Holberry v Nominal Defendant No. Scciv-01-1699

HOLBERRY v NOMINAL DEFENDANT
[2002] SASC 86
Magistrates Appeal: Civil

WILLIAMS J This is an appeal by the plaintiff against the decision of a Magistrate in civil proceedings on 26 November 2001.
The plaintiff brought these proceedings against the Nominal Defendant pursuant to s 115 of the Motor Vehicles Act 1959 which provides:
“(1)Where -
(a) death, or bodily injury, has been caused by, or has arisen out of the use of, a motor vehicle; and
(b) the identity of the vehicle has not after due inquiry and search been ascertained,
a person who could have obtained a judgment in respect of that death or bodily injury against a person insured under a policy of insurance in respect of the vehicle (assuming that the vehicle had been an insured vehicle at the relevant time) may recover by action against the nominal defendant the amount of the judgment that could have been so recovered.”
It is not in dispute that on 20 October 1996 at about 3.30am the plaintiff (a pedestrian) was struck and injured by an unidentified passing car on Flaxmill Road Morphett Vale. The question at issue is whether the unidentified motorist has been shown to be negligent so as to qualify the plaintiff as “a person who could have obtained a judgment in respect of bodily injury” for the purpose of the statute.
In dismissing the plaintiff’s claim at trial the Magistrate held that the plaintiff had failed to prove that the unidentified driver was guilty of negligence.
The plaintiff’s grounds of appeal are:
“(a)The Learned Special Magistrate erred in finding no negligence by the unknown driver of the motor vehicle which collided with the plaintiff.
(b)The Learned Special Magistrate misinterpreted the plaintiff’s argument in stating: “It was suggested the driver’s failure to stop is negligence”. Rather, the plaintiff argued that the failure to stop was evidence of negligence; akin to an implied admission from consciousness of wrongful conduct.
(c)Upon the findings of fact made by the Learned Special Magistrate, the unknown driver was plainly negligent.
(d)In the absence of any version of events by the unknown driver, the Learned Special Magistrate should have been prepared to make such inferences, favourable to the plaintiff, as were open upon his uncontradicted version.”
The plaintiff and his friend Ben Greenfield were walking from Greenfield’s home at Marston Drive Morphett Vale to a house at Hackham West. The pair walked generally south and then traversed a pedestrian underpass below Flaxmill Road (which road runs generally east west). As they emerged from the southern end of the underpass the pair were confronted by a teenage group of several males and a female who were also walking along Flaxmill Road. There was a “verbal exchange” which led to the appellant being heaved in the chest and pushed out on the road by a member of the opposing group. The plaintiff ended up in a crouched position on the roadway (and apparently facing generally south). He started to recover from this position (to a standing position) when he saw a headlight to his left about 40 centimetres away. The plaintiff then has a vague recollection of seeing tail lights as he ended up on his face in or near the gutter. Greenfield gave evidence of hearing a screech of brakes and of a white Datsun then “driving around” the plaintiff after hitting him as he was getting up. Previously the plaintiff had been knocked down and kicked. There was evidence that both the plaintiff and his companion had been drinking. Greenfield said that the plaintiff was struck close to the nearside headlight and thrown “back from the car”. The car did not stop but it slowed down and the driver proceeded to “drive around” the plaintiff and drove on according to Greenfield.
The Magistrate found that: (par 33)
“...the plaintiff was subjected to a violent physical assault which comprised both punches and kicks by the larger youth in the group of youths. I am satisfied and so find the plaintiff was forced out onto the road. I am satisfied and so find the plaintiff landed on the road approximately one metre out from the gutter. Based on Ben Greenfield’s evidence I am satisfied and so find that the plaintiff was in the process of getting to his feet and was about half way up when he was struck by a motor vehicle travelling west on Flaxmill Road. I am satisfied and so find that the driver of that motor vehicle did not stop.”
The Magistrate then considered the question of liability: (par 34)
