Swain v Kalaja

[1993] QCA 120

THE COURT OF APPEAL	[1993] QCA 120
SUPREME COURT OF QUEENSLAND

Appeal No. 250 of 1992

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Shepherdson

[Swain v Kalaja]

BETWEEN

MARK SWAIN

(Plaintiff) Respondent

- and -

MARK KALAJA

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6/04/1993

This is an appeal by the defendant against a judgment in favour of the plaintiff for damages for personal injuries awarded in an action in the District Court. The action arose out of a collision between a motor cycle ridden by the plaintiff and a car driven by the defendant.

The collision took place at about 11.50 a.m. on 22 August 1982 in Archerfield Road, Richlands. Looking north it was in the left-hand land opposite the entrance to a driveway into the defendant's place of residence. Archerfield Road is a two-lane highway running in a north-south direction, and the plaintiff was travelling north along it when the collision occurred. At the moment of collision the defendant's car was straddled across the left-hand lane at right angles to the plaintiff's direction of travel. The motor cycle struck the defendant's car at the rear of that vehicle on the passenger's side.

There is no substantial dispute about any of the facts so far recited. At the trial there were conflicting versions of events leading to the collision. The defendant, and his wife and son gave evidence which, if believed, would have meant that the defendant was driving his vehicle northwards along Archerfield Road, and that, after activating his car's left hand indicator, he was turning left to move into his driveway when his vehicle was struck by the plaintiff's motor cycle.

The trial judge rejected this account of what had happened adding in particular that he doubted the honesty and reliability of the son's testimony, who claimed to have seen the incident from the verandah of his parents' house.

The case for the plaintiff at the trial was that while he was travelling north in the left-hand lane, the defendant was driving south in the other lane; as the defendant approached the driveway he turned across the path of the plaintiff's oncoming motor cycle in order to enter the driveway. This was how the plaintiff came to collide with the rear of the defendant's vehicle on the passenger side.

Although it was the plaintiff's case at the trial which was accepted by the learned judge, the eye-witness testimony in support of it was not complete. The plaintiff was rendered unconscious and he evidently suffered some loss of memory as a result of the collision. However, he did recall he was travelling north in Archerfield Road and also that at the time he could see perhaps as much as 500 m. ahead of him. He saw no vehicle in the left-hand lane; but he did observe a car approaching in the opposite direction in the right-hand lane.

He remembered it as being light-coloured, whereas there is no doubt that the defendant's vehicle with which he collided was dark brown in colour.

The plaintiff was cross-examined at some length, and was repeatedly questioned about what details of the accident he remembered. The following passage is representative of a number of the answers he gave:

"You went on to say, 'I do recall, however, the road ahead of me was clear'? -- Exactly, yes, that's right.

Now, you've given evidence today about seeing a light coloured vehicle? -- Right.

And although you did not expressly say that you saw that vehicle turn in front of you, the effect of what was said later in your evidence in response to questions from Mr Read, your counsel, was that that was the vehicle that turned in front of you. Do you know that to the case, or not? --The only - look it's the same - it was the same colour vehicle, sedan, the same colour a matter of - I don't know, I can't be 100 per cent sure, but a split second from when I seen that car till it was sideways in front of me, it was the same colour car, the same type of car.

Whether there was 2 the same colour and one kept going and the other one turned in front, I don't know. All I know is I only ever seen one car coming towards me. I know what the colour of the car was, or I don't know the colour, it was a light-coloured colour, and the same light-coloured car was sitting sideways in front of me. That's how I'm explaining.

That's all I know. I can't pull something out of

the air for you.

Well, I suppose another explanation might be that you were mistaken in believing that the road ahead of you in your lane was clear? -- I'm not mistaken about it being clear at all."

In this Court the appellant has not challenged the trial judge's findings on credibility. The submission on appeal is that the plaintiff's case was based on the assumption that the defendant's southbound vehicle had turned across the path of the plaintiff's northbound motor cycle; but that the assumption was one that was not supported by evidence in the case or by any legitimate inference from it.

It is necessary to bear firmly in mind that at the trial the only explanations advanced for the collision were the two already mentioned. These were the plaintiff's version, which was that the defendant was approaching from the opposite direction and turned across the plaintiff's path; and the defendant's version, which was that he was travelling ahead of the plaintiff and in the same direction, when he turned left into the driveway. The defendant's version was rejected by the judge, whose decision to that effect has not been challenged.

This left for consideration only the plaintiff's version, which the judge accepted. On appeal an attempt was made, if somewhat faintly, to suggest some other explanation for what happened, such as that the collision occurred when the defendant was reversing out of his driveway on to the road; but that hypothesis finds no foundation in any of the evidence; it was not suggested by or to anyone at the trial; and it is contrary to the defence as it was pleaded.

The only question therefore is whether there was evidence capable of supporting the conclusion that the plaintiff's version represented the correct explanation of what had happened. In favour of it was the plaintiff's evidence that, shortly before the collision, the road ahead of him was clear; that the only vehicle in front of him was the vehicle travelling in the opposite direction; and that it was the same one that he suddenly found sitting "sideways" across the road in front of him, which was the vehicle he collided with.

The plaintiff was not able to give, and did not give, evidence that the vehicle he saw and then collided with had in fact turned across his path; but what he did say was that he first saw it coming towards him in the other lane, and then sideways across his path of travel. In these circumstances the only reasonable inference is that the other vehicle had turned to its right in front of him, in order no doubt to enter the defendant's driveway. There was, it is true, no evidence from anyone who claimed to have seen this manoeuvre being undertaken; but, as the High Court said in Holloway v. McFeeters (1956) 94 C.L.R. 470, 480-481, it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred:

"Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture : See per Lord Robson, Richard Evans & Co. Ltd. v. Astley ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'."

The only obstacle to accepting a conclusion that the defendant had turned across the plaintiff's path was the plaintiff's evidence that the vehicle he saw in the other lane was light brown, whereas incontestably the defendant's vehicle

was dark brown. Despite this difference, the plaintiff nevertheless affirmed that it was the same car and the same type of car that he collided with. That being so, the only reasonable conclusion from all this is that the plaintiff's memory was at fault when he said that the vehicle he saw and collided with was light brown. A mistaken impression after the event about a matter like colour, formed in the fleeting moments before the traumatic experience of a motor vehicle collision, is not so extraordinary as to justify rejection of the whole of the plaintiff's evidence, or reasonable inferences that can properly be based on it.

There is thus no reason for interfering with the findings of the trial judge in this case. The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 250 of 1992

Brisbane
[Swain v Kalaja]

BETWEEN

MARK SWAIN

(Plaintiff) Respondent

- and -

MARK KALAJA

(Defendant) Appellant

The President
Mr Justice McPherson

Mr Justice Shepherdson

Judgment delivered 6/04/93

Reasons for judgment by the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS	PERSONAL INJURY - Liability - Motor vehicle accident - Whether factual assumption supported by evidence
Counsel:	D. Fraser Q.C. for the appellant E. Read for the respondent
Solicitors:	Neil O'Sullivan & Rowell for the appellant Bowdens for the respondent

Hearing Date: 30 March 1993