Nominal Defendant (Qld) v Turner

[1996] QCA 188

IN THE COURT OF APPEAL	[1996] QCA 188
SUPREME COURT OF QUEENSLAND

Appeal No. 234 of 1995.

Brisbane

[Nominal Defendant v. Turner]

BETWEEN:

THE NOMINAL DEFENDANT (QUEENSLAND)

(Defendant) Appellant

AND:

JILLIAN EUNICE TURNER

(Plaintiff) Respondent

___________________________________________________________________________

Pincus J.A. Davies J.A. McPherson J.A.

___________________________________________________________________________

Judgment delivered 07/06/1996

Joint Reasons for Judgment of Pincus and Davies JJA; separate concurring Reasons for Judgment of
McPherson J.A.

___________________________________________________________________________

APPEAL ALLOWED WITH COSTS, JUDGMENT BELOW SET ASIDE AND
JUDGMENT ENTERED FOR THE APPELLANT WITH COSTS.

___________________________________________________________________________

CATCHWORDS: PERSONAL INJURY - Nominal Defendant - no collision - s. 4F(3) of

Motor Vehicles Insurance Act 1936.

Counsel:	Mr K Wilson for the appellant. Mr W Cochrane for the respondent.
Solicitors:	O’Shea Corser & Wadley for the appellant. Bells for the respondent.
Hearing date:	29/05/1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 234 of 1995.

Brisbane

Before Pincus J.A. Davies J.A. McPherson J.A.

[Nominal Defendant v. Turner]

BETWEEN:

THE NOMINAL DEFENDANT (QUEENSLAND)

(Defendant) Appellant

AND:

JILLIAN EUNICE TURNER

(Plaintiff) Respondent

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DAVIES J.A.

Judgment delivered 07/06/1996

This is an appeal against an award of damages in a personal injuries case. The appellant attacks

a judgment in favour of the plaintiff who suffered an injury to her coccyx in a fall. The judge found in

effect that the injury was caused by the driver of an unidentified motor vehicle driving too fast in a car

park and contributed to by the respondent’s failure to keep a proper lookout; her Honour apportioned

liability 70% against the driver and 30% against the plaintiff. This case is an unusual one in that there

was no collision; the respondent claimed to have been injured when, noticing a car passing in front of

her on the roadway she was about to cross, she quickly stepped back and fell. The car had, it may be

assumed, approached the respondent from her left, having been driven around a corner.

The appellant Nominal Defendant (Queensland) raises two questions on appeal, the first being

whether there was evidence on which it could reasonably have been found that the plaintiff’s fall was

caused by negligence on the part of the driver of the unidentified car. Secondly, the judge’s finding that

the respondent had proved compliance with s. 4F(3) of the Motor Vehicles Insurance Act 1936 is

challenged. That is the provision that requires that in a case of this sort it be shown that "the identity of

[the relevant] motor vehicle cannot after due enquiry and search be established".

The respondent alleged that she was injured when she stepped backward in the vicinity of a

kerb bordering a lawn, fell over and was injured. Her case was that the cause of the backward step

was that a car was driven past her at excessive speed and the judge so found. Although the

respondent’s injury was said to have been sustained on 23 April 1991, there appears to have been no

suggestion, for some considerable time, that an unidentified car driver was at fault. On 18 December

1991, according to notes taken when the respondent sought legal advice, she told a solicitor that a car

came around the corner quickly and she stepped back quickly, caught her foot on the kerbing and as

a result fell backward. There was no evidence of an allegation of that kind, during the preceding 8

months. As the judge pointed out:

". . . the plaintiff’s co-workers, who assisted her after her fall and gave evidence in Court, cannot recall her mentioning a car but, rather, can recall the plaintiff merely saying that she fell over the kerb."

Further, the judge said, the respondent did not mention a car to the doctor who saw her on the day of

the accident nor, apparently, to other treating doctors who saw her in July and November 1991. In

addition, there was a statement before the judge from a witness who was unfit to give oral evidence,

who said she saw the respondent fall, but had no recollection of seeing a car in the vicinity.

After referring to these difficulties the judge remarked:

"These matters would be of concern to me but for [the respondent’s] statement on 29 April 1991, only a few days after the accident . . . ‘I was crossing the road to go to the factory to start work. A car came around the corner and I quickly stepped back. As I did this I misjudged the kerb and fell over’ . . . ".

