Seward v Transport Accident Commission - [2022] VSC 137

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…

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

Case: [2022] VSC 137
Decision Date: 23 March 2022

CaseChat Overview and Summary

Seward v Transport Accident Commission involved the plaintiff, Seward, who claimed compensation for injuries sustained when his vehicle slipped on a substance on the highway. Seward contended that the substance was oil or diesel, likely from another vehicle, and sought compensation from the Transport Accident Commission under the Transport Accident Act 1986 (Vic). The key issue was whether the unidentified driver was negligent and whether Seward could establish this through inferential reasoning. The court had to consider the applicable legal principles and precedents, particularly the 'RIL principle' as elucidated in Johnson v The Nominal Defendant [2003] NSWCA 153 and Lafranchi v Transport Accident Commission (2006) 14 VR 359.

The court examined whether Seward could infer negligence on the part of an unidentified driver, based on the presence of oil or diesel on the road. It considered the principles established in prior cases, such as Johnson and Lafranchi, which set out the conditions under which negligence can be inferred. The court had to determine whether Seward provided sufficient evidence to establish that the unidentified driver's negligence caused the accident. This involved assessing the reliability and sufficiency of the evidence provided by Seward and whether it met the legal standards for establishing negligence in such circumstances.

The court concluded that Seward failed to establish the necessary causal link between the unidentified driver's alleged negligence and the accident. It found that the evidence did not meet the threshold required to infer negligence under the 'RIL principle'. Consequently, the court dismissed Seward's claim for compensation under the Transport Accident Act 1986 (Vic). The reasoning centred on the lack of concrete evidence to definitively attribute the presence of oil or diesel on the road to any specific driver's negligence. This decision highlights the stringent evidentiary requirements for establishing negligence in cases involving unidentified parties.

Orders