Pearce v Fraser and Fraser - [2006] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PEARCE -V- FRASER AND FRASER
[2006] SADC 81
Judgment of His Honour Judge Tilmouth
25 July 2006
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
The applicant left his motor vehicle parked in gear, with the handbrake on, returning to find it had rolled backwards and damaged the respondents' premises. The Magistrate's Court accepted the applicant's evidence, but found him responsible for the damages nevertheless.
Held: Granting the application for review. The Magistrate erred in the appliction of the onus of proof and in the failure to identify acts of negligence. Doctrine of res ipsa loquitar referred to.
Moore v R Fox and Sons [1956] 1 QB 596, 614; Ng v Lee Chuen Tat [1988] RJR 298, applied.
Scott v London & St Katherine Docks Co (1865) 3 HC 596 at 601; Martin v Stanborough (1924) 41 TLRI; Bohdala v Streets [1984] Tas R 82,83.; Ruoff v Long & Co [1916] 1 KB 148; Knott v Royal Exchange Association [1955] SASR 33, 40, considered.

PEARCE -V- FRASER AND FRASER
[2006] SADC 81
The issue

On 3 March 2004 Mr Pearce parked his car in Hedley Street, Mount Gambier just north of its intersection with Alexander Street. Roughly an hour later he returned to find it had smashed into the wall of a motor repair shop situated on the South East corner of that intersection, some 55 or so metres away.
The owners of the building, brothers John and Donald Fraser, brought proceedings in July 2005, out of the Minor Civil Claims jurisdiction of the Magistrates Court at Mt Gambier seeking damages for the property damage caused by the car. They claimed $4,878 and sued in negligence, alleging Mr Pearce failed to safely park the vehicle, failed to secure the handbrake and caused or permitted the vehicle to stand in a position likely to cause damage. Judgment was given in their favour by that court on 17 November 2005, in the sum of $4,428, including filing and solicitors fees.
Factual Background
The vehicle in question, a Toyota Tarago, was left parked and unattended, facing north and according to Mr Pearce, locked with the handbrake on, in first gear, it being a manual vehicle. He gave evidence to that effect in the Court below and in this Court. He also called his friend, Mr Butcher a passenger in the vehicle, in both Courts. Mr Butcher’s evidence was also that the handbrake was engaged when it was parked by Mr Pearce before they left the vehicle to visit a mutual friend, a Mr McInnes, who lived nearby. This was at about 2.00 pm.
Their evidence was to the effect that they stayed with Mr McInnes for upwards of 45 minutes, left with him to pay some bills on foot, and returned, only to discover the Tarago down at the repair shop lodged against a wall, near a roller-door. At the time of departing with Mr McInnes, they observed the vehicle in the same position in which it was first parked. Mr McInnes did not give evidence in the Court below and although an adjournment was granted by this Court to enable him to be called, he was unavailable at the adjourned hearing. As he was not present when the vehicle was left by Mr Pearce, no inference from the failure to call him should be drawn in the circumstances[1].
[1] Under the principle in Jones v Dunkel (1959) 101 CLR 298.
Mr Pearce said further in his evidence they were gone with Mr McInnes for about fifteen minutes and upon his return “the car had rolled down the hill and hit the Natrad Building”, that being a reference to Natrad Auto Cleaning Service operated by the Fraser brothers. Police, fire and tow-trucks were by that time already in attendance. Mr Pearce also deposed in the lower Court, evidence repeated in much the same terms in this Court[2]:
“We observed that one of the back windows was opened. I went to get the police report but it has not come back. And yeah, well I did not know, but it could have been interfered with when we had left”.
[2] Transcript 12 October 2005 P4 L14-18.
According to his evidence, it was around 3.00 pm at this time, an estimate confirmed by Mr McKenzie, an employee of the Fraser brothers, who saw the Tarago during the latter part of its journey and gave evidence in this Court to that effect.
The Proceedings in the Court below
By his defence Mr Pearce admitted that the Tarago caused the damage, that he was the owner and left it unattended in Hedley Street, and for that matter that it damaged the property. However he denied negligence and pleaded the vehicle to have been parked in the condition described above, for about one hour prior to rolling backwards and that the vehicle was “interfered with as a back window was found to be opened after the collision”. He also denied the quantum of damage claimed. By those pleadings, he effectively set up defences in ordinary parlance of accident, act of a stranger, and causation.
