Motor Accident Commission v WILLIAMS No. Scgrg-97-1263 Judgment No. S6679

[1998] SASC 6679

MOTOR ACCIDENT COMMISSION  v  WILLIAMS

Full Court
Coram:  Doyle CJ, Millhouse and Nyland JJ

Nyland J

This is an appeal against a decision of a District Court judge made on 13 August 1997. 

The respondent suffered personal injuries in a motor vehicle accident which occurred on 8 June 1993.  The driver of the vehicle involved in the collision was the respondent’s cousin Mark Leaney.  Leaney was originally sued as the defendant.  The Motor Accident Commission (MAC) is Leaney’s insurer.  MAC subsequently had itself substituted as defendant due to a perceived conflict between its interests and those of Leaney.

Leaney did not give evidence at the trial.  The only direct evidence relating to the circumstances of the accident was provided by the respondent.  He told the court that on the evening preceding the accident he and Leaney had been drinking at the local pub.  They left in the early hours of 8 June 1993.  The respondent described himself as not being in any fit state to drive but otherwise able to manage himself.  He had not spent the whole night with Leaney but did not see any reason to conclude that he was not fit to drive.  On the way home there was a discussion about Leaney going rabbit shooting the following night.  The respondent offered to show Leaney some likely areas on Conkar Plains and they detoured to a paddock.  The judge referred to the respondent’s evidence as what happened thereafter as follows:

"On the way up the farm drive, they stopped at the gate into the paddock on the left.  The plaintiff got out of the van and opened it.  He then got into the van again and directed Leaney as he drove through the paddock.  They went to a spot from which the headlights illuminated trees in the next paddock, which the plaintiff believed would be a good spot for shooting rabbits.  Then they returned.

The gate had been left open, as the plaintiff knew there was no stock in the paddock.  At the gate Leaney stopped the van and the plaintiff dismounted.  Leaney drove through the gate.  The plaintiff closed it.  As he did so, he saw that Leaney was driving slowly along the drive towards the farmhouse.

There had been no arrangement that he should do that.  The plaintiff recalls having mentioned that he often saw a fox at the next corner and speculated that Leaney may have been looking for it - but we do not know.

The plaintiff walked up the drive towards the still moving van.  That took him up a shallow rise.  As he did so, the van came to a halt.  The plaintiff continued to walk towards it, intending to get back in.  The van stopped about 30 metres south of the gate.  It was, of course, dark, though most witnesses recall a clear night.  It may be expected that there was heavy dew, but no one recalls rain.

The plaintiff intended to walk past the van on its left, to the left door.  He was walking along the drive.  As he got within a short distance of the van, he suddenly realised it was reversing.  He does not recall seeing brake lights come on, or go off.  He does not recall seeing reversing lights come on.  He said that the van was being reversed in gear.  He detected a change in engine noise.  Whether he detected that in the first instance, or whether it was something of which he later became aware, I am not sure.  He was adamant that it was not just a matter of the van rolling back down the hill.

He was examined and cross-examined in great detail about the next few moments.  I suspect that his eventual answers included some re-construction of details of what must have been a remarkably hectic half a minute in his life.

He was knocked backwards by the van.  It was suggested that he would have been leaning forward, as he walked uphill and would therefore have been struck on the upper body.  He agreed that that could have been so - but I do not think he knows.

He recalls his feet going under the van and his hands sliding down the back of the van clutching for anything that might stop him being dragged under.  He recalls getting a grip on something rather sharp - quite likely the upper edge of the rear bumper bar.  He recalls struggling to keep his head clear of the ground.

The van reversed to a position a little beyond the gate and also veered towards the right of the road - perhaps so that its headlights would point at the gate.  It stopped in that position.

Leaney alighted and called : ‘Where are you?’  The plaintiff replied: ‘I’m bloody under here!’   He was wedged under the van with his head and arms out, but the rest of his body under the van.  His legs were ahead of and near the right rear wheel.  He could smell, but did not then feel, burning.

