Insurance Commission of Western Australia v Fitzgerald
[2006] WASCA 5
•20 JANUARY 2006
INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- FITZGERALD [2006] WASCA 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 5 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:120/2004 | 14 NOVEMBER 2005 | |
| Coram: | STEYTLER P MCLURE JA PULLIN JA | 20/01/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | INSURANCE COMMISSION OF WESTERN AUSTRALIA THOMAS ANTHONY FITZGERALD |
Catchwords: | Negligence Accident caused by unknown vehicle Whether trial Judge erred in accepting plaintiff's evidence Whether finding of negligence sustainable Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 7(3) |
Case References: | Fox v Percy (2003) 214 CLR 118 Warren v Combes (1979) 142 CLR 531 Westlake v Motor Vehicle Insurance Trust [1960] WAR 83 Abalos v Australian Postal Commission (1990) 171 CLR 167 Blum v Motor Vehicle Insurance Trust [1966] WAR 121 Devries v Australian National Railways Commission (1993) 177 CLR 472 Jones v Hyde (1989) 63 ALJR 349 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Motor Vehicle Insurance Trust (WA) v Tretjak (1989) 8 MVR 513 State Railway Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- FITZGERALD [2006] WASCA 5 CORAM : STEYTLER P
- MCLURE JA
PULLIN JA
- Appellant
AND
THOMAS ANTHONY FITZGERALD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER GREAVES
Citation : FITZGERALD - v - INSURANCE COMMISSION OF WESTERN AUSTRALIA & ANOR [2004] WADC 163
File No : CIV 996 of 2003
(Page 2)
Catchwords:
Negligence - Accident caused by unknown vehicle - Whether trial Judge erred in accepting plaintiff's evidence - Whether finding of negligence sustainable - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 7(3)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms B A Mangan
Respondent : Mr J G Staude
Solicitors:
Appellant : Phillips Fox
Respondent : Andrew Maughan
Case(s) referred to in judgment(s):
Fox v Percy (2003) 214 CLR 118
Warren v Combes (1979) 142 CLR 531
Westlake v Motor Vehicle Insurance Trust [1960] WAR 83
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Devries v Australian National Railways Commission (1993) 177 CLR 472
(Page 3)
Jones v Hyde (1989) 63 ALJR 349
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Motor Vehicle Insurance Trust (WA) v Tretjak (1989) 8 MVR 513
State Railway Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
(Page 4)
1 STEYTLER P: I have read, in draft, the judgment of McLure JA. It reflects my own reasons for concluding that the grounds of appeal were without merit and that the appeal should be dismissed with costs.
2 MCLURE JA: The respondent suffered personal injuries in a motor vehicle accident allegedly caused by an unidentified motor vehicle. He claimed against the appellant under s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). Commissioner Greaves entered judgment for the respondent against the appellant who appeals from that decision. At the conclusion of the hearing, the Court dismissed the appeal. These are my reasons for joining in that decision.
3 The accident occurred on the night of 28 February 2002 in Geddes Street Victoria Park. The respondent was driving his Toyota Hi-Ace at around 45 kilometres per hour along Geddes Street in a north-easterly direction. Vehicles were parked on the left-hand side of Geddes Street parallel with the kerb and facing north east. One of the parked vehicles was a Mitsubishi truck. Vehicles were also parked on the other side of Geddes Street, close to the kerb and facing south west. Although Geddes Street is not marked as a four lane road, it was wide enough to accommodate vehicles parked on the kerbside on both sides of the street and cars moving in both directions safely passing each other without moving over the midline of the road. The respondent's evidence was that an unidentified driver driving an unidentified vehicle in a south-westerly direction along Geddes Street suddenly moved to the wrong side of the road, forcing the respondent to take evasive action by swerving to the left, which resulted in him colliding with the Mitsubishi truck.
4 The respondent was aged 59 at the time of the accident. He was a self-employed driver engaged in the distribution of the daily newspaper. He travelled the same route, which included Geddes Street, six nights a week.