Insofar as this implied that the circumstance her Honour mentioned dispelled any ground for concern

about the several pieces of evidence pointing in a contrary direction, it is not easy to agree with the

approach taken. Nor was the statement her Honour quoted of any great assistance to the respondent’s

case; it did not expressly or implicitly attribute any blame to the car driver, and in particular did not

suggest that, as was ultimately found, the car was being driven too fast. That notion first emerged on

18 December 1991, as we have explained above. A further matter taken into account in this

connection, apparently in favour of the respondent, was that, as the judge put it, the respondent

"mentioned a car to Dr Black who first saw her on 18 September 1992". But the doctor’s evidence

was that the respondent told him she was knocked over by a motor vehicle.

Against this unpromising background, the respondent succeeded in having it found that the

substantial cause of her injury was a car being driven at excessive speed. It is not suggested, however,

that this Court would be justified in interfering with the judge’s conclusion that a car went by, causing

the respondent to step back and that she caught her heel in some fashion and fell over. A more difficult

point for the respondent is whether we can uphold the further finding, that the car was travelling at

excessive speed and that its speed caused the step back.

In essence, what the respondent said in her evidence, as we read it, was that she caught little more than a glimpse of a car going by: she could say very little about it, either as to speed or location. The burden of her evidence was that she noticed the car all of a sudden and saw it only for an instant.

There are two sets of evidence of the respondent in the record, in each of which there are to

be found various expressions of the way in which the respondent recalled having fallen. The first is in

evidence the respondent gave, on an application for extension of time, on 3 April 1992, a year after the

injury complained of was sustained, and the second, that given at the trial 3½ years later. One would

expect the earlier account to be more reliable. A point of importance on which the 1992 evidence

resembles that given in 1995 is that the respondent emphasised how brief and inadequate was the

opportunity she had to observe the passage of the motor vehicle. On the former occasion, so

persistently did the respondent assert this that her counsel intervened in the course of cross-examination,

apparently by way of objection, to insist that the respondent had not seen the vehicle.

It is unnecessary to set out the whole of the relevant passages in the evidence given in April

1992, but examples should be given.

" . . . I was just to cross the road and suddenly the car - just at the side here is the hill they come down. They come down there at a very fast speed, and as I went to walk across this car came around and I had to step back and I caught myself on that kerb behind."

" . . . I just walked from my car . . . and as I glanced like that the car came around the corner and I stepped back because I had started almost to cross the road. We were quite close so I just stepped back naturally, I mean . . . I didn’t even realise the kerb was behind me and I just stepped - I caught the ankles on the kerb, went down, and went back."

"The car that came around the corner, did it cut the corner?-- I don’t know. It was
just so quick. It was there. I knew I had to get out of the way.
You saw a car, you stepped back around, you misjudged the kerb and you-----?--
That’s right.

And you slipped over?-- As I stepped back on the kerb my ankles twisted and I went down.

Did you see the car that came around the corner?-- No, I didn’t."

"I didn’t see the car until it was almost on me.

And the car wasn’t going to hit you, was it?-- Well, I didn’t know that, that’s why I stepped back".

" . . . I don’t know if I misjudged it or not. I didn’t realise it was there. I just stepped back and I fell on it. I caught my feet on it. My ankles went under me and I fell, but I didn’t see the car until I was just about to cross the road and it was there, so I stepped back".

Apart from what may be implicit in the general statement that cars coming from the direction in question

come very fast, in none of these passages, nor at any other point in her 1992 evidence, did the

respondent claim that she made sufficient observation of the car to be able to give an idea of its speed

of movement. She did not say, in her 1992 evidence, that she noticed at the time that the car which

caused her to step back was going fast, or too fast.

In the evidence given in October 1995 the respondent, initially at least, remedied the main

deficiency in her previous evidence; when first asked about the incident she said the car "came past me

very quickly". But the other difficulty, that she claimed to have had only the merest glimpse of the car,

remained; further, she did not seem to persist in the assertion that she was able to say anything about

the car’s speed. Again without being comprehensive, it is necessary to quote some passages, which

are representative of the version given:

"Can you now giving your evidence in this Court say where this car was on the roadway?-- Well, it was very close to me. I don’t know exactly where it was because I didn’t actually see it. I saw a flash of a car go past and it was close enough to make me feel I had to step back."