Leaney tried to extricate the plaintiff, but could not.  It was agreed that Leaney would have to drive the van forward.  The plaintiff recalls asking Leaney to move his legs clear of the rear right wheel.  Leaney then drove forward and again stopped.  It was obvious that the plaintiff was injured.  He put his shirt, or jacket under the plaintiff’s head and drove off to the farmhouse for help."

Leaney woke the respondent’s wife.   She returned to the scene.  She realised the respondent was badly hurt.  She telephoned for an ambulance and also contacted the respondent’s sister, Miss Kluske, who lived close by.  The ambulance and police subsequently attended.  The respondent was taken from the scene to the Naracoorte hospital.  He was later transferred to the Mt Gambier hospital for a CAT-scan.  This demonstrated a fracture of C5.  The respondent was subsequently flown to the Royal Adelaide Hospital for treatment.

The judge accepted the respondent’s version as to the circumstances of the accident.  He found that Leaney had reversed the van and that it came in contact with the respondent who was dragged under the van for something like 20 metres.  He found that Leaney was negligent.  He did not find contributory negligence proved and ordered that the respondent recover 100% of his damages to be assessed.  In the course of the trial, however, it became apparent that Leaney had a different version of what had occurred which was to the effect that the respondent had fallen out of the van when drunk and had been run over.  All of the evidence which related to this version was however hearsay and was denied by the respondent.

On the hearing of this appeal the appellant submitted that the learned trial judge had erred in concluding that the respondent had discharged the burden of proof that his injury was as a result of the negligence of Leaney.  The appellant argued that the respondent’s version of how the accident occurred was inherently improbable and was inconsistent with the position of his body as observed by witnesses after the accident.  The evidence of Mrs Williams and Miss Kluske indicated that at the time they came on the scene the respondent was positioned with his feet facing a trough on the side of the road with his body at right angles to it and with his head on the road.  The appellant submitted that the evidence of the respondent indicated that immediately after the collision the reverse was the case, that is, that the respondent’s head was closest to the trough with his feet pointing to the gate.  In making this submission, the appellant placed considerable reliance on evidence which suggested the van reversed and veered across the road with its lights shining at the gate combined with the evidence of the respondent that he had not moved after the vehicle came to rest.  In my opinion, however, the evidence as to the respondent’s position is inconclusive.  There was no direct evidence that the lights were actually shining on the gate.  The respondent said that he thought while being dragged along that the driver was going to shine the lights on the gate.  There are also a number of passages of evidence which indicate that the respondent could not be specific about his position.  In one passage of his evidence, he described his body as being "at an angle". In other evidence he could not recall his position.  The respondent said that before Leaney left he endeavoured to put him into the vehicle.  Leaney eventually put his jumper under the respondent’s head.  The respondent said he could not recall whether Leaney had moved his body.  In any event, there appeared to be a sufficient period of time before the others arrived at the scene to permit of some movement by the respondent.  I therefore do not think that any of this evidence assists the appellant.

The appellant submitted that the evidence as to the burns suffered by the respondent also supported the contention that the scenario painted by the respondent was inherently improbable.  The appellant submitted that the burns were likely to have been caused by contact with the exhaust pipe which was on the left side of the van.  There is, however, a dearth of evidence concerning the exhaust pipe and its possible relationship to those injuries.  None of the medical witnesses gave oral evidence.  Mr Leitch, who treated the respondent at the Royal Adelaide Hospital, in his report described the injuries as "burns".  Mr Sach, a plastic surgeon, examined the respondent in 1995.  In his report dated 1 February 1996, he said:

"... it is reasonable to suggest that the positioning of the abraded areas to his shoulders, neck and medial left arm would certainly be consistent with abrasions.  However, an exhaust burn could not be excluded, but would not account for all the areas of scarring which were observed."

