Manley v Alexander [2005] HCA 79 14 December 2005 P18/2005
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
B W Walker QC with P Kulevski for the appellant (instructed by Edward John Myers)
C L Zelestis QC with B G Bradley for the respondent (instructed by Bradley & Bayly)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Manley v Alexander
Negligence – Accident – Respondent struck and injured by a vehicle driven by the appellant – Respondent lying on road carriageway at time of accident – Respondent heavily intoxicated at time of accident – Appellant's attention drawn to a third person at the side of the road – Appellant continued to drive vehicle at same speed – Appellant changed vehicle direction by veering to the centre of the road – Whether appellant had exercised reasonable care in carrying out his duty to other road users.
GUMMOW, KIRBY AND HAYNE JJ. At about 4.15 am on 7 October 2000 the respondent was struck and injured by a tow truck driven by the appellant. When he was struck, the respondent was lying down on the carriageway of Middleton Beach Road, Albany, near the intersection with Vine Street.
By his own account the respondent had drunk 12 stubbies of beer in the preceding eight hours. He had no recollection of how he came to be on the roadway. At about 4.00 am he had set out to walk home with a housemate, Mr Cameron Turner. The route home took them along Middleton Beach Road.
At the trial in the District Court of Western Australia of the respondent's claim for damages, the appellant gave the only account of what happened when the respondent was struck. As noted earlier, the respondent had no memory of what had happened immediately before he was struck. Mr Turner was not called as a witness. He had, it seems, moved interstate before the respondent's action came to be tried.
At trial, and on appeal to the Full Court, reference was made to the absence of evidence from Mr Turner, it being submitted by the defendant in the action (the appellant in this Court) that Mr Turner's absence weakened the plaintiff's case. In the appeal to this Court, however, nothing turns on Mr Turner's not having given evidence. The appellant in this Court did not submit that the Full Court acted upon erroneous findings of fact.
The appellant said, in the evidence he gave at the trial, that he was driving along Middleton Beach Road when he saw a man standing on the side of the road. (It has always been accepted that the man the appellant saw was Mr Turner.) Because the man that the appellant saw was "moving around a fair bit like he had been…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Manley v Alexander [2005] HCA 79
Case
[2005] HCA 79
Decision Date
CaseChat Overview and Summary
This appeal concerned a claim for damages for personal injuries arising from a motor vehicle accident. The respondent, who was heavily intoxicated, was struck by a tow truck driven by the appellant on Middleton Beach Road in Albany, Western Australia. The respondent suffered serious injuries and had no recollection of the events leading up to the collision. The appeal was brought before the High Court of Australia following a decision by the Full Court of the Supreme Court of Western Australia.
The central legal issue before the High Court was whether the Full Court of the Supreme Court was justified in overturning the trial judge's decision regarding the appellant's negligence. Specifically, the court had to determine whether the appellant, in the circumstances, had exercised reasonable care in fulfilling his duty to other road users, particularly given the respondent's presence on the road carriageway and the appellant's momentary distraction by a third party on the side of the road.
The High Court allowed the appeal, finding that the Full Court had erred in its assessment of the facts and the application of legal principles. The court reasoned that the trial judge had properly considered the appellant's evidence, which indicated he was driving at a reasonable speed, had his attention drawn to a potentially erratic pedestrian on the roadside, and veered to the centre of the road to avoid that person. The appellant then observed something on the road, attempted to brake, and ultimately struck the respondent. The High Court concluded that the trial judge's finding that the appellant had not been negligent was open to him on the evidence.
Consequently, the High Court ordered that the appeal be allowed with costs, and that the orders of the Full Court of the Supreme Court of Western Australia be set aside. In their place, the High Court ordered that the appeal to the Full Court be dismissed with costs.