" . . . I just didn’t see the car - I just looked and I knew there was a car passing - or
a vehicle passing me and I just stepped back."
" . . . by the time I looked back there was nothing there in that short space of time and
then when I did look back there was something there went past me."
"Now putting your evidence in its context, it is this, that you got out of your car, you
walked - crossed the traffic island, you stepped off, you sensed a presence of a car,
and stepped back and misjudged the curb?-- Yes.

. . .

You can’t say where the car was on the roadway?-- No.

You can’t say at what speed the car was travelling?-- No.

. . .

I don’t know what the car was doing, but I do know that a car passed me and I had to step back."

" . . . you didn’t see the car on the roadway?--- Well, it was a reaction, if something

flashes past you, your reaction is to step back. And that’s exactly what I did."

It is evident that if a person about to cross a roadway happens not to notice an approaching vehicle until

it is passing in front of him or her, there might well be an impression created of quick movement, simply

because the car seems suddenly to appear. The photographs in evidence demonstrate, and it was not

contested, that if there was a vehicle approaching from the respondent’s left as she was about to step

onto the roadway, it must have been visible at some distance; there was no obstruction to prevent it

being seen. No other reasonable inference was open than that the respondent did not look out for

vehicles coming from her left until she was stepping onto the roadway; the judge found that she failed

to look properly to her left. The difficulty in the case, then, is whether it was a proper course for the

trial judge to find, as her Honour did, that the substantial cause of the respondent’s injury was that the

vehicle went by at excessive speed, on the basis of such description of the vehicle’s motion as the

respondent was able to give.

It is desirable to quote part of what the judge said in reaching a conclusion favourable to the

respondent:

"I am satisfied on the balance of probabilities that a car was involved in this incident and
the plaintiff’s fall occurred in the circumstances as outlined by her in this Court.

The next question is: Was the driver of this unidentified vehicle negligent? The plaintiff’s shoes have been somewhat of a feature in this case. I find the plaintiff was wearing shoes with a two-inch approximate heel. She largely concedes this herself and this is consistent with the evidence of other witnesses. These shoes are common footwear for women and in the circumstances of this case I can find nothing outlandish about them and nothing that has contributed or caused her fall.

. . .

I accept the plaintiff’s evidence that she looked to see if the road was clear immediately before stepping onto the road to cross it but that as she did so, a car then quickly came up on her, close to her, necessitating her to step backwards. Though she is unsure of the speed of the vehicle, she sensed it was travelling quickly and that it was close to her. As she stepped backwards she then tripped on the kerb, falling and injuring herself.

On the balance of probabilities I am satisfied the driver of the vehicle was in all the circumstances travelling at an excessive speed."

It is necessary to make comment on these passages. The question whether the driver was

negligent seems, with respect, to be unconnected with the subject next discussed, namely the shoes the

respondent was wearing. Her Honour’s statement that "a car then quickly came up on her, close to her,

necessitating her to step backwards" gives the impression that the judge might have thought that an

element in the driver’s fault was driving too close to the right-hand kerb; before this Court, counsel for

the respondent seemed to urge on us the view that the car "cut the corner". There was, as it seems to

us, no evidence on which that could reasonably have been found; in answers to interrogatories the

plaintiff said in effect that when she first saw the car it was turning right and was about 3 to 4 metres

from the right-hand gutter, which would place it well clear of the respondent. But more importantly, it

does not appear to us that, fairly read, the judge’s reasons were based wholly or in part on a finding that
the course, as opposed to the speed, of the vehicle showed negligence.

Another, perhaps minor, point is that the judge’s statement beginning with the words "I accept

the plaintiff’s evidence . . . ", perhaps gives the impression that the plaintiff said a car "quickly came up

on her", implying that the respondent plaintiff saw this happen. The passages quoted above, read as a

whole, make it clear enough that the respondent saw the car pass, or had an impression of a car

passing; it is not possible, in our respectful opinion, to find on the basis of the respondent’s evidence

that she watched it as it came around the corner approaching her. The respondent’s statements that she

did not see the car need not necessarily be taken literally, but must at least convey that such observation

as she had of it was of a fleeting kind; it will be recalled that she referred to "a car passing - or a vehicle

passing" and "something there", implying that she was not even sure whether or not the vehicle was a

car.