The matter came before a Magistrate in October 2005, both parties represented themselves, as they did again before this court. In the trial before the Magistrate, Mr John Fraser gave evidence on behalf of the plaintiff of workshop property damage caused on 3 March 2005 in the subject incident, such that the door had to be replaced and some stonework rebuilt and repainted at a cost of $4,535. He himself did not see the accident but heard the car owned by Mr Pearce “came down the hill and collided with the back wall”. A set of photographs showing the damage [Exhibit P1] was tendered through him.
Following the evidence described above, but before the evidence of a Mr Connell a loss assessor, given at a later date, the Magistrate described the case as involving “two stages”. He then observed in ex-tempore remarks:[3]
“One is the issue of liability and the other is the issue of quantum, that is the repairs to the Plaintiff’s building. I want to be candid with you both because you are - both honourable people and you have come here because you cannot resolve the matter and what I say is not intended in any way to reflect adversely on either of you. You have come here in good faith. Clearly the villain in this is the car. The car has collided with the building and there is no issue about that … . Now I think it is fair to say Mr Pearce, you’re responsible for your motor vehicle … . Now I don’t have any issue, you have told me, your friends told me, the car was locked, the handbrake was on. … Mr Pearce, cars do sometimes act strangely. They have mechanical features which sometimes are less than reliable. I obviously can’t overlook the car has collided and it should not have and it obviously from the evidence I have heard, on a hill, on an incline, caused it to freewheel. There is some suggestion that there may have been a third party involved but there’s nothing, it is too remote or faint or there is not enough in that kind of material about the window being open to say well I can’t find you as the owner of the motor vehicle are not responsible. … there is nothing I’ve heard in the evidence to persuade me, to – I can’t find that there has been some mythical third party … and the balance of probabilities … so inevitably I’d have to find that you are responsible Mr Pearce. In some way, the car has been disobedient, it has not been secured. It may well be that the weight of the motor vehicle on the incline has caused it some slippage for it to slide because neither of you were present when the accident happened”.
[3] Transcript 12 October P7 L3.
His Honour then adjourned to 17 November 2005 the issue of quantum to enable the loss assessor to be called. It was on this occasion that the assessment of damages was made.
The Application for Review
In his application to review a minor civil decision filed in this Court on 15 December 2005, Mr Pearce complains there was no evidence of negligence on his part and that the Magistrate did not consider his evidence of leaving the car safely parked. Nor, he further complains, was the evidence it remained in that condition for an hour or so before-hand. The implication in this latter ground of appeal that if the handbrake was not engaged, or the vehicle was not left in gear, it would have almost immediately commenced rolling down the hill. He repeated that contention when making oral submissions.
For this reason, the Court with the consent of both parties, took a view of the location. At the point where the vehicle was left, it is true to say Hedley Street does slope down to the South, towards the intersection 30 metres or so below, where the incline becomes gradually more pronounced. But at the point where it was left parked, the slope is not so steep as to lead to the conclusion that it would inevitably have commenced to roll as soon as Mr Pearce left it there, if at all. That being the case, it would be mere speculation to accept this point in his favour. It is equally – and if not – more likely, that passing traffic or a sudden gust of wind might have set it moving, assuming it was left unlocked and in neutral.
Since Mr Pearce did not question the amount of damages awarded, no further consideration need be given to that issue. It remains to mention that an extension of time was granted by a Master of this court by order of 31 January 2006, in which to bring this application for Review. The Master on that occasion reserved the question of the costs of that application to the trial Judge.
Analysis of the Evidence
Like the Magistrate, this court is in no position to disbelieve Mr Pearce or Mr Butcher, having observed them in the course of giving brief evidence. On a fair reading of the reasons for the Magistrate, it appears he took the view the circumstances were such that although he was equally unable to disbelieve them, he implicitly found it highly unlikely a third party would have interfered with the vehicle. Even so, he accepted, as it appears at one point, that “the car was locked, the handbrake was on …”, and yet at another that “it has not been secured”. These are obviously internally inconsistent findings. Given his acceptance of Mr Pearce, there is also an issue as to the correct application of the onus of proof in the Court below[4].
[4] See Devoe v NRMA Insurance Limited, unreported New South Wales Court of Appeal CA 40917/04, 29 August 2005.
Mr Pearce also claims to have told the police he thought someone had interfered with the vehicle and pointed out to them an opened or damaged window, which he left locked. Even if that was the case, this consideration is somewhat equivocal, as the window may possibly have moved to the open position or been damaged on impact. Mr Pearce tried during the hearing in the court below to obtain a police report as the reasons of the Magistrate suggest but was unable to do so in time. This court adjourned the matter on two occasions to enable Mr Pearce to make that enquiry, obtain and produce a police report if he could and also to identify and call the police officer to whom he spoke, in order to cast what light if any, such evidence might throw on the chances of forced interference with the vehicle.
