Murray's Transport v CGU Insurance
[2013] SASCFC 100
•9 October 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MURRAY'S TRANSPORT NSW PTY LTD v CGU INSURANCE LIMITED
[2013] SASCFC 100
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
9 October 2013
INSURANCE - CLAIMS GENERALLY - CLAIM BY THIRD PARTY WHERE INSURED ABSENT OR DEAD
INSURANCE - THE POLICY - CONDITIONS, WARRANTIES AND EXCEPTIONS - EXCLUSION CLAUSES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - EVIDENCE - ONUS OF PROOF AND SUFFICIENCY OF EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
The appellant, Murray's Transport NSW Pty Ltd, appeals against the dismissal of its action against the respondent, CGU Insurance Limited, the insurer of the driver of a Jaguar motor vehicle which collided with, and caused damage to, one of Murray's Transport's B-Double trucks. The driver of the Jaguar, Mr McFarlane, died in the collision and his estate is bankrupt. Murray's Transport brought this action directly against the insurer, pursuant to s 51 of the Insurance Contracts Act 1984 (Cth).
The Judge dismissed Murrray's Transport's claim because he held that the damage was caused by an event which was excluded from the scope of CGU's insurance policy. That event was that Mr McFarlane had intentionally caused the damage in that he deliberately collided with the B-Double truck in order to take his own life. Murray's Transport appeals against that finding.
Held (allowing the appeal):
(1) With the evidence having established that Mr McFarlane was liable to Murray's Transport because he either intentionally or negligently caused the accident, it fell on CGU to prove that the damage was intentionally caused and for that reason within the terms of the provision of the policy excluding from CGU's indemnity liability which had been intentionally incurred (at [10] (Kourakis CJ).
(2) The Judge erred in drawing the inference that Mr McFarlane deliberately brought about the collision (at [36] (Kourakis CJ), [94] (Gray J) and [114] (Nicholson J)).
(3) CGU has not discharged its onus to prove that Mr McFarlane deliberately caused the accident and therefore the damage to Murray's Transport's B-Double truck (at [39] (Kourakis CJ), [94] (Gray J) and [109] and [115] (Nicholson J)).
(4) Murray's Transport has discharged its onus to prove that the accident came about as a result of Mr McFarlane's negligence (at [86]-[87] (Gray J) and [129] (Nicholson J)).
(5) The parties consented to the Court determining the issue of contributory negligence in the event CGU was found liable. On the issue of contributory negligence, Murray's Transport's responsibility for the damage is fixed at a 15 per cent reduction in the award of damages (at [40]-[44] (Kourakis CJ), [95] and [106] (Gray J) and [131] (Nicholson J)).
(6) Appeal allowed; the order of dismissal in the District Court is set aside; and, CGU is to pay Murray's Transport 85% of the damage to Murray's Transport B-Double truck (at [45] (Kourakis CJ), [107] (Gray J) and [131] (Nicholson J)).
Insurance Contracts Act 1984 (Cth) s 51; Supreme Court Civil Rules 2006 (SA) 6R 100(5), referred to.
Munro, Brice & Co v War Risks Association Ltd & Ors [1918] 2 KB 78; Currie v Dempsey (1967) 69 SR (NSW) 116; Tsang Ping-Nam v The Queen [1981] 1 WLR 1462; Murray's Transport NSW Pty Ltd v CGU Limited [2012] SADC 172; Fox v Percy (2003) 214 CLR 118; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Holloway v McFeeters (1956) 94 CLR 470; Jones v Dunkel (1959) 101 CLR 298; Scholz v Standish [1961] SASR 123; Leahy v Beaumont (1981) 27 SASR 290; Billy Higgs & Sons Ltd v Badderley [1950] NZLR 605; Robinson v Glover [1952] NZLR 669; Dowsing v Goodwin [1977] NSWSC 551; Jockel v Jockel [1963] SR (NSW) 230; TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Doonan v Beacham (1953) 87 CLR 346; Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155; Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Stoeckel v Harpas (1971) 1 SASR 172(n); Walton v Rowbottom (Unreported, Supreme Court of South Australian, von Doussa J, 17 September 1986), considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"evidential onus", "evidential burden", "persuasive onus", "persuasive burden", "contributory negligence"
MURRAY'S TRANSPORT NSW PTY LTD v CGU INSURANCE LIMITED
[2013] SASCFC 100Full Court: Kourakis CJ, Gray and Nicholson JJ
KOURAKIS CJ: The appellant, Murray’s Transport NSW Pty Ltd (Murray’s Transport) appeals against the dismissal of its action against the respondent, CGU Insurance Limited (CGU), the insurer of the driver of a Jaguar motor vehicle which collided with, and caused damage to, one of Murray’s Transport’s B‑Double trucks. The driver of the Jaguar, Mr McFarlane, died in the collision and his estate is bankrupt for reasons which have an important bearing on the issue raised on this appeal. Murray’s Transport brought its action directly against the insurer, pursuant to s 51 of the Insurance Contracts Act 1984 (Cth).
The trial Judge dismissed Murray’s Transport’s claim because he found that the damage was caused by an event which was excluded from the scope of CGU’s insurance cover. That event was that Mr McFarlane had intentionally caused the damage in that he deliberately collided with the B-Double truck (the B-Double) in order to take his own life. It is against that finding which Murray’s Transport appeals.
The Judge’s findings are based largely on inferences from uncontested facts. After reviewing the evidence, I have concluded the Judge erred in drawing the inference that the deceased deliberately brought about the collision. The evidence does not establish, on the balance of probabilities, that Mr McFarlane intended to take his own life. The evidence certainly allows for the possibility that Mr McFarlane suicided, but it does not satisfy me, on the balance of probabilities, that he did so. On the other hand, neither am I persuaded that the collision was an accident. This is therefore one of those rare cases in which the onus is decisive. CGU accepts that it carries the onus of proving that the damage was intentionally caused. Having failed to do so, it follows that Murray’s Transport’s claim should have succeeded. The parties have consented to this Court determining the issue of contributory negligence in the event that CGU was found to be liable. I would fix Murray’s Transport’s responsibility for the damage at 15 per cent. My reasons for so holding follow.