Conscious as we are of the importance of the advantage which the law says the trial judge

possesses in a case like this, that of having seen and heard the respondent, it does not appear to us that

there was any sound foundation for a finding of negligence against the car driver. The only basis we can

see for it is that on one of the occasions on which she discussed what happened, the respondent said

the vehicle moved very quickly, and on other occasions she said that it flashed by. If the respondent

had an impression that it was travelling at a substantial speed, that impression was at least as likely to

have been gained from the apparent suddenness of its appearance as from anything unusual about its

rate of progress.

There was no evidence upon which negligence consisting in excessive speed could reasonably

be found against the car driver, or the driver of whatever vehicle it was which the respondent saw, or
otherwise sensed, was passing her.

A subject which was discussed at the hearing in this Court was the connection between the

speed of the vehicle and the injury; there was no finding that the vehicle’s speed was the cause of its

not being seen until it was passing the respondent. Keeping in mind the judge’s finding that the

respondent failed to keep a lookout to her left for approaching traffic, and the respondent’s statements

to the effect that she saw the vehicle "passing me" and moved back quickly, it is not immediately obvious

that it was of much consequence whether the vehicle was travelling at, say, 30 kph or 50 kph. The

reason for the quick move backwards which led to the fall was that the respondent reacted to the sight,

or an impression, of a passing vehicle which she had not previously noticed. One can understand that

a pedestrian might be startled in this situation, whether or not the vehicle which seemed suddenly to

appear was travelling fast. Ordinarily, speed is relevant in collision cases as making evasive measures

more difficult, or causing a loss of control, or in some such fashion; here it is not clear on what basis

the speed of the vehicle was thought to be causative. But it is unnecessary to reach a conclusion on that

aspect of the matter, which was not referred to in the judge’s reasons. We would allow the appeal on

the ground that the finding of negligence against the unidentified driver should be set aside.

A second point raised by the appellant was that there was no evidence of "due inquiry and

search" as the statute requires: s. 4F(3) of the Motor Vehicles Insurance Act 1936. There were no

inquiries and there was no search. The judge took the view, in summary, that it was reasonable for the

respondent neither to inquire nor to search, because her injuries appeared at first to be relatively minor;

further, her Honour held that there was no real likelihood of success of inquiry or search by the time -

5 or 6 months after the incident - that the respondent realised the importance of the car to any

prospective court case.

The appellant’s submissions challenging this process of reasoning have substance, but it is

unnecessary to determine whether or not they must be accepted.

We would allow the appeal with costs, set aside the judgment below and enter judgment for

the appellant in the action, with costs.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 7th day of June 1996

I agree that, essentially for the reasons given by Pincus and Davies JJ.A., this appeal should

succeed. However, because we are differing on a matter of fact from the conclusions of the learned trial

judge, it is, I think, desirable that I should give separate reasons of my own.

It has never been suggested that the car which came round the corner struck the plaintiff. The

injury she sustained when she stepped back and fell is attributed to the driving of the car because it

engendered a natural fear and reaction on her part to the risk that it might collide or pass dangerously

close to her. Whether such a response was a reasonable or, at any rate, a natural one necessarily depends on how close the vehicle came to her and the speed at which it was travelling. She was not

entitled to succeed in her claim unless the speed and proximity of the vehicle were such as to warrant

her action in stepping back suddenly and without due care.

It is at this point in the case that the plaintiff's difficulties emerge. She does not seem to have

seen the car itself but rather to have become conscious of its approach only or principally through some

sense other than sight. Perhaps she heard it coming or felt a rush of air as it approached or neared her.

However it was that the plaintiff sensed the presence of the car, she was unable to say how fast

it was travelling or how close it came to her. Without some reliable evidence about those matters, it is

impossible to assess the reasonableness of her response. The roadway at the point where she was

beginning to cross was wide. There was evidence that the distance from one edge of it to the other was

7.2 metres. Even if the plaintiff was standing in the channel at the side of the road, there would have

been a further 6 or more metres in which the vehicle could have travelled without presenting a threat to

her safety. There is no evidence that it cut the corner on her side. Without knowing where it was in

relation to her side of the roadway, it cannot be said that the plaintiff's conduct in moving back out of

the way without looking to see where she was stepping was in the circumstances a natural and

reasonable response for the purpose of avoiding an impending or emerging risk of injury to herself.

On the evidence, the plaintiff failed to prove a case of negligence against the driver of the

unidentified vehicle. The appeal must be allowed with costs; the judgment below must be set aside; and

judgment should be entered for the appellant (defendant) in the action with costs.