defendant’s case that the very obvious yawing skid marks delineated by black arrows in Exhibits 4 and 5 were caused by the tractor immediately after impact as it moved under the force of impact. It is common ground that it came to rest at right angles to the road across the centre line and more to the southern side of the road. From there the defendant reversed back to ensure that the roadway was not blocked.

1. It was put to the plaintiff that he had told a number of witnesses that the accident occurred because his dog came into the front seat and thus caused him to lose control. It was suggested that he made comments of this nature at the scene to Mr Hopper, the tow truck driver, Mr Kelleher, who was from a nearby farm and who heard the impact, and to a nurse, Mrs Wheeler at the Maleny Hospital. The plaintiff vehemently denied these suggestions. His evidence is that the dog was in the back seat asleep at the time of impact. I infer that she was unrestrained. When the car came to rest, the dog, on the plaintiff’s evidence, then attempted to come over into the front between the bucket seats and he held her back causing him pain. The defendant in his evidence says the dog was outside the car when he went over to check on the plaintiff immediately after the accident. Mr Kelleher and Mrs Walker had no recollection of such a conversation. Mr Hopper says that when the plaintiff was being transported to the ambulance by ambulance officers on a stretcher, he spoke to him and he said words to the effect, “The dog was coming across and that is why I came to grief”, None of that surrounding detail was put to the plaintiff. Mr Hopper says he was only asked to recall this conversation about two weeks ago and that he never made a written statement. It is clear to me that some theory about the dog being the cause of the accident was abroad from a very early stage in the investigation of the matter. In Exhibit 19, there are some notes of the investigating officer which I assume records his contemporaneous record of what the defendant said at the scene. On page four there is a question, “What has a dog got to do with the accident?” to which the defendant is said to have replied, “The dog got in front of his vision.” The defendant does not now assert any personal knowledge of anything said about the dog and he wasn’t asked about this entry. It was further put to the plaintiff that he said to the defendant while still trapped in his car, “I don’t know what happened.” The plaintiff denied this and in his oral testimony the defendant did not give this evidence. He says this in some statements he made (Exhibit 23), but he did not come up to proof in his sworn evidence. I think it is highly probable that Mr Hopper has heard something about the dog, and convinced himself over the years that it was said by the plaintiff. I reject his evidence on this point. I am satisfied that the dog had nothing to do with it.

1. Both sides engaged expert mechanical enquiries to investigate the accident. The reports are Exhibit 20 (Mr Kahler for the plaintiff) and Exhibit 21 (Dr Gilmore for the defendants). Yet again, the Court is faced with expert reports that do no comply with the law relating to admissibility of expert opinion evidence. That this is so, is not the fault of the experts, but rather is squarely the responsibility of the solicitors. If an expert is asked by a party to read that party’s version of events; and then asked to express an opinion as to the mechanism of the accident by reference to that version of events together with some photographs; it is not surprising that the expert will tend to support that party’s version. The proper course, in my view, is to supply the expert with all the objective evidence – photographs, plans etc, have them examine the roadway and the two vehicles (both of which are still available) and then express an opinion as to the mechanism of the accident. It is wholly beyond the province of an expert to do as Mr Kahler has done on pages 28-30 of his report and actually compare the version of the parties and opine as he does that, “Mr Hering’s version of the accident is considered to be the more probable hypothesis.” By doing so, he purports to usurp the functions of the Court and he is not entitled to do so. Similarly, much of Dr Gilmore’s reporting involves forensic criticisms of Mr Kahler’s evidence. It is perfectly acceptable for parties to obtain reports like this to facilitate cross-examination, but this is not an experts report for the purposes of admissibility of opinion evidence under the rules of evidence. It is no wonder that the Rules Committee of the Supreme Court is moving towards a system of Court appointed experts, when lawyers continue to completely misapprehend the rules of evidence.

1. I have already mentioned the difficulties associated with the photographs in this case. There was a lot of evidence about the significance of the patches of dirt visible on the white centre line in Exhibits 9 and 10. These patches of dirt cannot be seen in the photographs taken by the defendant’s loss assessor, apparently the day after the accident. An example of this is Exhibit 8.

