Nominal Defendant v Garside

Case [2019] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Garside & Ors [2019] QCA 270

PARTIES:

NOMINAL DEFENDANT
ABN 65 207 831 553
(appellant)
v
GLENN STUART GARSIDE
(first respondent)
DAN ROHAN
(second respondent)
TREVOR JAMES MILES
(third respondent)
JEFF ROBERTSON
(fourth respondent)
QBE INSURANCE (AUSTRALIA) LIMITED
ABN 78 003 191 035
(fifth respondent)

FILE NO/S:

Appeal No 71 of 2019
SC No 499 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton – [2018] QSC 295 (Davis J)

DELIVERED ON:

26 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2019

JUDGES:

Philippides and McMurdo JJA and Applegarth J

ORDERS:

1.   Appeal dismissed.

2.   The appellant pay each respondent’s costs of the appeal.

CATCHWORDS:

TORTS – NEGLIGENCE – PROCEDURE AND EVIDENCE – EVIDENCE – SUFFICIENCY OF EVIDENCE – where the first respondent was injured in the early morning by what he said was an object falling from the back of a truck and striking him whilst he was driving a motorbike – where the vehicle and its driver were not identified but the type of vehicle was established as a commercial truck – whether it was open on the evidence for the primary judge to conclude that the object was pocketed in some part of the truck’s bodywork – whether, if the object was pocketed, it would have been detected if a competent inspection was undertaken – whether the accident was caused by the negligence of whoever was the driver

COUNSEL:

G W Diehm QC, with G C O’Driscoll, for the appellant
M Grant-Taylor QC, with R D Green, for the first respondent
No appearance for the second, third, fourth and fifth respondents

SOLICITORS:

Moray & Agnew Lawyers for the appellant
Grant & Simpson for the first respondent
No appearance for the second, third, fourth and fifth respondents

  1. PHILIPPIDES JA:  For the reasons given by McMurdo JA, I agree with the orders proposed by his Honour.

  2. McMURDO JA:  Early on the morning of 25 November 2014, the first respondent, Mr Garside, was injured as he rode his motorcycle along the Gregory Highway, north of Emerald.  He was injured by an object, about the size of half a brick, which fell from the back of a truck which was travelling ahead of him.  Mr Garside saw the object fall from a height of about 800 millimetres to the road, and bounce on the road, before grazing his motorbike and striking him on his kneecap.  He was able to regain control of the motorcycle and pull over, but nevertheless, he was badly injured.

  3. Mr Garside brought this proceeding, claiming that the accident was caused by the negligence of the driver of the truck.  In essence, he alleged the driver either knew, or should have known by an inspection of the truck before embarking on this journey, that there was this object on the truck which could fall off it when the truck was being driven, creating a risk of the kind of which eventuated in…

Continue reading Nominal Defendant v Garside

Sign in free to access the full text

Details
AGLC
Nominal Defendant v Garside [2019] QCA 270
Case
[2019] QCA 270
Decision Date

CaseChat Overview and Summary

The case of Nominal Defendant v Garside involved a dispute regarding an accident in which the first respondent, Mr Garside, was injured while riding his motorcycle on the Gregory Highway. The incident occurred when an object fell from the back of a truck and struck Mr Garside. The primary issue before the court was whether the trial judge was correct in concluding that the accident was caused by the negligence of the truck driver. The Nominal Defendant, appealing against the judgment, argued that the trial judge's determination was erroneous, but the appeal was ultimately dismissed.

The central legal issue was whether the trial judge correctly identified that the accident resulted from the negligence of the truck driver. This required the court to consider whether the object could have been detected if a competent inspection of the truck had been undertaken prior to the journey. The court needed to evaluate the sufficiency of the evidence provided, specifically regarding the possibility of the object being overlooked during a routine inspection, and whether such an oversight would constitute negligence on the part of the driver.

The court found that the trial judge's reasoning was sound and based on the evidence presented. The drivers testified that they regularly checked their trucks for any objects that may have been inadvertently left on the vehicle. The court accepted that these inspections were thorough enough to detect any significant object, and therefore, the failure to detect the object in question was likely due to negligence. The court also noted that the size and visibility of the object would have made it easily detectable during a proper inspection. Consequently, the appeal was dismissed, and the court upheld the trial judge's findings regarding the cause of the accident.