The Onus
The allocation of the evidential and persuasive onus in an action can be difficult in the absence of clear authority. However, the principles in actions brought on insurance contracts are well settled. Subject to an express agreement to the contrary, the plaintiff carries the persuasive onus of proving that his or her circumstances fall within the broad promise of indemnity or assurance given by the insurer, whilst the insurer carries the burden of establishing exceptions to the primary promise.[1] Whether a given event or circumstance is an essential element of the promise or an exception is a matter of substance to be determined by a construction of the policy as a whole. Therefore, if the scope of the qualification is such that it negates an aspect of the promise, the onus is on the plaintiff to show that his or her circumstances come within the promise so qualified.[2]
[1] There is a long line of authority to that effect stretching from the decision of Bailhache J in Munro, Brice & Co v War Risks Association Ltd & Ors [1918] 2 KB 78, 88-89. The rationale appears to be a combination of pleading rules and the unfair burden which would be imposed on the claimant.
[2] Munro, Brice & Co v War Risks Association Ltd & Ors [1918] 2 KB 78.
The principles governing the assignment of the evidential and persuasive onus in particular claims have evolved out of the common law rules of pleading and pragmatic concerns about which party should carry the risk of failing for want of evidence.[3] The assignment of the onus has often been said to depend on whether the circumstance is an essential element of the cause of action or a qualification or proviso, the plaintiff carrying the persuasive onus on the former characterisation and the defendant on the latter.
[3] Ibid.
In Currie v Dempsey,[4] Walsh AJ articulated a contemporary statement of the principle in these terms:
[T]he burden of proof in the sense of establishing a case, lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, eg, if its existence if a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of actions, but is one which, if established, will constitute a good defence, that is, an “avoidance” of the claim which, prima facie, the plaintiff has.
The statement directs attention to an identification of the legal rule by which the obligation or right in dispute is imposed or conferred as the case may be.
[4] (1967) 69 SR (NSW) 116.
By that enquiry, the necessary and sufficient conditions which a plaintiff must establish to obtain the relief sought, and any matter by way of avoidance or defeasance which a defendant must prove will be identified.
The approach articulated by Walsh AJ transcends the semantic characterisation of a term as an exception or qualification; framing the question in terms of the elements of the right or obligations in question is likely to yield more principled and predictable solutions to undecided questions.
CGU’s insurance policy relevantly includes a promise “to cover you … for legal liability if your vehicle … is involved in an accident that causes loss or damage to someone else’s property”. I will refer to that term as the primary insurance clause. A note at the foot of the policy directs the insured to “exclusions to this cover” appearing on subsequent pages. The exclusion relevant to this matter is a clause which provides, “we will NOT cover any … liability deliberately caused by you”.
In accordance with authority, the primary insurance clause confers on the insured a right to insurance cover on proof of a legal liability arising out of the involvement of the insured’s vehicle in an incident which causes damage to another. The exception confers on CGU a privilege against meeting that liability if it is deliberately incurred. The onus of proving the circumstances enlivening the right and privilege fall on the insured and the insurer respectively.
In this case the assignment of an onus is further complicated by the terms of s 51(1) and (2) of the Insurance Contracts Act 1984 (Cth) which provides:
51Right of third party to recover against insurer
(1) Where:
(a)the insured under a contract of liability insurance is liable in damages to a person (in this section called the third party);
(b)the insured has died or cannot, after reasonable enquiry, be found; and
(c)the contract provides insurance cover in respect of the liability;
the third party may recover from the insurer an amount equal to the insurer’s liability under the contract in respect of the insured’s liability in damages.
(2) A payment under subsection (1) is a discharge, to the extent of the payment, in respect of:
(a)the insurer’s liability under the contract; and
(b)the liability of the insured or of the insured’s legal personal representative to the third party.
I would construe the term “insurer’s liability under the contract” in s 51(2)(a) of the Insurance Contracts Act to refer to the insurer’s prima facie liability under the primary insurance clause irrespective of any exceptions to that liability. That is to say, the third party may establish that the insurer is liable under the contract within the meaning of s 51 of the Insurance Contracts Act without excluding, by evidence, the operation of an exception because, unless the insurer establishes its privilege or immunity, proof of the circumstances to which the primary insurance clause responds is sufficient to establish the insurer’s liability.
The Evidence
The collision occurred at about 3.04 pm on 16 June 2008 on the Dukes Highway near the small town of Yumali located in the south-east of the State of South Australia. The approximate point of impact was about 300 metres east of the crest of a small hill on the outskirts of Yumali. At the point of impact the Dukes Highway is a bitumen road in good condition which runs approximately east-west. The B‑Double was being driven by Mr Murray in an easterly direction in the northern carriageway of the Dukes Highway. In the vicinity of the collision the eastbound, northern, carriageway is about 3.7 metres wide. Mr McFarlane was driving his Jaguar in a westerly direction. The southern, westbound, carriageway is 3.5 metres wide.
Mr Hall, an engineer called by CGU provided a report which was received into evidence. The report sets out the relevant features of the Dukes Highway either side of the approximate point of impact. Approximately 600 metres east of the approximate point of impact the Dukes Highway curves to the south, requiring a left hand turn for a vehicle travelling in the westerly direction travelled by the Jaguar. At approximately 400 metres east of the approximate point of impact, the road curves to the north requiring a turn to the right for a vehicle driven in the direction of the Jaguar. From that point the Dukes Highway rises on a gradual incline as it curves to the north. Whilst negotiating that curve a vehicle travelling in the southern, westbound, carriageway tends to drift more strongly to the south (the left hand side of the Dukes Highway).[5]
[5] Chris Hall report, dated 4 June 2009, page 6, not contested.
At the point from which there was a clear line of sight between the vehicles, they were about 400 to 500 metres apart, and about 200 metres either side of the approximate point of impact.
The northward bend in the Dukes Highway, just east of the approximate point of impact, can be seen in photographs P1 and P4 in the report of Mr Hall. It can also be seen in the photograph marked PO2 in the report of another engineer, Mr Axup, who was called by Murray’s Transport. The photograph PO2 shows a police car positioned next to a road sign. It can be seen from the photographs PO3 and P10 that after the collision the B-Double came to rest straddling across both carriageways of the Dukes Highway just to the east of the road sign, and that the Jaguar came to rest on the verge just to the west of the road sign. The commentary to P10, which is attached to the witness statement of the Police Officer Liebich, confirms that that is so. Photograph P12 in Mr Axup’s report shows that the point of impact was in the north, eastbound, carriageway, at a point between the resting places of the B-Double and the Jaguar. It follows that the approximate point of impact lies close to the end of the northward bend in the road.
