Seward v Transport Accident Commission
[2022] VSC 137
•23 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S ECI 2020 04322
| LISA SEWARD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3, 4, 7 & 8 March 2022 |
DATE OF JUDGMENT: | 23 March 2022 |
CASE MAY BE CITED AS: | Seward v Transport Accident Commission |
MEDIUM NEUTRAL CITATION: | [2022] VSC 137 |
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PERSONAL INJURIES – Plaintiff driver’s vehicle slipped on oil or diesel on the highway and suffered injury – Whether negligence of unidentified driver – Inferential reasoning – the ‘RIL principle’ – Johnson v The Nominal Defendant [2003] NSWCA 153 – Lafranchi v Transport Accident Commission (2006) 14 VR 359 – Transport Accident Act 1986 (Vic), s 96 – claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | TP Tobin SC with C Spitaleri | Slater & Gordon |
| For the Defendant | PB Jens QC with A Bannon | Solicitor to the Transport Accident Commission |
HIS HONOUR:
A Introduction
On 2 June 2015, at about 8:40am, the plaintiff was driving a Honda Odyssey on the Warburton Hwy at Woori Yallock when her vehicle slid on oil or diesel[1] on the surface of the highway and collided with an oncoming vehicle. The plaintiff was injured and brings this proceeding seeking damages. During the course of the proceeding I was informed that quantum was not in issue.
[1]Described in the plaintiff’s pleading as an ‘oily diesel like substance’.
The only issue is whether the substance was on the highway by reason of the negligence of the driver of an unidentified vehicle.[2] Ultimately, it was not in issue that the substance was a cause of the collision. The contemporaneous police and other records include references to ‘oil’ on the highway[3] and several witnesses also gave evidence of having seen, in effect, ‘a trail of oil’. However, no witness gave evidence concerning a particular vehicle from which the substance concerned might have emanated.
[2]Transport Accident Act 1986 (Vic) s 96.
[3]Exhibits B, C and D.
B Authorities
The plaintiff’s claim depends upon inferential reasoning. The High Court considered such reasoning in Bradshaw v McEwans, and stated –
The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture.[4]
[4](1951) 217 ALR 1, 5. See also, Jones v Dunkel (1959) 101 CLR 298, 304-305.
The parties also referred to several further cases in which issues of the present kind have fallen for consideration. It is unnecessary to refer to all such cases, although a broad consideration of the circumstances of a few tends to highlight the present issues.
In Incorporated Nominal Defendant v Knowles,[5] the Full Court of the Supreme Court of Victoria considered a jury verdict for the respondent. The respondent motorcyclist had struck a piece of wood on the highway not far from a saw mill. The highway carried trucks carting wood and there was evidence that the piece of wood was ‘the type of log which could be found in a timber yard’. As in the present case, an issue was whether it could reasonably be inferred that the presence of the wood on the highway was ‘due to the negligence on the part of the [unidentified] driver’.
[5][1987] VR 138 (‘Knowles’).
The appellant drew attention to competing inferences, such as that the presence of the piece of wood was to be explained by a prank, or having fallen from a ‘horse-drawn vehicle’ or as a result of something done or omitted by a bystander.
However, Marks J stated –
In my opinion once the jury drew the inference that the log was dislodged from a motor vehicle it was a short step to infer that there was negligence on the part of the driver. This is because the jury was, in my opinion, entitled to infer that more probably than not the piece of wood fell from the motor vehicle as a result of the breach of duty on the part of the driver to take reasonable steps to ensure that whilst driving his motor vehicle along the roadway any load he was carrying would not be dislodged or partly dislodged on to the highway. Again, the inference that such was the cause of the presence of the piece of wood is, in my view, according to common experience, very compelling.[6]
[6]Ibid 141.
Southwell J was more ‘troubled’ in drawing the inference. His Honour referred to the submission of the appellant that ‘the possibilities are unlimited’, but concluded that it had been open to the jury to draw the inference; mostly, it seems, because in the case of nearly every such possibility ‘one returns to the point where the driver has the ultimate responsibility’.[7]
[7]Ibid 145.
