Parnell & Anor v Carty

[1992] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B19 of 1992

B e t w e e n -

BARRY JOHN PARNELL and BRUCE

WILLIAM PARNELL (as executors

of the estate of WILLIAM JOHN

PARNELL (deceased))

Applicants

and

LEONARD CARTY and MARGARET

SHIRLEY MAY CARTY

Respondents

Application for special leave

to appeal

BRENNAN J

TOOHEY J

GAUDRON J

Parnell 1 25/6/92

TRANSCRIPT-OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 1992, AT 10.04 AM

Copyright in the High Court of Australia

MR K.D. DORNEY, QC: If the Court pleases, I appear with my

learned friend, MR M.J. DRYSDALE, for the

applicants. (instructed by Nicol Robinson & Kidd)

MR G.K. FLINT: If the Court pleases, MR M.W. JARRETT and I

appear for the respondents. (instructed by Baker

Johnson & Partners)

BRENNAN J: Yes, Mr Dorney.

MR DORNEY:  Your Honours, it may assist if I hand up the

submissions which are necessarily fairly short, and
if I might also hand up selected pages being four
in number only from the evidence given by

Mrs Parnell.

BRENNAN J: It looks suspiciously like a fact case in a

motor car accident, Mr Dorney.

MR DORNEY: It certainly is, Your Honour. What we say

though is because of injustice which is caused by

the misstatement of law by the trial judge,

although we say his finding of primary facts is
correct, the ignoring by the Court of Appeal of an
essential matter of evidence and the apparent

misstating of law on their part, that injustice of

a significant order has occurred to the applicants

in this case.

It is clearly a case of injustice only, and

nothing further. But we would submit that there

is a peculiar combination or cocktail of events

that leads to particular injustice in this case.

The injustice grounds cannot be put any higher than

those outlined in paragraph 2.

BRENNAN J: What was the particularly significant part of

the evidence that the Court of Appeal overlooked,

the evidence of the wife?

MR DORNEY:  The evidence of the wife at a particular part of

the evidence of the wife. If one goes to the Court

of Appeal judgment itself, it is apparent from the

application book, page 13, the Court of Appeal

referred to two particular aspects of the wife's

evidence, namely, the turning of the head of the

deceased to the left and the uttering of a sound

which might be described as a groan. They then say

two lines further down:

From that, and apparently nothing more,

His Honour inferred that "the better view of

her evidence is that it demonstrates that he

was in a state of unawareness."

Parnell 2 25/6/92

If Your Honours actually go to the evidence, and that is why we handed up those four pages from the

transcript itself, it is clear that the widow also

referred on three occasions to what she described

as "he was gone".	The first of those is on page 35
line 55:

the next thing I knew we were beside the semi

and I said, "Well, he's gone." I knew he was

gone.

The second is the following page, page 36, about

line 34:

Well, the next thing I knew we were heading

straight across the road to the semi. Then I

said to myself, "He's gone". That's what I

thought to myself.

BRENNAN J: That would not even be admissible, would it?

MR DORNEY: Well, it would, Your Honour, for this reason,

that it really is a summary of her observations of

her husband's physical or mental state. She is
entitled to give that as a matter of observation on

her part. It is then open to the court, of course,

to draw inferences from that as to whether that

observed state is sufficient to establish a state

of unawareness or involuntary conduct. But she is

entitled, in our submission, to say what she said.

That is the summary of her observation. As I

said, the third reference to that is page 38, at

about line 38, and really to the same effect, "He's

gone".

That evidence was not referred to at all by

the Court of Appeal.

BRENNAN J:  Was she asked what led her to think that he was

gone?

MR DORNEY:  That question was not asked. We would submit

though, that this is the evidence from a widow

whose husband has been killed in the accident. It

is plain, ordinary words of an ordinary Australian

citizen. The words, "He's gone" can hardly mean

anything other than he is not physically or

mentally present. It can hardly be that he has

physically left the car, or something of that kind.

They are ordinary everyday words that people use to

describe a person in a state of unconsciousness,

perhaps even death. But we would submit, viewed

that way, they are not equivocal, they are not

meaningless. The trial judge clearly formed the

opinion from them that the observations of the wife

were that her husband had died. That is clear from

the reasons that he gives.

Parnell	25/6/92
BRENNAN J: What was the cause of death?

MR DORNEY:  The cause of death was a ruptured aorta. It was

found by the judge at first instance and not

contested on appeal that that occurred in the

actual trauma of the impact. That was originally

relied upon as a spontaneous rupture of the aorta

which may have led to involuntary conduct, but that
was not relied upon either in the judgment at first

instance or on appeal.