Indeed Mr Axup expressly reported as much when he described photograph PO2 as showing:[6]
A view east along the Dukes Highway, east of the collision site showing the gentle curvilinear alignment of the road. The alignment would require an active steering movement to keep a vehicle on the sealed pavement through the curves.
[6] David Axup report, dated 16 June 2008, page 4.
Mr Axup’s commentary on PO2 is also consistent with the layout of the highway on the approach from the east as it is described by Mr Hall and shown in the police photographs.
Mr Murray testified in evidence-in-chief that he first saw the Jaguar as he came over the crest of the hill when, on his estimate, it was between 200 to 300 metres away. Mr Murray testified that he could not recall if the B-Double and Jaguar were equidistant from the point of impact when he first saw the Jaguar. Mr Murray described the Jaguar straddling the centreline to the extent that it was two-thirds on his side of the highway. He testified that the Jaguar then drifted further onto his side of the road. Mr Murray took his foot off the accelerator thinking that the Jaguar might have been overtaking another vehicle. When he realised that the Jaguar was not overtaking and was going to stay in his carriageway, he braked. Mr Murray also swerved to the left hand side of his carriageway as far as he could to avoid the collision. In cross-examination, Mr Murray acknowledged that he did not sound the horn.
In cross-examination, Mr Murray accepted that the Jaguar may have been as far as 500 metres east of his position when he first saw it. However, the cross-examination was premised on Mr Murray seeing the Jaguar as soon as his B-Double came over the crest of the hill. Whether or not that was so would of course depend on a number of factors that it is not now possible to know. Importantly, the trial Judge observed that Mr Murray appeared to be a suggestible witness. Care must therefore be taken in acting on Mr Murray’s acceptance of propositions put in cross-examination which are based on undisclosed premises.
Mr Murray gave evidence that it did not occur to him that there might be a collision when he first saw the Jaguar. He initially testified that he watched the Jaguar maintaining its position straddling the centre lane for about 50 metres before it moved even further into his carriageway. Assuming that Mr Murray was talking about the distance travelled by the Jaguar, and not the reduction of distance between the B-Double and the Jaguar, it would have taken approximately two seconds for the Jaguar to traverse the distance of about 50 metres. Later, Mr Murray testified that the Jaguar might have travelled a distance of 50 to100 metres whilst straddling the centreline, before drifting further into his carriageway. A distance of 100 metres would have been travelled in about four seconds.
In cross-examination Mr Murray agreed, but without any great conviction in the way he answered the questions, that the B-Double and the Jaguar may have been about 300 metres apart when he saw the Jaguar straddling the lanes for 50 to 100 metres. He later said that it was probably closer to 200 metres and explained that he found it hard to estimate the distance.
Mr Murray was asked if the movement of the Jaguar into his carriageway was “erratic”. He answered in the negative. It was also put to him that the movement was a deliberate movement to the right and he agreed. Nonetheless, he described the Jaguar as “drifting” to the right.
Plainly enough, Mr Murray could not give any admissible evidence as to the intention of Mr McFarlane. I understand his evidence to refer to the movement of the Jaguar as observed by him. In effect, his evidence was that the Jaguar did not turn sharply from its position straddling the centreline when it moved to the right to be fully within the east bound carriageway. I understand his evidence to be that the Jaguar deviated gradually from its direction of travel along the centreline into the eastbound carriageway.
On that description of the Jaguar’s path, Mr Axup gave the following evidence, in cross-examination, about the steering input required from Mr McFarlane to keep the Jaguar on its path:[7]
[7] T75-76.
QMr Murray then describes the Jaguar as maintaining that position on the two-thirds line for about 150 metres.
ACorrect.
QSo that would require a positive steer to maintain that constant direction.
AThe Jaguar is a curvilinear alignment, so therefore it would require a constant angle of variation of the angle of the steer to keep it in that path.
QBecause of the curvature of the road and the alignment of the car at that time.
ACorrect, yes.
QOtherwise it wouldn’t continue in that straight direction.
AI think referring to a straight direction is not correct because it is actually within a curve. And its following a curved alignment, so therefore the wheels at the front of the vehicle must be turned slightly to enable it to follow that curved alignment and it is usually a conscious effort on the part of the driver.
QA conscious effort to maintain the position. Mr Murray then says that the Jaguar then made a further movement this is after completing the 50-100 m of going straight to the two-thirds mark. He then moved to the right to move wholly in the eastern lane.
AYes.
QThat would obviously require a steering input to the right.
AIt would require some steering input, yes.
Mr Axup’s testimony is consistent with the alignment of the road described by both him and Mr Hall in their reports to which I referred in [13]-[17] above.
The evidence of both engineers, the police photographs and Mr Murray’s testimony show that when the Jaguar was straddling the centreline it was still negotiating the curve to the north, just east of the approximate point of impact.
It follows that I would reject the contention of the appellant, raised by an amendment to the grounds of appeal during oral argument, that the Judge erred in treating the evidence of both Mr Axup and Mr Hall as expressing the same opinion on the steering input which was required to keep the Jaguar on the path observed by Mr Murray. The evidence to which I have referred establishes that positive steering input was required to hold the Jaguar on its path as it straddled the centreline over a distance of between 100 and 200 metres. Whilst negotiating the curve to the north the Jaguar’s westbound inertia operated as a centrifugal force, tending to move it to the south, back into the westbound carriageway. A positive steering input was needed to counter that tendency. Of course it is not uncommon for drivers to “cut the corner” by oversteering and thereby reducing the effect of the centrifugal force. Indeed, that very tendency is a reason a motorist might straddle the centreline.
Neither of the experts was questioned about the effect of the camber on the road and whether that might have caused the Jaguar to move into the path of the oncoming B-Double. I would expect the engineers to have taken the camber into account when considering the steering input which would have been required.
Be that as it may, on the evidence of both engineers, on which this Court must proceed, further steering input to the right was necessary to cause the Jaguar to drift completely into the eastbound carriageway for oncoming traffic.
However, the conclusion that steering input was required to both maintain the Jaguar on its curvilinear path, and that further steering input was required to move it into the eastbound carriageway, says very little about whether that input was voluntary and intentional. Positive steering input can be maintained and changed unintentionally or without awareness of any impending danger by a driver who is distracted, day dreaming or even dozing off. Head on collisions do occur because cars deviate across the centreline of roads because of driver fatigue or because the driver is distracted.