There was no other expert evidence which suggested that those particular injuries were only consistent with being caused by an exhaust pipe in the relevant position.  If they were abrasions they would be consistent with the nature of the accident described by the respondent.

The appellant criticised the learned trial judge for not drawing an adverse inference against the respondent for his failure to call Leaney who is his cousin. Mr Walsh QC described Leaney as being in the "camp" of the respondent. I have considerable difficulty with this submission. Leaney was initially the defendant in the proceedings. He is the person who on the respondent’s version is responsible for his injuries. Section 125a of the Motor Vehicles Act 1959 preserved the right of the appellant to call the insured even after the substitution of the insurer as defendant. It was therefore equally open to the appellant and the respondent to call Leaney as a witness. If Leaney had been called he may have supported the respondent or he may have supported the appellant. As he did not give evidence, what he would have said about the accident can only be a matter of speculation. At best, all that can be inferred from the respondent’s failure to call Leaney is that his evidence would not have supported the respondent’s case. I do not think this takes the matter any further.

Although there are some unsatisfactory aspects of the evidence, I think overall there was sufficient evidence to support the finding of the trial judge that Leaney was negligent.  I would not interfere with that finding.

The appellant further argued that the learned trial judge had erred in failing to find the respondent guilty of contributory negligence.  This argument was based on the evidence as to the respondent’s intoxicated state.  Mr Walsh suggested that the degree of intoxication might explain why the respondent did not take better care for his own safety and why he had not taken evasive action to avoid the reversing van.   The judge found, however, that the respondent only became aware of the movement of the van at the last moment and that "he did not have time to get out of the way".  That was a finding which was open on the evidence.  Having made that finding, the intoxication of the respondent was irrelevant.  That finding is conclusive of the question of contributory negligence.

There remains the appeal against the assessment of damages.  The appellant challenges the award of $100,000 for loss of future earning capacity.   At the time of the accident the respondent was employed as a farm labourer manager.  At the date of the trial the respondent was employed as a meat slicer and was earning more than he had as a farm manager.  That however is not the point.   The respondent is to be compensated for loss of future earning capacity. The judge found that the respondent was no longer able to work quickly or freely enough for it to be realistic to expect full time work in his former capacity although he found that there may be bits of part time work which a sympathetic employer could make available for him to work at his own pace.

The appellant challenged the judge’s conclusion as to the limitations on the respondent’s ability  to work on the farm and relied on the medical reports which suggested that the respondent was fit to return to his pre-accident work.  The appellant also challenged the finding that the respondent would still have his former job had the accident not occurred, as the employer’s references suggested that the respondent had been put off because he was no longer needed.  The appellant also pointed to the evidence of the theft by the respondent of hay before the accident, and cattle after it, as being relevant matters affecting the continuation of his employment.

At the date of trial the respondent was aged 40 years.  The unchallenged medical evidence was that he had a permanent physical impairment assessed at 20% of  normal function of his cervical spine as a result of the motor vehicle accident.  He also had a level of scarring as a consequence of his skin injuries assessed at 10%.  The judge clearly accepted the evidence of the respondent and his wife as to the difficulties the respondent encountered in carrying out farm work.  Although currently employed, the respondent’s work is casual and seasonal with less security than provided by his former employment.  The judge took into account that if the respondent were to lose his present job he would face great difficulty in finding work to which he was suited.  The judge took into account the matters put by the appellant and reached his conclusion on the whole of the evidence.  He postulated that the respondent was likely to lose about four years work over the next 25 years which would cover a number of short periods looking for work or one extended period towards the end of his working life. 

I am not persuaded that the judge fell into error in reaching that conclusion.  I think the award was generous but I do not think it was such as to require this court to interfere with it.  In my opinion the appeal should be dismissed.

Doyle CJ

In my opinion the appeal should be dismissed.  I agree with the reasons of Nyland J, and there is nothing that I wish to add to those reasons.

Millhouse J

I agree.