McGarvie J agreed in the reasons of Marks J and Southwell J.
In Knowles, the Full Court also considered the earlier Full Court decision of Incorporated Nominal Defendant v Kemp and Shaw,[8] in which a collision between vehicles had occurred because the plaintiff had attempted to pass over a log of wood on the road which had become stuck causing the vehicle to lose control. Again, the jury had evidently drawn the inference.
[8]Full Court of the Supreme Court of Victoria, Lowe, Smith and Monahan JJ, 24 August 1961.
In that instance, there was evidence that shortly before the collision, and not far away, a sedan had been seen towing a trailer loaded with wood. The load was ‘fairly loose’ and higher than the sides. There was also evidence of a log ‘very precariously balanced and likely to fall at any moment onto the highway’. There was, however, no evidence that the log in question had fallen from that motor vehicle. The appeal to the Full Court was dismissed.
By contrast, in Johnson v The Nominal Defendant,[9] the Court of Appeal of New South Wales dismissed an appeal from the District Court in a case in which the judge had considered unexplained diesel on the roadway on which the plaintiff’s motorcycle had slipped causing him to suffer injury. Several potential scenarios had been posited and the judge had been unable to reach an ‘affirmative conclusion’.
[9][2003] NSWCA 153 (‘Johnson’).
The appellant argued that there were only ‘two possible scenarios’, both of which led to an inference of negligence. Ipp JA (with whom Meagher and Beazley JJA agreed) considered there to be a ‘third alternative’, namely ‘a crack somewhere in the vehicle concerned, whether in the fuel tank or the fuel line or somewhere else’.[10] In that connection, his Honour stated –
It is common knowledge that there are some vehicles on the road today that contain flaps underneath the fuel tank cap. This flap is capable of closing off, at least to some degree, the fuel line. There is no evidence as to how likely it is for fuel to escape from such a vehicle if the fuel cap is not replaced, or if it is defectively replaced, or if it simply does not fit properly. There is also no evidence as to how many vehicles there are on the road, using diesel fuel, which are fitted with such flaps.[11]
[10]Ibid [15].
[11]Ibid [18].
His Honour considered a further consideration to be ‘fatal’ to the appellant’s argument, namely that it was ‘not known who filled the vehicle concerned, with fuel, prior to it escaping’.[12] In that connection, his Honour contemplated the prospect that the vehicle had been filled with fuel by a person other than the driver and noted the submission of the appellant to the effect that it was ‘the duty of the driver … to check the fuel cap to make sure that it has been properly sealed’.[13] His Honour thereafter stated –
The thrust of this submission is that there is a non-delegable duty on a driver to ensure that a fuel cap properly seals the fuel tank. I am quite unable to accept this submission. In my opinion, a driver is perfectly entitled to rely on the attendant at a service station to put back the petrol cap without the driver, personally, having to check it. Take the following situation as an illustration. It is not uncommon for an owner of a vehicle, when having its regular service, to request the service station concerned to fill up the vehicle once the service has been completed. To suggest that, on collecting the vehicle, the owner or driver must go and check the fuel cap to ensure that it has properly sealed the fuel tank, in my opinion, is far fetched.[14]
[12]Ibid [20].
[13]Johnson (n 9) [23].
[14]Ibid [24].
In conclusion, his Honour identified that there were ‘at least four scenarios that could have caused the diesel to be on the roadway’ and that two were consistent with negligence but two were not. His Honour considered that there was ‘no possible basis on which the Court can decide which of the four is the most likely’.[15] In that connection, his Honour referred to both Knowles and Padget v Motor Accidents Insurance Board,[16] but noted that each case either did or, in the case of Padget, would in due course have depended upon ‘the actual circumstances’.[17]
[15]Ibid [25].
[16](1996) 23 MVR 411 (‘Padget’).
[17]Johnson (n 9) [26]-[27].