5 The respondent was the only witness to the accident. He gave evidence that he was proceeding along Geddes Street from Berwick Street and stopped at the intersection of Washington Street. He continued:
"Were there any vehicles that you saw that you had to give way to?---No, no. No vehicles at all. There was no traffic whatsoever. I remember leaving the compulsory stop and there was two vehicles parked on my left-hand side, one of which was a taxi and ahead on the right-hand side there was five or six cars but they were parked very closely together. They were a
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- fair way further on. There was the lights in the distance of an oncoming vehicle coming towards me.
When you left the corner of the intersection of Washington Street, you left from a stationary position?---Yes, after the compulsory stop, yes.
What sort of transmission does your vehicle have?---It was a five-speed manual 2.8 diesel.
In what gear did you proceed through the intersection and into the next block of Geddes Street?---Well, I would only be in approximately third gear when I was just about level with the first of those five cars on the right-hand side when – I would be doing approximately 45 I suppose. I definitely wasn't speeding. This other vehicle, this oncoming vehicle, just swerved onto my side of the road giving me no option but to try and get out of his road and I just swerved left and the passenger side of my vehicle collided with the back of the truck. I never even saw the truck as I was watching this other car and trying to avoid it. It would have been a head-on smash and I may not be sitting here."
6 The respondent made a written report to police dated 8 March 2003 of the circumstances of the accident. The trial Judge found that the report was consistent with the respondent's evidence at trial. That finding is not challenged.
7 The appellant did not challenge the respondent's honesty. Rather, its case was that the respondent made a "mistake because he did not see the truck". I infer the appellant's submission to be in effect that the accident was caused, or at least contributed to, by the respondent's failure to see or keep a proper look out for the truck. The Commissioner rejected the submission. He accepted the evidence of the respondent that he was on his side of the road with enough room to pass 20 trucks if they were there and that he was watching the oncoming vehicle which suddenly came straight at him. He accepted that the events, being the oncoming vehicle's sudden movement onto the wrong side of the road and the respondent's evasive action, occurred in the same split second. He continued:
"When carefully scrutinised, the evidence of the [respondent] should lead the court to conclude on the balance of probabilities that the oncoming vehicle came straight at the [respondent] and
(Page 6)
- that the [respondent] was trying to avoid it so that the left passenger side of his van hit the truck.
The facts as found leave me to conclude that the accident was caused by the negligence of the unidentified driver. The same facts also lead me to conclude that the accident was not caused or contributed to by the [respondent's] own negligence."
8 The appellant relies on three grounds of appeal as follows:
"1. The learned Commissioner erred in law and in fact in finding that there was an oncoming [unidentified] vehicle … when the:
1.1. respondent's evidence was the only evidence about the existence of the unidentified vehicle and
1.2 respondent's observations immediately prior to the accident were clearly wrong
and should not have been, without more, relied upon … to make the finding … .
2. If there was an unidentified vehicle … the learned Commissioner erred in law and in fact in finding that the accident was caused by the negligence of the unidentified driver of that vehicle when on the respondent's account … of how the accident occurred it was at least equally probable that the driver of the unidentified vehicle:
2.1 was confronted by the respondent's van approaching him or her as he or she avoided a row of closely parked cars on his or her left
2.2 was moving towards the respondent to avoid the row of 5 or 6 parked cars on his or her side of the road
2.3 could have stopped or slowed down in the middle of the road but
2.4 interpreted the respondent's action in moving slightly over further to his side of the road as a gesture to proceed.
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- 3. The learned Commissioner erred in law and in fact in finding that the accident was not caused or contributed to by the respondent's own negligence when on the respondent's own account of how the accident occurred he clearly failed to –
3.1 keep a proper look out
3.2 stop, slow down, swerve or take other evasive action – such as pull over to his left earlier and allow the unidentified vehicle and driver to proceed, as a normally prudent driver taking reasonable care for his own safety would do in the circumstances leading up to the occurrence of this accident."