The evidence concerning the movement of the vehicles before the collision cannot, of itself, exclude the possibility of an accident. The respondent’s case must therefore rely heavily on what was said to be Mr McFarlane’s motive to take his own life, and it is to that issue which I now turn.
Motive
Mr McFarlane was 75. He had retired as an accountant in 2005.
After Mr McFarlane’s death it was discovered that over a long period of time he had defrauded many persons who had entrusted him to invest substantial amounts of their money. It was accepted at trial that Mr McFarlane operated a “Ponzi scheme” for many years before his death. His estate was bankrupt. The estate was indebted to investors in the sum of about $17 million and in the further sum of about $3.3 million to banks. In the financial year 2007/2008, Mr McFarlane received about $2.1 million in funds from investors but paid out, as a return to earlier investors, approximately $2.3 million. There was a net deficit in the trust’s activities for that of about $162,000. Of the amounts paid out, approximately $278,000 was paid to Mr McFarlane’s son. In the same financial year, Mr McFarlane incurred personal expenses in the sum of about $265,000. To fund these deficits Mr McFarlane drew down on his loan facilities with the National Australia Bank. In the financial year 2007/2008, $463,747 was paid into his trust account from his National FlexiPlus Mortgage-Portfolio Package. As at 8 July 2008, his National FlexiPlus Mortgage-Portfolio package was $2,761,608.67 overdrawn.
Ponzi schemes necessarily have a limited life because the fraudster eventually exhausts his sources of trusting victims. Mr McFarlane’s retirement from practice would necessarily have limited, at least to some extent, his capacity to find new victims. Moreover, as time goes on the demands from investors for the return of their capital increase. That Mr McFarlane’s scheme was reaching its “maturity” is evidenced by his need to borrow $463,747 in the financial year before his death. All of those circumstances support an inference that, before his death, Mr McFarlane was at least aware of the significant risk that his fraud would be discovered. On the other hand, there was no evidence that any charges had been laid or that a complaint had even been made. It is notorious that hope springs eternal for persons who commit frauds such as Mr McFarlane’s. The evidence does not allow for any firm conclusion about how concerned Mr McFarlane might have been that his fraud might soon be discovered.
Evaluation of Competing Inferences
The evidence raises competing inferences. The circumstances of the collision are consistent with inattention or fatigue. They are also compatible with suicide. The fact that Mr McFarlane maintained a course of travel consistent with the bend in the highway for as long as he did, and that there was a further steering input almost immediately before the collision, raises a suspicion of suicide.
The evidence as to Mr McFarlane’s possible motive is circumstantial. The trial Judge had no material advantage over this Court in evaluating the evidence. I acknowledge that there is room for different assessments to be made and I have taken into account the finding of the trial Judge in my evaluation of the evidence. The circumstantial evidence of Mr McFarlane’s motive strengthens the suspicion I harbour. However, I feel no conviction or satisfaction on the balance of probabilities that Mr McFarlane suicided. I have concluded that the Judge erred.
On the other hand, because of the suspicious circumstances to which I have referred, I am not satisfied that the collision was not the result of Mr McFarlane’s intentional conduct. In particular, I am not persuaded that Mr McFarlane did not intend to suicide because of his failure to take measures which would have more effectively ensured his death, over and above driving into an on-coming B‑Double. I am also not satisfied that the accident was caused because Mr McFarlane suffered a cardiac irregularity. That possibility is largely speculative, and conjecture as to whether he could reasonably have taken steps to avoid the collision by appreciating the condition he was in and pulling over, even more so.
I am satisfied that the damage was not the result of an inevitable accident. In particular, I am satisfied that it was not caused by a cardiac irregularity, or any other cause, which Mr McFarlane could not reasonably have been expected to avoid. It follows that Murray’s Transport has proved that the policy responded to the circumstances of this incident because the scope of the primary promise extends to liability whether intentionally or negligently caused. This is not one of those peculiar cases in which the proponent in an action attempts to establish its case by proving that one or other of two mutually exclusive, but sufficient, sets of circumstances, neither of which standing alone has been satisfactorily proved, must have existed.[8] Having excluded the only hypothesis which does not fall within the cover clause of the policy, it is not necessary that Murray’s Transport prove on the balance of probabilities that it was one and not the other of the two causes, intentional or negligent, which are covered by the policy.
[8] Tsang Ping-Nam v The Queen [1981] 1 WLR 1462.
CGU having failed to discharge the onus of establishing the exemptions to the primary insurance clause by showing that the damage was intentionally caused, Murray’s Transport was wrongly denied judgment in its favour. I would therefore allow the appeal.
Contributory negligence
The Judge dealt with the issue of contributory negligence in this way:[9]
This was only faintly suggested, and in view of Mr Murray’s evidence that he slowed as soon as he saw the Jaguar, and he braked as soon as he realised that a collision was imminent, I do not think that contributory negligence has been established. Mr Burnett submitted that it might only have been relevant had Mr McFarlane been blinded by sunlight. Having regard to the view I take, that issue does not arise.
[9] Murray’s Transport NSW Pty Ltd v CGU Limited [2012] SADC 172, [57].
The respondent did not cross-appeal on this issue, taking the view that the trial Judge had not made a definitive finding. The appellant does not object to this Court determining for itself whether or not CGU has established any contributory negligence on the part of Mr Murray, and vicariously Murray’s Transport, save that it reserves its position on the question of costs.
My “open” finding as to the competing causes of the collision makes a consideration of contributory negligence problematic. That is so because the question on this issue is whether any negligence on the part of Mr Murray contributed to the damage caused to the B-Double and that may depend on whether Mr McFarlane was committed to bringing his life to an end or was merely temporarily distracted or asleep. Even though CGU bears the onus of proving the facts necessary to support a finding of contributory negligence, it would appear to be paradoxical to deny its claim for a reduction for contributory negligence on the basis that no action on the part of Mr Murray could have avoided the damage Mr McFarlane was determined to commit when CGU’s defence, based on the intentional damage exclusion, has been dismissed. That is all the more so when Murray’s Transport’s position on that question was to deny that Mr McFarlane intended to suicide. However, that is simply a product of the onus of proof.