The reasoning in the cases to which I have referred, and in other such cases, is, in my view, heavily influenced by all of the relevant facts and circumstances combined with what Marks J in Knowles described as ‘common experience’ and Ipp JA in Johnson described as ‘common knowledge’. In that connection, whether or not the Court is prepared to draw the inference of negligence in respect of an unidentified driver tends to be determined by how readily the scenarios concerned may be envisioned and whether all, most or only some of them might be said to bespeak the negligence of the driver (as opposed to some other person).
Finally, the parties referred to the principle of res ipsa loquitur, considered by the High Court in Schellenberg v Tunnel Holdings Pty Ltd[18] and, subsequently, by the Court of Appeal in Lafranchi v Transport Accident Commission,[19] where it was referred to as the ‘RIL principle’. In that connection, Maxwell P and Neave JA identified the necessary conditions as follows –
[18](2000) 200 CLR 121 (‘Schellenberg’).
[19](2006) 14 VR 359 (‘Lafranchi’).
(a) there must be an absence of explanation of the occurrence that caused the injury;
(b) the occurrence must have been of such a kind that it does not ordinarily occur without negligence; and
(c) the instrument or agency that caused the injury must have been under the control of the defendant.[20]
[20]Ibid [6]-[7].
C Witnesses and other evidence
Melways maps 287 and 288 were tendered[21] and appear as ‘Annexure 1’ to these reasons. The site of the plaintiff’s accident was on the Warburton Hwy, just past Lusatia Park Rd, slightly off map 287 (A9).
[21]Exhibit H.
Four photographs of the accident scene were tendered into evidence.[22] The photographs show the plaintiff’s vehicle to be severely damaged and on the ‘other side’ of Warburton Hwy.[23] The photographs show the conditions to have been dim, wet and misty.[24]
[22]Exhibit A.
[23]Particularly, Exhibit A, CB222 and CB223.
[24]Particularly, Exhibit A, CB223.
A view was undertaken pursuant to s 53 of the Evidence Act 2008 (Vic). The accident site and various other relevant sites were viewed. The content of the view – and various photographs taken during the course of it – were recorded in a document, the contents of which were agreed.[25]
[25]Amended Record of View dated 4 March 2022. Cf, Evidence Act 2008 (Vic) s 54.
The following witnesses gave oral evidence –
(a) the plaintiff;
(b) John Hall;
(c) Alan Johnston; and
(d) Emma Harrison.
The defendant did not call any evidence.
The plaintiff
On 2 June 2015, between 8:15 and 8:20am, the plaintiff turned left onto the Warburton Hwy from Little Yarra Rd – see ‘Annexure 1’, map 288 (E8). The traffic was ‘moderate’.[26] She followed the Warburton Hwy to the site of the accident, travelling at between 70 and 80 kmph.[27] That is a distance of about 9 kilometres.[28] The distance from the intersection of Corduroy Rd to the accident site is ‘maybe’ 5 or 6 kilometres.[29] The speed limit at the site of the accident was 80 kmph.[30]
[26]T60.
[27]T61.
[28]T107.
[29]T108.
[30]T104.
The plaintiff gave evidence that the roads were wet and there was ‘spray in the air because of the rain’. The windscreen wipers and lights of her vehicle were operating.[31]
[31]T61. See also, T104 & T97-100.
The plaintiff saw no sign of oil or diesel on the Warburton Hwy.[32] At the point of the accident she felt the back end of her car ‘fishtail’ and her vehicle slid into the oncoming lane. She has no memory of the collision.[33] Her vehicle was ‘totally uncontrollable’.[34]
[32]T107.
[33]T62-63.
[34]T64.
After the accident, the plaintiff saw material on the road that reminded her of ‘kitty litter’.[35]
[35]T66. See also, T110.
She had seen trucks using the Warburton Hwy.[36]
[36]T112-113.
John Hall
Mr Hall is a retired orchardist. He has lived in Warburton since 2010.
Mr Hall gave evidence of turning right onto the Warburton Hwy from Corduroy Rd – see ‘Annexure 1’, map 288 (C6). Prior to that, Mr Hall had travelled along Station Rd, Railway Rd and Settlement Rd before turning left into Corduroy Rd and arriving at the intersection of Corduroy Rd and Warburton Hwy (all appearing on map 288). He was following a well-known ‘short cut’ used by locals.[37]
[37]T75.