When considering the application, this court is required to review the matter afresh; it need not identify error by the court below, before having the power to do so. Indeed the court is obliged by s38(7) of the Magistrate’s Court Act 1991 (SA) to inform itself as it thinks fit, without regard to the formal rules of evidence and to give such judgment as it thinks appropriate, having regard to the substantial merits of the case.
Analysis of Legal Issues
Res ipsa loquitur principle
In order to re-assess the merits, it is necessary to revert to basic principle. In the first place, plainly Mr Pearce owed a duty of care to take reasonable steps to position and secure the vehicle so there was no unreasonable risk it could move and cause damage: Bohdal v Streets[5] and Sisto v Sisto[6]. Secondly, as plaintiffs, the Fraser brothers bore the onus of proof on the balance of probabilities of proving negligence. No doubt in that respect they were entitled to rely on the mere fact of the car rolling downhill, as a prima facie evidence of want of due care, on the res ipsa loquitur principle. The classic statement of the circumstances where that applies was formulated by Earle CJ in Scott v London & St Katherine Docks Co. [7]:
“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose for want of care”.
[5][1984] Tas R 82, 83.
[6] No 3095, 8 October 1976 (Bright J), and appeal Nos 3200 – 3202 18 December 1976.
[7] (1865) 3 HC 596 at 601.
As indicated by Evatt J in Davis v Bunn[8], the “doctrine” is merely an application of the “general method of inferring one or more facts in issue from circumstances proved in evidence”. It is, then, an evidentiary principle which acknowledges in the circumstances to which it applies, that a plaintiff has produced sufficient evidence to avoid non-suit and to call for an answer from a defendant; a “convenient and succinct formula possesses no magic qualities: nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin”: Roe v N.O.H.[9]. Accordingly negligence may be inferred where a car runs down a hill by itself: Parker v Miller[10].
[8] (1936) 56 CLR 246 at 268 and see also Government Insurance Office of New South Wales v Fred Richberg (1968) 118 CLR 403 at 413 per Barwick CJ.
[9] [1954] 2 QB 56, 87 per Miles LJ.
[10] (1926) 42 TLR 408.
Certainly the vehicle was under the sole management and control of Mr Pearce and certainly it was unlikely to have rolled backwards without want of due care in parking it, on his part. And yet the doctrine cannot apply where there is some evidence explaining why or how the occurrence said to be negligent took place; in that event the question of negligence must be determined on the evidence according to the standard of proof applying to it. In the end result it remains for a plaintiff to identify and prove particulars of negligence: Fowler v Lanning[11]. Evershed MR in Moore v R Fox and Sons[12] put the same proposition in this way:
“It must, as I venture to think, always be a question whether upon proof of the happening of the particular event, it can with truth be said that the thing speaks for itself. The event or thing offending, may, or may not, produce that result. Not every accident has, without more, that effect. If, on a closer analysis of the happening and in circumstances, it does not in truth appear fairly to follow that the proper inference is one of negligence, then the case is not one of res ipsa loquitur at all”.
[11] [1959] 1 QB.
[12] [1956] 1 QB 596, 614.
The circumstances of this case called for an evidential explanation from Mr Pearce as defendant, Nominal Defendant v Haslbauer[13], Cream v Smith[14], Knott v Royal Exchange Assurance of London[15], an explanation he provided, an explanation accepted by the Magistrate and furthermore by this Court.
The incidence of the burden of proof
[13] (1967) 117 CLR 444.
[14] [1961] SASR 349
[15] [1955] SASR 33, 40.
There does however appear to be some disagreement in the authorities as to the incidence of the burden of proof, in the situation where it is shown a defendant was in sole control of the thing in question doing the damage when the happening was such that it could only have resulted from negligence. In that event it was frequently said that a defendant can only escape liability by affirmatively proving he was not negligent: Barkway v Southwest Transport Co Lt [16], Moore v R Fox and Sons[17], Walsh v Holst Ltd[18].
[16] [1948] 2 ACCER 460, 461.
[17] Above at 612-615.
[18] [1958] 1 WLR 800.
However, the better view in principle is one proffered in Flemming “Law of Torts”,[19] which is that the maxim raises only a “permissive presumption” and is not one “overriding legal policy that controls the initial allocation of the burden of proof … regardless of the probabilities of the particular case in hand”: and refer Kouris v Prospector’s Motel Pty Ltd[20]. This conclusion is supported by the opinion of the Privy Council in NG v Lee Chuen Tat[21] where the Board held:
“Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants”,
[19] P361-362 9^th Ed.