The paradox to which I referred is most acute when considering whether sounding the B-Double’s horn might have avoided the collision. On the view I take of the facts, I am largely able to avoid the paradox. To my mind, the failure of Mr Murray to start applying pressure to the brakes as soon as he saw the Jaguar was negligent. An oncoming car straddling well over the centre line of a country highway just several hundred metres, and a handful of seconds, away is a serious and imminent danger. There was no reasonable basis to assume for more than a moment that the Jaguar was overtaking something else on the road. If Mr Murray had immediately applied pressure to the truck’s brakes, he could have more heavily decelerated as the Jaguar and the risk of collision bore on him. Moreover, having slowed the truck, the capacity to move even further towards, if not onto, the verge would have increased. Mr Murray was plainly a skilled driver. It is probable that but for his initial complacency Mr Murray would have slowed and re-positioned the B-Double reducing, significantly, the extent of the damaging forces operating on impact, irrespective of Mr McFarlane’s intentions when veering across the road.
It is not possible, nor is it necessary, to be precise about what may have been achieved. However, I am satisfied that both the nature of Mr Murray’s negligence and the damage he failed to avoid should result in a 15 per cent reduction in the award of damages.
Conclusion
I would:
1 Allow the appeal.
2 Set aside the order of dismissal made in the District Court.
3Order instead that CGU pay Murray’s Transport 85 per cent of the damage to Murray’s Transport’s B-Double.
GRAY J.
On 16 June 2008, at approximately 3.04 pm, a collision occurred between a B‑double semi-trailer driven by Brett Kenneth Murray and a Jaguar motor vehicle driven by Allan McFarlane. The defendant and respondent, CGU Insurance Limited, was the comprehensive motor vehicle insurer of the Jaguar motor vehicle. The plaintiff and appellant, Murray’s Transport NSW Pty Ltd, was the owner of the B‑double semi-trailer. Murray’s Transport claimed directly against CGU Insurance pursuant to section 51 of the Insurance Contracts Act 1984 (Cth).[10]
[10] Section 51 provides:
(1)Where:
(a) the insured under a contract of liability insurance is liable in damages to a person (in this section called the third party);
(b) the insured has died or cannot, after reasonable enquiry, be found; and
(c) the contract provides insurance cover in respect of the liability;
the third party may recover from the insurer an amount equal to the insurer’s liability under the contract in respect of the insured’s liability in damages.
(2)A payment under subsection (1) is a discharge, to the extent of the payment, in respect of:
(a) the insurer’s liability under the contract; and
(b) the liability of the insured or of the insured’s legal personal representative to the third party.
(3)This section does not affect any right that the third party has in respect of the insured’s liability, being a right under some other law of the Commonwealth or under a law of a State or Territory.
Following a trial in the District Court, the Judge concluded that CGU Insurance was entitled to the benefit of an exemption clause in the relevant policy of insurance. This resulted from CGU Insurance satisfying the Judge that Mr McFarlane, its insured, had deliberately driven his motor vehicle into the path of the B‑double semi-trailer in order to commit suicide. As a consequence, Murray’s Transport’s claim was dismissed. In this appeal, Murray’s Transport challenged this conclusion.
The Pleaded Cases
By its amended statement of claim, Murray’s Transport pleaded as follows:
4.At or about 3:04pm on 16 June 2008 the Plaintiff’s prime mover and trailer were travelling in an easterly direction on the Dukes Highway, approximately 300 metres east of Yumali, in the State of South Australia.
5.At that time and place the Jaguar was travelling in a westerly direction over the centre line approaching the Plaintiffs [sic] prime mover and trailer and collided with the Plaintiff’s prime mover and trailer.
6.The collision referred to in paragraph 5 herein was caused by the negligence of the driver of the Jaguar, particulars of which are:
6.1 failing to keep any or any proper look out;
6.2 failing to exercise reasonable care, skill or jp@Pasudgment in the management and control of the Jaguar motor vehicle;
6.3 driving without due care and attention;
6.4 causing or allowing the Jaguar to cross into the path of travel of the Plaintiff’s prime mover and trailer when it was unsafe and/or dangerous to do so;
6.5 failing to keep to the left of the road;
6.6 failing to keep to the left of oncoming vehicles; and
6.7 failing to keep to the left of the centre of the road and/or the dividing line in the middle of the road.
By its defence, CGU Insurance responded to these pleas as follows:
6.The defendant admits the allegations set out in paragraph 4 of the statement of claim.
7.As to the allegations set out in paragraph 5 of the statement of claim, the defendant admits that a collision occurred between the prime mover and the Jaguar.
8.The defendant says that the collision was deliberately caused by the driver of the Jaguar steering his vehicle into the path of the prime mover.
CGU Insurance did not plead a defence of inevitable accident and did not raise any factual plea concerning any form of cardiac event being suffered by Mr McFarlane.
On the pleaded cases, it may be discerned that there was no dispute that at the time of collision, the Jaguar was on its incorrect side of the road. On Murray’s Transport’s case, the fact that the Jaguar was on its incorrect side of the road was a particular of negligence. On CGU Insurance’s case, the conduct of Mr McFarlane in driving the vehicle onto the incorrect side of the road was deliberate, bringing the conduct within the contractual exemption clause.
The Established Facts
The collision occurred on the Dukes Highway on the outskirts of Yumali, a small township about 160 kilometres south-east of Adelaide. Mr Murray was travelling east and leaving the township of Yumali, at which point the Dukes Highway rose to the crest of a small hill and then extended on a gentle decline for a distance of about 800 metres. The carriageway was sealed bitumen with gravel-bitumen shoulders. The police report indicated that the carriageway for eastbound traffic was 3.6 metres wide with a shoulder of 3.5 metres, and the carriageway for westbound traffic was 3.5 metres wide with a shoulder of 5.0 metres. Mr McFarlane was travelling west toward Yumali and Adelaide.
Both vehicles were in a sound mechanical condition. No other vehicles were in the vicinity. The weather conditions were good. It was a bright, sunny day. The road surface was dry and in good condition.
As Mr McFarlane approached Yumali, he traversed a left hand bend, followed by a right hand bend. As the Jaguar came out of the right hand bend, Mr McFarlane had a clear westerly view for a distance of about 400 to 500 metres. The road over this distance was essentially straight, rising slightly to the crest of a hill.
There was no evidence before the Court as to the manner in which Mr McFarlane traversed these bends other than the observation made by Mr Murray that when he first saw the Jaguar, it was coming out of the right hand bend, partly on its incorrect side of the road.