Mr Hall saw ‘oil on the road’. He noticed it ‘somewhere on Station Road’[38] and it continued into Railway Rd, Settlement Rd, Corduroy Rd and then on to Warburton Hwy. He said –
I was following some sort of oil trail, which to me I guess probably diesel or hydraulic oil out of some decent sort of machinery, perhaps on the back of a truck is what I was thinking, but I definitely recall the oil trail.[39]
[38]T70. See also, T74.
[39]T70.
Mr Hall considered the trail to be ‘maybe an inch to three inches’ wide[40] and later agreed that it was a ‘thin line’, including on Warburton Hwy.[41] At the intersection of Corduroy Rd and Warburton Hwy he saw a ‘bigger patch’[42] which he later described as ‘a bit of a puddle’.[43] He ‘would have thought’ that it was ‘quite fresh’.[44] He later described the ‘oil’ as follows –
My initial thought was diesel, diesel or hydraulic oil, but, you know, rather than being – it wasn’t a dark black oil, it was just – it looked like a light oil, to me, but it was definitely oil and not water, I could tell that.[45]
[40]T73.
[41]T77 & T81.
[42]T71.
[43]T73. See also, T82.
[44]T73.
[45]T76.
As to its origin, he then said -
I thought possibly a bulldozer or something on the back of a low loader which often use that road, but that’s a guess.[46]
[46]Ibid.
He agreed that there could be ‘any number of possibilities’,[47] but later said –
Those type of vehicles also carry massive tanks of diesel and so on for their machinery, going to a job, so it could be that or hydraulic oil.[48]
[47]T76-77.
[48]T82.
Mr Hall described the trail as ‘a continuous thing from one vehicle’.[49] It was in the left hand lane and he was ‘probably straddling it most of the way’.[50]
[49]T71.
[50]T72-73.
He did not see the accident scene.
Mr Hall could not recall –
(a) where he was going or how far he travelled along Warburton Hwy;[51]
[51]T70.
(b) the time of day;[52]
(c) the weather;[53] and
(d) whether the trail ceased or not.[54]
[52]T72
[53]T73.
[54]T80.
Mr Hall thought that it was ‘daylight’ and that the road was ‘dry’.[55] He did not agree that it was possible that it was wet. He did not recall any ‘rainbow effect’ on the road. He was ‘quite sure’ that it was not raining.[56]
[55]T73.
[56]T81.
Alan Johnston
Mr Johnston is a friend of Mr Hall and a retired school principal.
Mr Johnston could not recall the weather on the day,[57] although he later contemplated that ‘it could well have been damp’.[58]
[57]T117.
[58]T122.
He saw a ‘trail of oil’ come out from Corduroy Rd onto the Warburton Hwy. He followed it all the way to the scene of the accident, which was ‘quite a considerable distance’. He said that there was a ‘continual stream’ that varied ‘between 5 and 10 centimetres in width’ to the left of the centre of the lane.[59]
[59]T117-118.
As to the origin of the substance, Mr Johnston was asked whether it could have come from a ‘truck that had a leaking drum on it’ and said –
Well, I would have assumed that it was something like that because of the distance that it went. I thought had it been coming out of somebody’s tank, it would have run out by now. Had it been a leak from a sump or something like that, it would definitely have run out and that vehicle would have ground to a halt. So I assumed that it had been coming out of a drum being carried by a truck or a trailer or something like that.[60]
[60]T122-123.
He agreed that, within limits, ‘anything was possible’. He agreed that his thoughts as to the origin of the substance were because of the length of ‘the line of oil that translates into volume of oil’.[61]
[61]T123. See also, T126.
Emma Harrison
Ms Harrison is an accountant.
She travelled along Little Yarra Rd and turned left into Warburton Hwy. It was raining. There was ‘oil’ on the road and it was wet. She was a ‘bit concerned’. She came to the scene of the accident. She recalled that the ‘oil spill’ covered ‘kilometres’ starting at about Corduroy Rd. She had seen oil before the day of the plaintiff’s accident. On that day, it was a ‘continuous strip’ that was ‘in the middle of the two wheels of the car’. From memory, she thought it was ’about 40 centimetres’ wide. She thought it was ‘diesel fuel’.[62]
[62]T128-130.
