Russell George Smith v Ian Paul Crummey No. SCGRG 90/1882 Judgment No. 3768 Number of Pages 6 Criminal Law and Procedure General Principles - [1992] SASC 3768

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MOHR J

CWDS
Criminal law and procedure - general principles - Road accident - liability - plaintiff experienced truck driver - semi-trailer - swerved to miss defendant's van - truck rolled - closed head injury incurred by plaintiff - reject evidence of the defendant - witnesses testimony suggest defendant partially blinded by sun - failed to observe plaintiff's truck approaching - commenced turn - plaintiff swerved to avoid an 'horrendous collision' - memory loss by plaintiff - hypnosis - reconstruct accident through photogrammetry.

HRNG ADELAIDE, 30 November 1992 #DATE 17:12:1992
Counsel for plaintiff:     Mr P Eriksen
Solicitors for plaintiff:    Herman Bersee
Counsel for defendant:     Mr A Hilditch
Solicitors for defendant:    Ward &; Partners

ORDER
Defendant found to be solely at fault.

JUDGE1 MOHR J When this action was called on for hearing, counsel informed me that because of a recent deterioration in the plaintiff's medical condition it would not be appropriate to proceed with any consideration of the question of damages. Accordingly, the case proceeded on the basis that the only issue before me was that of liability. 2. The plaintiff was an experienced truck driver. He had about 22 years experience and knew the roads and route he would follow. 3. On the 11th October 1988 he was the driver of a semi trailer en route from Newcastle in New South Wales to Adelaide. He had left Newcastle just after midnight on the 10th October. In the early hours of the 11th October he had reached Accommodation Hill near Truro. He pulled up in a rest area and went to sleep. I mention in passing that during the trip from Newcastle to Accommodation Hill he had taken various rest and meal breaks. 4. At about 4.30 a.m. on the 11th October he was woken by his alarm. He looked around and decided he had plenty of time to complete his journey to Adelaide by his scheduled arrival time of 8 a.m. He slept for another half hour and proceeded. 5. He then drove in a generally westerly direction along the Sturt Highway. It was not challenged at the trial that he was then in full possession of his faculties. 6. The plaintiff gave evidence and it is necessary to say something regarding this. There can be little doubt that the plaintiff suffered a closed head injury as a result of the accident. Consequently he had a loss of memory for the events leading up to the accident. He said that at first he had no memory of events from the time he was at Accommodation Hill but he said after about three months he began to have a progressive recovery of his memory until he had almost complete recall of events. He said however, he could not say that what he believed to be a memory was truly such or whether it was a reconstruction following many discussions of events as recounted by other people who knew parts of the events.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Russell George Smith v Ian Paul Crummey No. SCGRG 90/1882 Judgment No. 3768 Number of Pages 6 Criminal Law and Procedure General Principles [1992] SASC 3768
Case: [1992] SASC 3768
Decision Date: 17 December 1992

CaseChat Overview and Summary

The case of Russell George Smith v Ian Paul Crummey was heard in the Supreme Court of South Australia, presided over by Justice Mohr. The dispute involved a road accident where the plaintiff, an experienced truck driver, collided with the defendant's van. The plaintiff, who suffered a closed head injury, alleged that the defendant was at fault due to his failure to observe the plaintiff's truck approaching and initiating a turn across the plaintiff's path. The defendant claimed he was partially blinded by the rising sun and did not see the plaintiff's truck until it was too late.

The primary legal issue was to determine the liability for the accident. The court had to assess the credibility of the defendant's evidence that he was blinded by the sun and did not observe the plaintiff's truck until it was too late, against the plaintiff's version of events, supported by witness testimonies and a reconstruction of the accident. The court also had to consider the plaintiff's memory loss and whether his recollection of the events could be trusted.

Justice Mohr rejected the defendant's evidence and found it more probable than not that the defendant, partially blinded by the rising sun, did not observe the plaintiff's truck and commenced a turn across the plaintiff's path. This left the plaintiff with no option but to apply his brakes hard and swing to his right in an effort to avoid a collision. The court found that the defendant was solely at fault for the accident.

The court found that the defendant was solely at fault and awarded damages to the plaintiff. The exact amount of damages was not specified in the judgment as the matter was not proceeded with due to the plaintiff's deteriorating medical condition.

Orders