1. Ultimately, nothing turns on the patches of dirt. Certainly, Mr Kahler took them into account, but in a peripheral way, in forming his opinion that in all probability the impact occurred in the centre of the road.

1. There are certain inconsistencies in the plaintiff’s account, as Mr Hackett submits. The plaintiff is clearly a very emotional man; and he told me that he was very stressed as a result of the long delay in getting this matter to court. He said he had been to six or seven firms of solicitors. He also referred often to his belief that the people of Maleny were against him. For example, he implied that the police had deliberately hindered his attempts to give his side of the story. As Mr Hackett suggests, he changed his story about how far the tractor was from him when he first saw it on the road. Mr Hackett suggests this change coincided with the delivery of Dr Gilmore’s first report, but I think this is drawing a long bow and, in any event, this so called coincidence was not put to the plaintiff. In my opinion, the plaintiff has, to a significant extent, reconstructed his account, particularly of what occurred after impact. For example, he is adamant that the large gouge or yaw mark visible on the northern verge in Exhibit 4 was not caused by the tractor as a result of the impact. Rather, he implies that it was caused after the accident when the defendant reversed the tractor off the road. I accept the evidence of both experts that that gouge was caused by the tractor under the force of the impact. The plaintiff is also adamant that the tractor did not change direction prior to impact. In other words, he says it retained its line prior to impact. The defendant says he turned to the left at the last moment so as to avoid an impact with the tractor bucket. I am satisfied that the objective facts point to the defendant’s evidence on this issue is more probable than the evidence of the plaintiff. I accept Mr Martin’s evidence that the bucket protrudes slightly beyond the alignment of the tractor wheels. This can be seen in the photographs taken by Mr. Hopper at the scene on the day of the accident. Having regard to this evidence, it is more probable than not that had the defendant not changed direction, the plaintiff’s vehicle would have collided with the front edge of the bucket. I am satisfied that the collision was not head-on; rather it involved the plaintiff’s vehicle initially impacting the tractor at or around the front driver’s side tyre and at a point on the Jaguar forward of the front driver’s side tyre.

1. The defendant was an impressive and careful witness. Certainly his credibility is dented to an extent by my acceptance of Mr Ainsworth’s evidence; but his account of what occurred has remained consistent throughout. As I have noted, he was not specifically questioned about Mr Ainsworth’s evidence.

1. The expert evidence from both sides involved a great deal of educated guesswork. The separation on the roadway between the skid marks in the centre of the road (photo 9, Exhibit 2) and the skid marks on the defendant’s correct side of the road (Exhibit 6) caused Dr Gilmore to doubt whether these skid marks were caused by this accident. However, both experts accepted that at times when one would expect to see skid marks, none are visible. As Dr Gilmore conceded, on the photographs, it appears that there is also a gap in the skid marks on the defendant’s side of the road and the other side where the Jaguar ultimately came to rest. This is despite a preponderance of evidence that the Jaguar spun out of control in that area. I have already commented on the lack of cogent objective evidence. The photographs are somewhat misleading; although as Mr Kahler says; a more complete picture can be seen by use of a number of photographs. Because of these deficiencies, the expert evidence does not assist me either way as to which account is more probable.

1. As to the balance of the evidence, I am not able to confidently reject as unreliable the evidence of either the plaintiff or the defendant. As I have said, I think the plaintiff has reconstructed to an extent, but there is no doubt he is convinced of the accuracy of his recollection. The defendant’s evidence is undermined to an extent by the testimony of Mr Ainsworth, but overall he impressed me as a reliable and consistent witness and I am not prepared to reject his evidence or to conclude that I prefer the plaintiff’s evidence to his.

1. The passage of time, which was unexplained in the evidence, the absence of sufficient cogent evidence of the position and length of skid marks, and my conclusions in relation to the evidence of the parties, leaves me in a position where I am unable to make any positive finding as to where the initial impact occurred. The plaintiff has the onus and he has failed to satisfy me on the balance of probabilities that his injuries were caused by the negligence of the defendant. His claim is dismissed. I will hear submissions as to costs.