As to the ‘oil’ in the past, she did not remember ‘as much as this day’.[63] She had a friend – Tony Wonham – who had ‘spun out’ when driving a car.[64]
[63]T132. See also, T134 & T139.
[64]T133-134. See also, T141-142, T146 & T147.
Ms Harrison was taken to and confirmed the contents of earlier statements, including to the effect that while she was unaware of what caused the oil to be on the road, she suspected that it had been ‘leaking out of a truck’.[65]
[65]T138.
Other evidence
As I have noted, various contemporaneous police and other records were tendered into evidence that referred to ‘oil’ having been on the road on the day of the accident[66] as well as on a day in mid-May 2015.[67]
D Submissions
[66]Exhibits B, C and D.
[67]Exhibits E and F.
Plaintiff
The plaintiff emphasised the magnitude of the spillage and its continuous nature. It was submitted that it was ‘consistent with spillage rather than mechanical failure of a vehicle’ and ‘inferentially from a load’.[68]
[68]T162-163.
In that connection, the spillage was said to be consistent with ‘negligence in the loading and/or supervision of the load’.[69] In respect of ‘incorrect’ loading, senior counsel explained as follows –
…when we say loading incorrectly, loading a drum that was leaking, or something of that nature, or even a piece of machinery where the fuel from that machinery may leak; or secondly, failing to properly secure and check the security of the load.[70]
[69]Plaintiff’s outline of submissions dated 8 March 2022, [21].
[70]T164.
Senior counsel for the plaintiff also relied upon what I have earlier referred to as the ‘RIL principle’.[71] He submitted that –
[71]Lafranchi (n 19).
(a) there was an ‘absence of explanation’ of an occurrence, namely the oil trail;
(b) it was ‘unlikely to occur without negligence on the part of the driver of an unidentified vehicle’; and
(c) the vehicle was ‘under the control of the unidentified driver’.[72]
[72]T168.
In reply, senior counsel for the plaintiff referred to Knowles.[73]
[73]T187-189.
Defendant
Senior counsel for the defendant took issue with some of the emphases in the facts sought to be relied upon by the plaintiff. In particular, senior counsel took issue with the suggestion that the weather had been clearing and emphasised the circumstances in which the driver of the unidentified vehicle must have found him or herself driving in rain or the wet with mist and spray obscuring vision on a road that could have been or was carrying at least moderate traffic.
Senior counsel referred to the decision of the New South Wales Court of Appeal in Johnson as well as the decision of the Victorian Court of Appeal in Lafranchi. In light of the conditions, senior counsel submitted that it was likely that the driver of the unidentified vehicle had been ‘totally oblivious’ to any leakage.[74] He ultimately submitted that there were ‘so many variables that could be at play’[75] that it was not possible to be satisfied that the trail of oil or diesel had been deposited on the road by reason of the negligence of an unidentified driver.
[74]T178.
[75]T186.
E Consideration
Any area of factual dispute is very limited and little, if anything, turns upon it.
Mr Hall did not recall it to be wet, and nor did Mr Johnston; but Mr Johnston conceded the possibility, and the plaintiff and Ms Harrison referred to the wet road and rain or drizzle. The plaintiff confirmed that there was road spray and that she had her windscreen wipers and headlights on.
I accept the evidence that it was dim and misty, the roads were wet and there was rain or drizzle. So much is consistent with the contemporaneous records to which senior counsel for the defendant referred in address[76] and also the photographs from the accident scene.[77]
[76]Exhibit B.
[77]Exhibit A. Particularly, CB223.
I also accept that drivers must have been affected by ‘road spray’ in addition to the mist and rain or drizzle.
I do not accept the submission of senior counsel for the plaintiff that Mr Hall was on the road at a later time when the weather was ‘clearing’. Mr Hall seemed to be on the road at a time proximate to the accident.