[20] (1976) 14 SASR 407, 430.
[21] [1988] RTR 298 (Hong Kong), at 301 compare Sleiman v Franklin Food Stores Pty Ltd, and Shooys Pty Ltd v Allan (below).
It follows from these principles that Mr Pearce ultimately bore no onus of proof in any respect. He gave evidence of leaving the vehicle correctly parked, which evidence was accepted by his Honour. Although it might appear his Honour felt third party intervention was unlikely, as it clearly was, it is at this point where principle dictates departure from the reasoning process undertaken by him. Having accepted the car was locked and the handbrake was on, it was not a question of being persuaded by the defendant (who as stated bore no onus of proof) that some other person interfered with the car.
Insofar as there was a subsequent finding that the car “had been disobedient”, that was not a relevant question either. The question was whether the plaintiffs had proved on balance an act of negligence. The reasoning of his Honour singularly fails to identify any act or omission constituting negligence. There was further error in effectively imposing strict liability upon Mr Pearce, expressed in terms of “you’re responsible for your motor vehicle” and “I can’t find you as the owner of the motor vehicle are not responsible”.
In any case as pointed out above, this court must determine the issue for itself. Although it may be accepted the chances of a third party interfering with the vehicle were unlikely, perhaps highly unlikely, that possibility however was enhanced, once the evidence of Mr Pearce and to a certain extent, Mr Butcher is accepted.
Findings of this Court
In order to resolve the case it is necessary to apply to the first principles identified above. The defence had to be considered in its legal context. First, if the vehicle was left parked and the handbrake was engaged, there was no evidence of negligence. The evidence of the defence witnesses to the effect that the vehicle was safely secured and parked, once accepted, necessarily results in the conclusion that there could be no proved negligence on the part of Mr Pearce: Martin v Stanborough[22], Bohdal v Streets[23], Ruoff v Long & Co.[24] As Avory J observed in the latter case[25]:
“It is impossible to say that those who leave standing unattended in a road a machine which will not move unless some person intentionally puts it in motion are prima facie guilty of negligence”.
The analysis, on any view, was never a question of finding “there has been some mythical third party …” involved. The evidence of Mr Pearce and Mr Butcher is such that the vehicle was secured and safely parked, at a point that it probably would not have of its own motion commenced to roll, although it might conceivably have done so because of passing traffic or from some other natural cause.
[22] (1924) 41 TLRI,
[23] [1984] Tas R 82.
[24] [1916] 1 KB 148.
[25] Above at p 152.

The inference of stranger involvement is sought to be drawn from the fact that Mr Pearce parked it very securely. The only direct evidence of interference was the window being open or damaged following impact and Mr Pearce’s description of the handbrake being in the off position when inspected by him near the Natrad building. This was a sliding window, clipped to the locked position by a lever[26]. Mr Pearce’s suggestion to the police of interference is not weighty evidence of the underlying fact, as it is almost entirely self-serving[27]. It does at the very least, refute any suggestions of recent intervention on his part. Mr Pearce called Constable Frisby in this Court, one of the two police officers attending the scene that day. Frisby has no recollection of any damage or of having spoken to Mr Pearce. Although Frisby thought that if he was told the vehicle might have been subject to interference he would have made a note, the evidence is quite inconclusive that he was the officer to whom Mr Pearce spoke. The police report takes the matter no further.
[26] Transcript 11 L21 – T12 L2, 6 June 2006.
[27] Spence v Demasi (1988) 48 SASR 536, 540-541
Otherwise the evidence throws very little light on the locking mechanism involved, the likelihood of dislodgement on impact, whether damage was likely to have been caused on forced entry, or for that matter whether it was opened (or forced open) subsequent to impact. Likewise as to the handbrake being disengaged before Mr Pearce came upon the scene.
The outcome of this case therefore falls into place once the above principles are applied. The prima facie inference of negligence is discharged by the evidence put forward on behalf of the defendant. At that point the application of the ordinary onus of proof dictates that the respondents have failed to prove or identify, on balance, any act of negligence.
Formal Orders
In the result, the plaintiffs in the Court below failed to prove negligence, so their claim for property damage ought to have been dismissed. The award of damages entered by the Magistrates Court sitting at Mount Gambier on 17 November 2005 must therefore be rescinded and a judgment in favour of the applicant (defendant) dismissing the action of the respondents as plaintiffs, substituted in its stead.
As neither party was legally represented in the proceedings before this Court, although they were represented on the application for the extension of time application, they shall have leave to call the matter on for further submissions as to costs, if they so chose[28].
[28] Pursuant to DCR 95.07(e).