As the B‑double semi-trailer proceeded east from Yumali, it travelled on its correct side of the road and approached the crest of the earlier referred to hill. As the B‑double semi-trailer came over the crest, Mr Murray had a clear view to the east for a distance of about 400 to 500 metres.
The collision between the vehicles occurred about halfway along the stretch of road between the crest of the hill and the earlier referred to right hand bend. The point of impact was determined to be entirely on Mr Murray’s carriageway, that is, entirely on the incorrect side of the road for Mr McFarlane’s direction of travel.
Mr Murray was driving at about 90 kilometres per hour. As he drove over the crest of the small hill on leaving the township of Yumali, he observed the Jaguar approaching at a reasonable speed. He first saw the Jaguar travelling towards him and about 500 metres away. The Jaguar was straddling the broken white line in the centre of the carriageway and about two thirds on its incorrect side of the road. Mr Murray took his foot off the accelerator and covered the brake. He continued to observe the approach of the Jaguar as it proceeded to drift further to the incorrect side of the dividing line, eventually moving entirely onto its incorrect side of the road. In evidence, Mr Murray described the Jaguar as “drifting” completely onto its incorrect side of the road. In particular, he gave the following evidence:
Q.As you drove on, and on your evidence kept your eye on the other car, can you explain to his Honour what it was first of all that you saw the other car doing.
A.It was - it had drifted onto my side of the road and I initially thought, wondered whether it was overtaking anything but there was no vehicle there to be overtaking at all.
In cross-examination, Mr Murray gave the following evidence:
Q.I think your evidence-in-chief was that the Jaguar drifted, in the sense you mean he steered to the right-hand side.
A. More drifted.
Q. But with a steer in that direction.
A. Yes, right-hand motion, direction.
Q. By 'drifted' you mean he didn't do a violent turn.
A. No.
Q. But more a constant turn to the right.
A. Yeah, constant angle you would say, I suppose.
Q. Constant angle turn.
A. Yes.
Q. To be fully within your lane.
A. There was nothing erratic.
About two to three seconds before impact, Mr Murray realised that there might be a collision, applied his brakes heavily and swerved to the left. The Jaguar continued on its course without any apparent change of speed. The vehicles collided head on, although slightly offset. The right front of the Jaguar came into collision with the right front of the B‑double semi-trailer. This was a result of Mr Murray’s move to the left. The major damage was to the right hand side of the Jaguar. The speedometer of the Jaguar recorded a speed of 100 kilometres per hour.
Mr McFarlane died at the scene as a result of injuries sustained in the collision. His body remained in the driver’s seat with the lap sash seat belt properly fitted and attached.
Mr McFarlane was a 75 year old male with a past medical history of type 2 diabetes, high cholesterol and high blood pressure. A post-mortem examination revealed that Mr McFarlane had sustained multiple injuries including extensive fractures to the ribs and spine and a subarachnoid haemorrhage. The cause of death was said to be the result of the multiple injuries sustained. The examination also revealed that Mr McFarlane had an enlarged heart with left ventricular hypotrophy and moderate coronary artery atherosclerosis. The forensic pathologist considered that it was possible that Mr McFarlane may have experienced an acute cardiac event which could have precipitated the collision. A toxicology analysis disclosed the presence of a therapeutic concentration of the drug Ditiazem in Mr McFarlane’s blood. The toxicology analysis did not disclose the presence of any alcohol, amphetamines, benzodiazepines, cannabinoids, morphine or other common drugs.
Mr McFarlane carried on business as an accountant. An examination of his affairs revealed that he had received money from investors. These monies were paid into an unaudited account that was regularly overdrawn. An examination of the account revealed a pattern of deposits promptly followed by withdrawals. Mr McFarlane had used funds from the account to meet his personal expenses. The examination further revealed that Mr McFarlane was systematically using funds from one investor to repay other investors. In short, Mr McFarlane was engaging in dishonest dealings with investors’ funds.
The Judge identified the substantial issue in the trial as being whether CGU Insurance had proved that the damage to the B‑double semi-trailer was caused by the deliberate acts of Mr McFarlane. The Judge summarised the submissions of the parties as follows:[11]
[11] Murray’s Transport NSW P/L v CGU Insurance Ltd [2012] SADC 172, [46]-[56].
The defendant points to the following factors in favour of its case that the actions of Mr McFarlane were deliberate:
•the position of the Jaguar on the road when Mr Murray first saw it, its continuing in that position for 50 to 100 metres, and its further movement into the incorrect lane all suggest that Mr McFarlane was deliberately steering the car in that fashion to achieve a collision;
• Mr McFarlane took no evasive action prior to the collision;
•had Mr Murray not taken evasive action, the collision would have been even more severe than it was;
•Mr McFarlane’s financial and legal position provided a motive to commit suicide.
The plaintiff argued that there were several other explanations for what happened which are no less compelling than the suggestion of suicide.
[Counsel for Murray’s Transport] argued that the evidence of Mr Axup was that, at the time of the collision, the sun was at an angle of only 18 degrees above the horizon, and at an angle of only one degree left of his line of travel (Exhibit P10, p 13). As to this, Mr Axup was relying on Google Maps for the line of travel – this was not accurately surveyed at the scene. Mr Axup also noted that it was a ‘bright sunny day’ if the police photographs were an indication. [Counsel for Murray’s Transport] argued that blinding from sun glare was a possible explanation for Mr McFarlane’s driving.
I note there is no evidence one way or the other about whether Mr McFarlane was attempting to shield his eyes with the car sun visor, or his hand, or otherwise.
[Counsel for CGU] argued that this suggestion was purely speculative, and bore little weight without further evidential support. He argued that if the cause was sun glare, Mr McFarlane was still able to maintain appropriate steering input to negotiate the curve in the road and the camber of the road without apparent difficulty. If a driver was unable to see over such a long distance, he might be expected to slow down or stop, rather than proceed at about 100 kilometres per hour.
[Counsel for Murray’s Transport] also raised the possibility that Mr McFarlane might have suffered an acute heart event at the time of driving.
This submission is based on the post-mortem report of Dr Karen Heath (Exhibit P7). Dr Heath reported that there was no evidence of acute cerebrovascular accident (stroke). She also recorded, at page 2 of her report:
Other findings at autopsy included an enlarged heart with left ventricular hypertrophy and moderate coronary artery atherosclerosis, uncomplicated cholelithiasis and diabetic and hypertensive nephropathy. Whilst it is possible that the deceased may have experienced some acute cardiac event which may have precipitated the vehicle accident, this possibility cannot be confirmed or excluded by post-mortem examination.