As I have earlier indicated, the defendant accepted that there must have been oil or diesel on Warburton Hwy and that the plaintiff’s vehicle must have slipped on it. In that context, there was no issue but that there was a significant ‘trail’ of oil or diesel fuel on the highway for several kilometres prior to the point of the accident.
I accept the evidence of Mr Hall that the trail started, or at least he first noticed it, on Station Rd and it continued from there relatively continuously along Railway Rd, Settlement Rd, Corduroy Rd and then out onto the Warburton Hwy.
The evidence of Mr Hall, Mr Johnston and Ms Harrison was not perfectly consistent about the width of the ‘trail’, and Mr Hall gave evidence of a ‘puddle’ on Corduroy Rd at the intersection with Warburton Hwy. In light of Mr Hall’s recollection of dry conditions, I do not accept that it was necessarily a puddle of wholly oil or diesel. The conditions could also have affected the width of the ‘trail’ at various points, as well as the perception of its width by the various witnesses.
In my view, nothing turns on either the ‘puddle’ or the width of the ‘trail’: on any view there was a significant trail of oil or diesel near the middle of the left hand lane of the roads to which I have referred and over a distance of several kilometres. Several witnesses referred to straddling the trail with their car. The particular part of the Warburton Hwy undulates and somewhat meanders. It also carries large trucks, including trucks with machinery.[78]
[78]T112-113. Cf., Amended Record of the View dated 4 March 2022.
There may have been some oil or diesel on the Warburton Hwy prior to the date of the incident; however, Ms Harrison recalled there being more on the day. In address, the senior counsel for the defendant essentially confirmed that nothing turned on the point. Both parties ultimately approached the issue on the basis that the relevant trail of oil or diesel must have been of a significant dimension and relatively ‘fresh’ at the time of the accident.[79] In that regard, senior counsel for the plaintiff pointed out that the oil or diesel had seemingly not yet been significantly moved over the roadway by the movement of vehicles.[80]
[79]T173, T178-179 & T187.
[80]T158.
Having regard to the consistency of the trail and the fact that it could be straddled in the left hand lane of several different roads, including the undulating and meandering Warburton Hwy, I accept that it must have been deposited on the roadway by an unidentified vehicle shortly before the accident on 2 June 2015.
The more difficult issue is whether it can be accepted that the trail was deposited on the roadway as a consequence of the negligence of an unidentified driver (as opposed to a vehicle). The answer to the present issue must be determined by inferential reasoning; which, I have noted, has its limits.
Nothing is directly known concerning the vehicle in question. However, several witnesses – familiar with the area, the relevant roads, the vehicles on those roads and the particular trail of oil or diesel – posited potential ‘scenarios’. As I have earlier noted –
(a) Mr Hall referred to –
(i) ‘some sort of machinery, perhaps on the back of a truck’;
(ii) ‘a bulldozer or something on the back of a low loader’;
(iii) the fact that such trucks ‘also carry massive tanks of diesel for their machinery’; and
(iv) in that context, ‘any number of possibilities’;
(b) Mr Johnston –
(i) assumed the trail had been coming from a drum being carried by ‘a truck or trailer or something like that’;
(ii) otherwise acknowledged that ‘anything was possible’; and
(c) Ms Harrison contemplated that the oil or diesel had been ‘leaking out of a truck’.
In most if not all of the above scenarios it is not difficult to envisage that even if there was any negligence involved it would not necessarily be that of the driver of the truck or low loader concerned. In the modern industrial environment, any bulldozer, machinery or drums may well be the responsibility of and loaded onto the truck or low loader via processes involving employees, sub-contractors or persons quite distinct from the driver of the truck or low loader.
Further, the leak may well come about as a consequence not of any fault in the bulldozer, machinery or drums, or even any fault of the person owning, possessing or loading it, but as a consequence of inattention by some entirely different person that filled it with fuel at an earlier and indeterminate time. Akin to the observations made by Ipp JA in Johnson, any contention that the driver of a truck or low loader carrying the machinery concerned must check the fuel caps of that which is loaded is ‘far fetched’.