The final orders of the court were to dismiss the appeal and to direct the appellant to pay the costs of the appeal for each respondent.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay each respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Nominal Defendant appeals against that judgment, arguing that the determination of that second question was erroneous. There is no challenge to the trial judge’s determination of the first and third questions. The issue for this Court is whether the judge should have found that it was by the negligence of the truck driver that this object fell from it. For the reasons that follow, the trial judge was correct to decide that question as he did, and the appeal should be dismissed.The evidence The accident occurred at about 6.15 am on the Gregory Highway, where Mr Garside was riding his motorcycle north of Emerald towards Capella. It occurred at a place which was about six kilometres from Emerald. The speed limit at that point was 100 kilometres per hour. The weather conditions were good. Mr Garside was riding behind a bus, which was driven by a Mr Mooney. Mr Garside’s evidence was that he could see that there was a truck in front of the bus, which he described, in his evidence-in-chief, as a liquid waste tanker. Mr Garside said that the truck had the name “JJ Richards” printed on its side. Mr Garside described his following the bus and the truck, until it was safe to overtake. He positioned himself near the centre line of the highway, from which he could see the rear of the truck. At that time, there was no oncoming vehicle. He then noticed that something fell from the back of the truck, which he thought “was a piece of concrete half the size of a house brick.” He noticed that it “bounced directly behind the truck” before it “pinged back directly into my motorbike.” The object “grazed the fender on my motorbike and it struck my kneecap”. His knee was knocked from its position, as was his foot, but he was able to regain control and pull the motorcycle to the side of the road. He further described the object as “about half the size of a house brick or a closed fist” and grey in colour. Mr Garside did not see from what part of the truck the object fell. When he first saw it, it was “mid-air about one metre behind and off from the driver’s side of the rear of the vehicle at approximately 800 millimetres from the ground.” Later that day, Mr Garside contacted a Mr Fisher at the Richards depot in Emerald. He told Mr Fisher that this was a Richards truck, which he described to Mr Fisher as an overhead lift truck. But in his evidence, Mr Garside said that he was mistaken in that description to Mr Fisher, and that he believed that the truck was a chemical waste truck. Mr Garside and his partner attempted to locate the object at the scene, but were unable to do so. It was never found. All of that evidence was accepted by the trial judge, except for Mr Garside’s testimony that the truck had “JJ Richards” printed on its side. As I have said, his Honour found that more probably than not, this was not a Richards truck. Each of the Richards drivers who was a defendant testified as to his particular movements on the morning in question, and there is no challenge to his Honour’s finding, from that evidence, that none of them could have been the driver. There was further evidence that it could not have been a Richards truck driven by anyone else. The bus driver, Mr Mooney, said that he noticed that it was a “JJ Richards” truck. But his evidence in that respect, like that of Mr Garside was rejected.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant criticises the judgment as not revealing his Honour’s chain of reasoning towards his conclusions in [83]. It is suggested that his Honour may have made findings of fact which were, on the evidence, no more than a preference for one speculative possibility as more probable than another.[11][11]Inconsistently with Jones v Dunkel (1959) 101 CLR 298 at 304-305 per Dixon CJ; [1959] HCA 8.Consideration of the appellant’s arguments As his Honour recorded, the argument for Mr Garside did not rely on the principle of res ipsa loquitur.[12] There was and is no argument for Mr Garside that this occurrence, namely the falling of a hard object of this size from the bodywork of a truck being driven on a highway, could not happen without some negligence by the driver of the truck. It was not said that this was one of those cases where a presumption of negligence from the occurrence was one which followed from “the common knowledge and experience of mankind”, to use the words of Barwick CJ in Piening v Wanless.[13] Nor was it a case where the evidence, expert or otherwise, established that such an occurrence ordinarily does not occur without negligence on the part of the driver.[14][12]Primary Judgment [81].[13](1968) 117 CLR 498 at 508; [1968] HCA 7.[14]Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 140 [43] per Gleeson CJ and McHugh J; [2000] HCA 18 at [43]. It must be said that the evidence raised many variables, as the appellant’s argument suggests. The size of the object, and its colour and hardness, could be determined, but beyond that, just what the object was remained unknown. Whilst Mr Garside described it as being like a piece of concrete or a rock, he was unable to say that this is what it was. He described the object as bouncing unevenly off the road, which he said might have meant that it had jagged edges, but beyond that he could not describe it beyond reference to its size and that it was “about the colour of concrete”.[15] The trial judge did not find that it was a piece of concrete or rock.[15]Exhibit 6, paragraph 26. Nevertheless, his Honour had the benefit of the evidence of the truck drivers, to which I have referred. From that evidence, several things appeared. The first was that there was a common recognition that, occasionally, some object might be on the bodywork of a truck, which had not been placed there by the driver and ought not to be there when the truck was being driven. The frequency with which that could occur would vary according to factors such as the purpose to which the truck was put, and the locations in which it was driven and parked. But the prospect that there would be such an object was sufficient to lead to a general practice of checking for the presence of such a thing, at least at the beginning of a working day. Secondly, from this evidence it could be seen that the drivers, in undertaking these checks each day, were confident that any such object could be found. No doubt that confidence was supported by a driver’s knowledge of the particular truck, or in other words, a knowledge of where to look for the presence of such an object. It did not matter that these drivers, with these trucks, did not climb all over them with the use of ladders or otherwise. What mattered was that, as would be expected, they worked on the bases that an object such as this one would be visible on an inspection of any part of the body work where there was a possibility that it would be located.