(my emphasis)
There is no positive evidence that Mr McFarlane suffered some sort of heart attack. He was not seen slumped at the wheel, or clutching his chest, as sometimes occurs.
[Counsel for Murray’s Transport] argued that an acute heart event was a possibility, along with sun glare and suicide. These are all competing possibilities, he said, and there is nothing to say that one has any greater weight than either of the others.
[Counsel for Murray’s Transport] pointed out there was no positive evidence of suicide: no note, no evidence of suicidal ideation, no sudden swerve towards the B-double at the last moment, no removal of his seatbelt, no expert psychiatric opinion that he was suicidal. He pointed out that the aggressive tone in Mr McFarlane’s letter to his sister dated 13 June 2008 (Exhibit D37), only three days earlier, shows no pangs of conscience or stress at his financial and legal situation.
[Counsel for Murray’s Transport] argued that each of these factors diminishes the weight to be given to the inference of suicide from Mr McFarlane’s behaviour. He contrasted this case with the factual situation in Rail Corporation NSW v Vero Insurance Ltd (supra), where the psychiatric factors were more strongly suggestive of suicide than they are here. However, in that case the driving of the deceased was equivocal, and that is not the case here.
The Judge then reached his conclusions in the following terms:[12]
Adopting the test proposed by Thomas J in Clark v NZI Life Limited (supra), that the onus of proving that the damage was caused deliberately is on the insurer, the defendant, and is on the balance of probabilities, taking into account the words of Dixon J in Briginshaw (supra), but not ‘at the top end of the range’, in my view the clear preponderance of probability is in favour of the proposition that Mr McFarlane drove as he did with the intention of committing suicide, and, in the sense explained earlier, that the damage to the plaintiff’s vehicle was caused deliberately by Mr McFarlane.
That being so, the exclusion clause contained in the policy has been satisfied, and the action pursuant to s 51 of the Insurance Contracts Act must fail.
For those reasons, the plaintiff’s claim is dismissed.
[12] Murray’s Transport NSW P/L v CGU Insurance Ltd [2012] SADC 172, [60]-[62].
Cardiac Event
It is to be noted that the Judge made no finding that Mr McFarlane suffered an acute cardiac event. This is unsurprising, given the evidence on the topic. In the above findings, the Judge extracted the relevant portion of the pathology report. It is to be noted that, while the pathologist acknowledged that Mr McFarlane may have experienced some acute cardiac event, this possibility could not be confirmed. On the appeal, counsel for both parties acknowledged that in these circumstances, the possibility of a cardiac event was pure conjecture and no more.
Legal Liability
The relevant provisions of the contract of insurance were as follows:
We will cover you, a nominated driver, an authorised driver, or passengers of your vehicle, for legal liability if your vehicle or a substitute vehicle is involved in an incident that causes loss or damage to someone else’s property, or death or bodily injury to other people.
…
We will NOT cover any loss, damage or liability
…
• deliberately caused by you, a member of your family, a nominated driver, or an authorised driver
…
In this respect, CGU Insurance pleaded:
3.As to the allegations set out in paragraph 2.2 of the statement of claim, the defendant says that the granting of indemnity to an insured depends upon the terms and conditions of each policy and in particular on the exclusions to cover.
…
5.As to the allegations set out in paragraph 3.2 of the statement of claim, the defendant says that “A & G McFarlane” held a “nominated driver motor vehicle insurance policy” number 23B 2024752 02 current for the period between 30 January 2008 and 30 January 2009 and subject to the terms and conditions set out in the policy wording, including the exclusions to cover.
…
8.The defendant says that the collision was deliberately caused by the driver of the Jaguar steering his vehicle into the path of the prime mover.
…
11.As to the allegations set out in paragraph 9 of the statement of claim, the defendant denies that the plaintiff is entitled to recover its loss and damage as alleged on the following grounds:
11.1 The policy contains an exclusion for loss, damage or liability deliberately caused by the insured, a nominated driver or an authorized driver.
11.2 The plaintiff’s loss and damage, if any (which is not admitted), was deliberately caused by Mr McFarlane, who was the insured and/or an authorized and/or a nominated driver of the Jaguar.
…
As noted above, the Judge concluded that the deceased deliberately drove into the path of the B-double semi-trailer with the intent of committing suicide and that, as a consequence, the exemption clause in the policy had been satisfied. It is necessarily implicit that the Judge concluded that legal liability had been established within the meaning of the insurance policy and that, accordingly, it was relevant to consider and resolve the questions arising on the exemption clause. The Judge did not make an express finding of legal liability.
I was initially perplexed by the failure of the Judge to specifically address the question of the legal liability of Mr McFarlane. It appears, however, that the trial proceeded on the basis that there was no dispute about the manner of driving and that Mr McFarlane’s vehicle was on the incorrect side of the road at the time of the collision. As discussed above, on Murray’s Transport’s case, this was an act of negligence. On CGU Insurance’s case, this was a deliberate act and, one might infer, a fortiori negligent. The real issue at trial was whether CGU Insurance had established deliberate conduct and, in particular, that Mr McFarlane drove with the intention of commiting suicide. When this is understood, the approach taken by the Judge is understandable.
Notwithstanding the above, on the appeal, counsel for CGU Insurance maintained that no formal concession had been made at trial about legal liability. It was accepted that it was implicit in the Judge’s reasons that he must have concluded that legal liability within the meaning of the insurance policy had been established. However, as the appeal developed, the question of legal liability on behalf of Mr McFarlane came to be addressed in some detail. This led CGU Insurance to seek to raise this challenge either by way of notice of contention or by way of cross-appeal. In these circumstances, a review of the evidence with a view to determining the established facts should be undertaken and consideration given to the inferences to be drawn from those established facts.
The Appeal
The Approach of the Appeal Court
It is settled that an appellate court is obliged to conduct a real review of the trial and the Judge’s reasons. This Court is in as good a position as the trial Judge to decide what are the proper inferences and conclusions to draw from the evidence. In Fox v Percy, the High Court summarised the position as follows:[13]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".
[Footnotes omitted.]
These observations guide the approach to be taken by this Court when resolving the issues arising on the appeal. No issue about the credibility and reliability of witnesses arose. Essentially, the primary facts were not in dispute. The matter of debate concerned the proper inferences to be drawn from those facts.