“…The question arises as to whether any negligence has been established against the driver of the vehicle. There is no evidence as to the lighting in the area and no evidence as to the vision of a driver approaching the point where the collision occurred. I cannot say what the driver of the vehicle might have been able to see approaching the point of impact. I cannot on the evidence estimate how long the plaintiff was on the road before he was struck by the vehicle but my best estimate on the evidence presented is that he was on the road a very short time indeed and possibly only a matter of seconds. I can say that the vehicle braked before the impact. Ben Greenfield heard the screech of its brakes which caused him to look at the plaintiff and he then saw the collision. That suggests the driver saw the plaintiff or at least something on the road and took some evasive action. I cannot say how fast the vehicle was travelling at the time the driver saw the plaintiff or something on the road. However after the impact occurred the vehicle was travelling slowly enough to drive around the plaintiff before driving off. That suggests its speed was not great but more than that I cannot say. I can say it had at least one headlight operating because the plaintiff saw it. I can also say it had its tail lights operating because the plaintiff says he saw them.”
The Magistrate then added the following observations with which the appellant takes issue: (par 35)
“It was suggested the driver’s failure to stop is negligence. I cannot accept that. The fact that the plaintiff was struck by a vehicle is not proof of negligence by the driver of the vehicle. This is not a res ipsa loquitur situation. In the absence of any basis to attribute any negligence to the driver the plaintiff’s case must fail.”
The plaintiff contends that the failure to stop is evidence of negligence. (This submission is to be distinguished - says the appellant - from the proposition that “failure to stop is negligence”).
According to the appellant’s argument the only inference is that the driver was negligent having regard to uncontradicted evidence.
For the purposes of this appeal I will assume that an implied admission of negligence by an unknown driver is evidence against the Nominal Defendant notwithstanding that the former is not the agent of the latter (see Holloway v McFeeters (1956) 94 CLR 470 at 482 and Kinnear v Miller (1959) SASR 41 at 45-46).
There was evidence that the unknown driver braked - there was evidence of skid marks (Exhibit P2). The driver “slowed down when it braked” and notwithstanding the impact “proceeded to just drive around [the appellant] and drive on” - according to Greenfield.
In my opinion although the obligation of a driver to stop is quite clear, it is equally understandable (if not excusable) that there may be reasons other than a guilty mind which might cause a driver to think twice about stopping. The driver was unknown. A young woman or an elderly person travelling alone might well be particularly fearful of becoming involved in a disorderly incident - if not worse.
The scene as painted by the evidence suggests to me that the driver may well have faced a dilemma as to what to do. At the least, of course, a driver mindful of his or her responsibilities would drive to the nearest police station or summon police assistance at a safe distance from the potential danger posed by those at the accident. This did not occur. However, I am not prepared to speculate what happened to the driver or what action he or she may have subsequently taken. It is not inconceivable that the driver later turned around and drove back past the point of the accident to check what had happened. The driver’s initial perception of events may have been quite different from that of the appellant or Greenfield. The actions of the driver in “driving around” the appellant is consistent with the driver endeavouring to cope with the actions of an intoxicated person who was insisting upon exercising some degree of “dominance” over the roadway and passing traffic. Of course, the driver should have reported the accident but there are a number of reasons to explain this omission in a way which makes it difficult for a Court to draw any inference as regards the workings of the driver’s mind.
In addition to these factors there are a number of other facts which should cause a court to be extremely cautious in making a finding of negligence. The nature of the collision is not known. I have recounted how the appellant ended up in the gutter but little is known as to how he was struck. There is no evidence as to the state of the lighting or what the driver might reasonably have been able to see approaching the point of impact. There is no evidence of speed but there is evidence of evasive action and of a driver who had a vehicle sufficiently under control to drive around the appellant. There is no evidence that the driver’s lights were not operating correctly - indeed the evidence at least with respect to one headlight and the tail lights is to the contrary.
Upon the evidence the appellant does not qualify as a person to whom s 115 of the Motor Vehicles Act applies. It is unnecessary to consider the alternative contentions as to damages. No ground of appeal has been made out.
The appeal will be dismissed.

[2002] SASC 86

15 March 2002