In addition, the mere fact that any such bulldozer, machinery or drum later springs a leak could not necessarily stand to implicate the driver of the vehicle carrying it. In that regard, I note that the trail of oil or diesel seems to have been first noticed by Mr Hall in Station Rd and may well have started there. However, the evidence did not otherwise link the source of the trail to any particular property or business; which gives rise to a sequence of further permutations or combinations of the scenarios above by reference to the potential for such truck, bulldozer, machinery or drum to have been damaged while in transit from places unknown and then sprung a leak. Such damage could, conceivably, be inflicted by a rock kicked up from a passing vehicle, but could also be inflicted by a jolt when the vehicle passes over a bump on the country roads concerned. That is not to limit the potential scenarios in which such damage might be inflicted.
As to the submission that the driver concerned must have failed adequately to supervise his or her load when driving on the morning because a leak sprung from it and remained undetected for some kilometres, I must reject it. Among other things –
(a) the trail of oil or diesel appeared in or about the middle of the left hand lane of the roads concerned – so the leak most likely emanated from behind the vehicle or underneath it;
(b) the conditions of dim light (if not dark), rain and road spray must have significantly impeded the driver in being able to detect a leak of that kind while in transit, even if it could have been seen on the roadway behind the vehicle (and the fact that it was not detected for such a distance tends to suggest that the driver, in fact, did not see it);[81] and
(c) in that regard, I note that the trail was later seen by Mr Hall, Mr Johnston and Ms Harrison – when it was in front of them and so able to be seen through the front windscreen of their respective vehicles – but even in those circumstances it was not seen by the plaintiff in the prevailing dim, wet and misty conditions.
[81]Oil or diesel is valuable: it is hard to imagine a driver simply shrugging off a leak of the magnitude concerned.
Finally, I accept that the possibilities concerned must extend well beyond those identified by the witnesses and to which I have referred.
I am conscious of the process of inferential reasoning which the plaintiff seeks to call in aid: it is not necessary for her to exclude ‘reasonable hypotheses consistent with innocence’ and she need only raise ‘a more probable inference in favour of what is alleged’.[82] However, there must still be circumstances such as to give rise to one or more ‘reasonable and definite inference[s]’ that negligence of the driver of the unidentified vehicle was a cause of the presence of the oil or diesel trail on the roadway.
[82]Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5-6.
In the present context, for the reasons that I have sought to explain, there are many potential scenarios that arise. Imagination, of course, permits of scenarios that include the potential negligence of the driver of the unidentified vehicle. However, it also permits of many scenarios in which there is either no negligence at all or negligence of someone else entirely. To me, on the evidence, and as in Johnson, there is no possible basis to determine which one or more of the many scenarios is the more probable.
Unlike Knowles, the present is not a case in which nearly all of the scenarios return to a point at which the driver has ‘ultimate responsibility’. Further, Knowles was an appeal from the verdict of a jury. The Full Court considered that in the circumstances it had been open to the jury to draw the inference. That does not mean that in the present case any such inference should be drawn merely if it might be able to be said to be ‘open’. The inference invited by the plaintiff must be a ‘more probable inference’.
In the circumstances, I am not able to be satisfied that there are one or more ‘probable inferences’ in favour of what is alleged. In my view, on the evidence, the position concerning any negligence in connection with the trail of oil or diesel is ultimately too speculative and there are too many potential scenarios consistent with the driver of the unidentified vehicle having no liability in negligence.
As to the ‘RIL principle’, I am not satisfied that the necessary conditions – which are cumulative – are established. Even if it be assumed that there is an absence of explanation of the ‘occurrence’ that caused the injury,[83] for the reasons outlined –
(a) I cannot accept that the present circumstances are ‘unlikely to occur without negligence’ of the driver;
(b) nor do I accept that the equipment concerned (whatever it was) must have been under the ‘control’ of the driver.
[83]Which may well be a contestable assumption: see, Schellenberg (n 18) [26]-[38].
F Conclusion
The plaintiff has not established, on the balance of probabilities, that she was injured by reason of the negligence of an unidentified driver. Subject to hearing from counsel, it seems to me to follow that the claim must be dismissed.
ANNEXURE 1
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