BRENNAN J: Well, the evidence was this: that she thought

he was gone.

MR DORNEY:  Yes.

BRENNAN J: He, in fact, went because of a ruptured aorta.

MR DORNEY: Eventually, yes.

BRENNAN J: Well, that is the fact.

MR DORNEY: That is the fact, yes.

BRENNAN J: And that a ruptured aorta was caused by the

impact.

MR DORNEY: Yes. But there was medical evidence also to the

effect that he suffered from a number of conditions

which could lead to a loss of consciousness.

BRENNAN J: Well, he was not, in fact, gone on that

hypothesis. He was - - -

MR DORNEY:  The judge found that he was not dead, if one

might put the word, until the actual impact. But

the medical evidence which was led was consistent

with a temporary unconsciousness prior to the

actual impact.	Now, the Court of Appeal treated
that medical evidence as if it was a possibility

only, and it certainly conceded it did not go higher than "could". But, of course, it is a

combination of that particular medical evidence and

the observed fact, we would say, of the wife's

observations of him that could lead to the equally

competing inference that he was in an unconscious

state, and therefore there was involuntary conduct

at the time that the veering occurred across the

road. We would say that that, on the whole of the

evidence, was at least an equally competing

influence with the inference as to negligence,

because there was no direct evidence of negligence

in the case. It was merely - - -

BRENNAN J: Well, the proposition is this: there was a car

going along ordinarily. It went on to the wrong

side of the road. The driver of the car had some

Parnell 4 25/6/92

medical conditions which had in the past caused a

loss of consciousness, and the question simply is

whether on those facts the inference should be

drawn of negligence, or whether the inference

should be drawn that he had suffered a loss of

consciousness, and on that account had drifted over

to the wrong side of the road.

MR DORNEY:  If that was all there was, then, in fact, we

would have no chance. But it is the additional

fact of the wife's observation that elevates that

medical evidence to a status where the cause, which

is a possible cause, becomes the probable cause.

BRENNAN J: Well, given that; in other words, that there

was evidence which was suggestive of some loss of

consciousness.

MR DORNEY:	Yes.
BRENNAN J: Well, that was the state of the evidence.	One

does not know as a matter of certainty whether

there was a loss of consciousness, or whether there

was negligence. And the question then is: what

inference does one draw?

MR DORNEY: Well, we would submit that on the evidence as

the judge, we would submit, correctly drew the

inference, that, in fact, there was

unconsciousness. There was involuntary conduct at

the time of the veering.

The cases do establish, of course, that you

merely have to have but a slight circumstance to

establish matters such as a competing inference.

That is the reference, in fact, both to Davis v

Bunn, which is at the bottom of the first page, and

to the case of Olds v Government Insurance Office

(NSW), at the top of the second page. In Davis v

Bunn, Mr Justice Dixon said it needs but a slight

circumstance to establish the equally competing

inference. In Old's case there was no medical

evidence at all. The only evidence that existed

was that by the plaintiff that the driver of the car had slumped over the wheel. That is all the

evidence there was. It was sufficient, both at

first instance and on appeal to the New South Wales

Court of Appeal to be sufficient to establish the

equally competing inference.

The last submission we would wish to make,

Your Honours, is that there is the additional

circumstance that His Honour had found the

deceased's driving prior to the veering was quite

unremarkable; that the wayward direction of the

car occurred only after the early evidence of

distress which was the turning to the left and the

Parnell 5 25/6/92

emitting of the groan, and that the observations

which were made about the existence of

unconsciousness - the wife thought death - were

made at the same time as the veering occurred.

We say the connection between those

observations and the waywardness was not simply

sequential, but carried the idea of causation and

the notion of involuntary action.

I do not think I can take the matter much

further, Your Honours, except to submit that it was

clear both that the original trial judge was right,

the Court of Appeal was wrong and that injustice

has occurred.

BRENNAN J:  Thank you, Mr Dorney. The Court need not

trouble you, Mr Flint.

It would be inappropriate to grant special

leave to appeal when the essential question in the case is whether, on the whole of the evidence, the
Court of Appeal was right in drawing an inference

of negligence. Accordingly, special leave will be

refused.

MR FLINT:	I would ask for costs, Your Honour.
MR DORNEY:	No opposition.
BRENNAN J:	It will be refused with costs.

AT 10.17 AM THE MATTER WAS ADJOURNED SINE DIE

Parnell 6 25/6/92