Orders
Orders of the court
1. Appeal allowed with costs;
2. The orders of the Full Court of the Supreme Court of Western Australia be set aside and in place thereof order that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
The question in this appeal is whether, in the particular circumstances of the case, an intermediate court of appeal was justified in taking a different view of substantially undisputed facts from that taken by the trial judge, and reversing his decision in an action for damages for personal injuries arising out of the driving of a motor vehicle. Facts and previous proceedings The respondent who was then about 29 years old spent about four hours until midnight on 6 October 2000 talking to a friend and drinking alcohol. Immediately afterwards he went to a nightclub in Albany where he remained until about 4 am. Among other people, he there met Mr Turner, who shared the house he owned and rented rooms in it from him. While he was there he continued to drink alcohol. When the respondent left the nightclub he and Mr Turner decided to walk home. Beyond walking for a period along a footpath with Mr Turner, the respondent has no recollection of the events of that early morning. He denied that he was intoxicated when he left the nightclub despite the fact that he had drunk about 12 small bottles of full strength beer between 8 pm and 4 am. Shortly after 4 am, the respondent was struck by a tow truck driven by the appellant on Middleton Beach Road, near its junction with Vine Street in the town of Albany. The respondent suffered serious injuries in the collision. He sued for damages in the District Court of Western Australia. Because the injuries sustained by the respondent in the collision have deprived him of any memory of the events immediately leading up to it, and because of Mr Turner's absence from the witness box, it is necessary to turn to the evidence of the appellant at the trial before the trial judge, O'Sullivan DCJ for an account of them.The appellant's evidence The appellant was an experienced driver of large vehicles. He was 22 years old. In the early morning of 7 October he answered a call to come to the assistance of a driver of a motor vehicle, but, on reaching the given location, found no vehicle there. On his return journey he proceeded along Middleton Beach Road at a speed of between 55 and 60 kilometres per hour. This is the appellant's account of the collision:"I was driving along Middleton Beach Road and there was a male standing on the side of the road which I spotted, so I was keeping my eye on the male because he was moving around a fair bit like he had been drinking. I was veering. The man didn't do any movements, nothing. He just stared at me through the windscreen of the vehicle, looking at me, didn't wave his hands or nothing like that. So I started to veer because I thought he was going to walk out. I started to veer to the centre of the road. Then I looked back on the road. I was braking this time – not at this time. I seen something laying on the road. I went to brake. I thought I shouldn't brake, so I lifted my foot off the thing and then I felt I ran over something. Once I went over what I ran over, I jammed on the brakes, put the emergency lights on the truck, so no-one else could run it over, rang 000, spoke to the Albany police station and told them that ... I grabbed a torch out of the truck, ran back to the victim, to the thing that was laying on the road. There was a male laying face down with his head facing towards the town. There was a lot of blood on the road."
Evidence
Evidence Before The Court
Because the injuries sustained by the respondent in the collision have deprived him of any memory of the events immediately leading up to it, and because of Mr Turner's absence from the witness box, it is necessary to turn to the evidence of the appellant at the trial before the trial judge, O'Sullivan DCJ for an account of them.The appellant's evidence The appellant was an experienced driver of large vehicles. He was 22 years old. In the early morning of 7 October he answered a call to come to the assistance of a driver of a motor vehicle, but, on reaching the given location, found no vehicle there. On his return journey he proceeded along Middleton Beach Road at a speed of between 55 and 60 kilometres per hour. This is the appellant's account of the collision:"I was driving along Middleton Beach Road and there was a male standing on the side of the road which I spotted, so I was keeping my eye on the male because he was moving around a fair bit like he had been drinking. I was veering. The man didn't do any movements, nothing. He just stared at me through the windscreen of the vehicle, looking at me, didn't wave his hands or nothing like that. So I started to veer because I thought he was going to walk out. I started to veer to the centre of the road. Then I looked back on the road. I was braking this time – not at this time. I seen something laying on the road. I went to brake. I thought I shouldn't brake, so I lifted my foot off the thing and then I felt I ran over something. Once I went over what I ran over, I jammed on the brakes, put the emergency lights on the truck, so no-one else could run it over, rang 000, spoke to the Albany police station and told them that ... I grabbed a torch out of the truck, ran back to the victim, to the thing that was laying on the road. There was a male laying face down with his head facing towards the town. There was a lot of blood on the road." He said that at the time the road was wet, but rain was not then falling. The headlights on the tow truck were functioning normally. The respondent was dressed in a black shirt and other dark clothing. The respondent admitted that at the time he had dark coloured hair. The appellant was cross examined on a written statement that he had made to a police officer. In it, he had said that light rain was falling at the time of the accident, and that his windscreen wipers were working intermittently. His attention was drawn to his omission to say in the statement what he had said in his evidence in chief, that one nearby street light was out and another was illuminated at the time. In the same statement, the appellant had said that he had kept his eye on Mr Turner for a couple of seconds to make sure "he wasn't going to step out in front of me". He admitted that, in consequence, he had taken his eyes from the road for a couple of seconds or so. Some brief reference may be made to some further evidence called on behalf of the respondent. It was given by Dr Chew who held a doctorate in philosophy in mechanical engineering from the University of Canterbury in New Zealand.
Decision
Reasons for decision
GUMMOW, KIRBY AND HAYNE JJ
CALLINAN AND HEYDON JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GUMMOW, KIRBY AND HAYNE JJ,
CALLINAN AND HEYDON JJ