9 As background to all the grounds of appeal, the appellant contended that the Commissioner "failed to take into account the guidance" provided by the judgment of Virtue J in Westlake v Motor Vehicle Insurance Trust [1960] WAR 83 at 86 - 87. Just whether and if so how this gives rise to a relevant error of fact or law is not clearly articulated. In Westlake, the plaintiffs (husband and wife) were involved in a motor vehicle accident which they alleged was caused by a car towing a caravan travelling in the opposite direction and which was on the wrong side of the road when it passed them. Virtue J said at 86 – 87:
"I think I have mentioned the really significant aspects of the evidence relating to the actual occurrence of the accident and the question is whether it is sufficient to satisfy the onus of proof thrown upon the plaintiffs to establish their case. I have no doubt that prudence and common sense require that evidence adduced by a plaintiff who is alleging negligence against the driver of an unidentified vehicle should be scrutinised with particular care, at any rate when corroborative evidence of the existence of the vehicle in question, either by oral testimony or by the existence of physical signs of its presence at the scene is lacking, and I consider that the same careful scrutiny should be applied to the evidence where, though the presence of an unidentified vehicle on the road at the time and place of the accident is established, the only testimony as to the negligence of the driver of the vehicle is that of the plaintiff, particularly in a case such as the present where no impact with the unidentified
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- vehicle is alleged, and where the accident could quite reasonably have happened in the way it did without the intervention of another vehicle at all."
10 In Westlake the male plaintiff had made prior inconsistent statements about the circumstances of the accident and the prior statements were inconsistent with independently proven facts about the accident scene. Virtue J in Westlake goes no further than observing that, in the absence of corroboration, the claimant's evidence should be carefully scrutinised. The Commissioner referred to Westlake and it is clear from his reasons that he carefully scrutinised the respondent's evidence. However, in this case the appellant did not challenge the honesty of the respondent's account of the accident and there was no independently proven facts or other uncontested testimony that was in conflict with the respondent's evidence. After careful scrutiny, the Commissioner was satisfied that the respondent's evidence relating to the accident was both honest and reliable. In those circumstances, the Commissioner's findings of fact can only be set aside where incontrovertible facts or uncontested testimony demonstrate that the Judge's conclusions are erroneous or where it is concluded that the decision was glaringly improbable or contrary to compelling inferences in the case: Fox v Percy (2003) 214 CLR 118. Of course, an appellate court is in as good a position as a trial judge to decide on the proper inferences to be drawn from facts that are undisputed or established by the findings of the trial Judge: Warren v Combes (1979) 142 CLR 531.
11 The substance of the first ground is that it was not open to the Commissioner to accept the respondent's evidence and find that there was an oncoming vehicle, that the respondent was watching the oncoming vehicle and that all of a sudden it came straight at him "when the respondent did not even see the truck in front of him and into which his vehicle collided". That submission is without logic and merit. The thrust of the respondent's evidence was that he did not see the truck because he was watching the oncoming vehicle. What the appellant describes as a "mistake", being the respondent's failure to see the truck before he collided with it, provides no logical basis for concluding that the respondent was mistaken as to the existence and conduct of the oncoming vehicle.
Ground 2
12 It is not the case that the respondent's evidence of how the accident occurred is consistent with the scenario posited in pars 2.1 – 2.4 of
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- ground 2. In particular, the hypothetical scenario is inconsistent with the respondent's evidence of the oncoming vehicle suddenly veering onto the wrong side of the road in circumstances where the two vehicles could safely pass each other notwithstanding cars were parked on both sides of the road. There is no merit in this ground.
Ground 3
13 The appellant contends that, on the respondent's evidence, he caused or contributed to the accident by his failure to take reasonable care. The respondent was driving in the "lane" adjacent to the midline of the road. The stationary parked cars on his left were not themselves a potential danger. There was an oncoming vehicle with cars parked on its left. The oncoming vehicle suddenly and unexpectedly veered onto the wrong side of the road and resulted in the respondent taking reflexive action to avoid a head-on collision with the oncoming vehicle. The conduct of the driver of the oncoming vehicle could not be reasonably anticipated having regard to the prevailing circumstances, including the width of the road. The respondent's action was reflexive not considered and that was reasonable in the circumstances. This was not a situation where the driver had notice of and thus time to consider all possible sources of danger and react by taking anticipatory evasive action such as slowing the vehicle or pulling over to the left-hand side kerb at an earlier stage. It was clearly open to the Commissioner to find, and the weight of the evidence supports the finding, that the respondent did not fail to take reasonable care in all the circumstances.
14 For these reasons, I concluded that the grounds were without merit and joined in dismissing the appeal with costs.
15 PULLIN JA: I have read the draft reasons prepared by McLure JA. I agree with those reasons and have nothing to add.
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