[13] Fox v Percy (2003) 214 CLR 118, [25].
Evidence Supporting Some Positive Inference
In Girlock (Sales) Proprietary Limited v Hurrell,[14] members of the High Court discussed the approach to be taken to the issue of positive inferences. Stephen J observed:[15]
This is not a case of mere competing possibilities, no instance of "a choice among rival conjectures", such as Dixon C.J. spoke of in Jones v Dunkel. Here there exists what Dixon C.J. there referred to as "evidence supporting some positive inference ... an inference which arises as an affirmative conclusion from the circumstances proved in evidence". His Honour went on to cite a passage from the unreported decision of five members of this Court in Bradshaw v McEwans Pty Ltd which is rather more fully reproduced in the report of Holloway v McFeeters; speaking of civil cases, the passage reads:
"you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson Richard Evans & Co. Ltd. v Astley. All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood".
At p. 305 of Jones v Dunkel Dixon C.J. added these observations:
But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
[Footnotes omitted.]
[14] Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155.
[15] Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155, 161-162.
Mason J, with whom Aickin and Brennan JJ agreed, similarly observed:[16]
There was no direct evidence which bore on the issue of causation. But there are settled principles which, though difficult in their application, allow inferences to be drawn from proven facts in certain circumstances. "Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves." (Holloway v McFeeters). What is required are circumstances which —
... do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.
See Bradshaw v McEwans Pty Ltd; Holloway. See also Jones v Dunkel; Luxton v Vines.
[Footnotes omitted.]
[16] Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155, 168.
The Submissions of the Parties
Counsel for Murray’s Transport submitted that the Judge did not resolve the competing hypotheses and influences in any persuasive way. It was accepted that the Judge identified a number of relevant matters, however it was complained that he did not weigh or balance them at all or appropriately. Earlier in these reasons, I have extracted the Judge’s discussion of the competing hypotheses. I have also extracted his Honour’s conclusion. Counsel contended that the conclusion of the Judge was no more than a bare conclusion unsupported by appropriate and necessary findings and distinct or effective reasoning. Counsel suggested that the Judge failed to adequately disclose his process of reasoning to his conclusion.[17]
[17] Papps v Police (2000) 77 SASR 210, [24]-[35]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
Counsel for CGU Insurance acknowledged that the Judge had not made explicit findings on a number of issues. It was accepted that this Court, following a review of all the evidence, should proceed in the manner discussed by the High Court in Fox v Percy.[18] In particular, it was accepted that if this Court considered that an incorrect inference had been drawn from the undisputed facts, it should overturn the relevant finding of the trial Judge and should reach its own conclusions.
[18] Fox v Percy (2003) 214 CLR 118.
Circumstantial Evidence
In Bradshaw v McEwans Pty Ltd,[19] the High Court discussed the difficulties that confront a court when there is little or nothing to show how an accident occurred. The Court observed:[20]
… Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstancial [sic] evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.
[19] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.
[20] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.
At all times the onus of proving that Mr McFarlane’s negligent driving caused the accident rested with Murray’s Transport. Nevertheless, I take the view that the evidence concerning the possibility of an acute cardiac event is not sufficient to exclude a finding, on the balance of probabilities, that the accident was caused by the negligence of Mr McFarlane. I agree with Gray J, and consistent with the concession by the parties, that the evidence in this case raises an acute cardiac event as no more than conjecture or a speculative possibility. However, not only is such an event occurring no more than a speculative possibility, the nature of any such event, if it had occurred, and therefore the effect it might or might not have had on Mr McFarlane’s ability to avoid the accident, must also be seen as speculative. In these circumstances, the alternatives of whether there had been an inevitable accident or whether, having experienced such an acute cardiac event, Mr McFarlane nevertheless negligently failed to avoid the accident, do not arise.
In TNT Management Pty Ltd v Brooks[49] Gibbs CJ (with whom Stephen, Mason and Aickin JJ agreed) said this.
In my opinion it is reasonable to find on the balance of probabilities that the pantechnicon was, to some extent at least, on its incorrect side of the roadway at the time when the collision occurred. If that was so it should further be concluded that its driver was guilty of negligence. It is of course true that it is possible to envisage circumstances in which the pantechnicon could have got on to its incorrect side of the roadway without any negligence on the part of its driver. For example some inevitable accident, or hazard quite unconnected with the semi-trailer, might have caused the pantechnicon to have swerved to its incorrect side of the roadway. However, there is nothing at all in the evidence that would support an inference of that kind, and a finding to that effect would be merely conjectural. If therefore the pantechnicon was proceeding (or standing) entirely or partly on its incorrect side of the roadway, the reasonable inference to draw in the circumstance of the present case is that the driver of the pantechnicon had been guilty of some negligence which caused or contributed to cause the collision.
A finding of inevitable accident in the present case also would be merely conjectural.
[49] (1979) 23 ALR 345 at 350.
Having excluded deliberate action (suicide) on the balance of probabilities and in the absence of evidence of any other non-negligent cause the proper inference to draw on the balance of probabilities from the evidence in this case (in particular the fact that Mr McFarlane’s vehicle was on the incorrect side of the road for some time prior to and at the time of collision) is one of negligent driving.[50]
[50] TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 at 349-350.
CGU has not discharged its onus of proving suicide and the application of the policy exclusion and Murray’s Transport has discharged its onus to prove that the accident came about as a result of Mr McFarlane’s negligence. It is not necessary to make a more specific finding as to the precise nature of that negligence.[51]
[51] Doonan v Beacham (1953) 87 CLR 346.
The Judge did not make a finding as to quantum. The Court was told by counsel for Murray’s Transport during the hearing of the appeal that damages had been agreed.[52] Counsel for CGU did not demur. Counsel for CGU appears to have made a concession at the trial to the effect that the recoverable damages are the ex-GST amount(s) claimed in the second statement of claim but not the greater amounts identified in the invoices and other documents tendered during Murray’s Transport’s opening.[53] However, it is not clear whether this is the agreed position to which counsel for Murray’s Transport on appeal adverted.
[52] Appeal transcript (1 July 2013) at p40.
[53] Trial transcript p158.
I agree that the quantum of damage suffered by Murray’s Transport should be reduced by 15 per cent on account of contributory negligence for the reasons given by the Chief Justice and Gray J and judgment entered accordingly. The parties should be heard further on the agreement as to quantum apparently reached at trial and on the questions of interest and costs.
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