The Nominal Defendant v Owens, Richard John

IN Ti FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT R!3GISTRY

GENERAL DIVISION

No. NTG 24 of 1977

AN APPEAL FROM TH9 SUPREME

COURT OF THE NORTHERN

TERRITORY OF AUSTMLIA

BETWEEN:

THE NOMINAL DEFEh-ANT

. .

Appellant and Respondent

to the Cross Appeal

(Defendant)

AND:

RICHARD JOHN

OWENS

Respondeh and Cross

. . Appellant

(Plaintiff)

CORAM:

Muirhead, St. John, Fisher JJ.

REASONS FOR JUDGMENT

MUIRHEAD J.:

This is an appeal

from a decision of the

Supreme Court of the Northern Territory delivered on

20 December 1976, wherein the trial judge found the

statutory insurer liable in damages

to the plaintiff,

such damages being assessed in the

sum of $110,872.62.

The respondent (the plaintiff in those proceedings)

alleged he suffered injury whilst traveiling in

- 2 -

vehicle driven by one Alfred William Brodie,

- -.

vehicle which struck

a tree on the

R.A.A.F. base at

Tindal, near Katherine in the Northern Territory in

the early hours

of the morning of the

22 January

1972. It was cormnon ground that the plaintiff and

Brodie were the only occupants of the car which came

into collision with the tree,

a collision which

. <

#caused

the death of Brodie. The vehicle

was not

;insured at the time, as required

by s.47 of the Motor

Vehicles Ordinance 1971 (N.T.)

and the Nominal

I t

Defendant was sued as

a tatutory defendant pursuant

; . to s.82 contained in the compulsory insurance scheme set"out in Part

V of that Ordinance. In

its original

defence the appellant denied that Brodie was the

driver of the vehicle at the time of the collision and

this remains the substantial issue. Other alternative

defences were raised including

a denial in the

circumstances of

a duty of care.

a plea that the

respondent voluntarily accepted the risk whereby

suffered injury. The appellant also pleaded that the

respondent "aided, abetted, counselled

or procured"

the commission of an offence when the collision

occurred, within the meaning of Smith

v Jerkins (1969)

119 C.L.R.

397 and Godbolt

v Fittock (1964) N.S.W.R.

22, the evidence indicating that the vehicle in

question was being used without the consent of the

owner. The appellant also pleaded contributory

- 3 -

negligence, the particulars in support referring control at the time and that the respondent was

to the respondent's knowledge that the driver

a co-adventurer in the escapade. These alternative

defences were either abandoned or dismissed by his Honour and the substantial matter, which the trial judge termed "the difficult issue' was as to whether

the respondent proved

he was the passenger in the

vehicle at the time he suffered injury. His Honour

found "on the balance of probabilities that the

deceased Brodie was driving at the relevant time,

that the plaintiff's injuries were the result

Brodie's negligent driving". It is basically in

respect of this finding that the deceased was

driving that this appeal has been argued. The

respondent has cross appealed against the trial

judge's assessment of damages on the ground that it

' was unreasonably low. There is no dispute that the

driver of the vehicle (whoever he was) was negligent,

nor is there any doubt both men sustained injuries

in the accident. The appellant complains that the

learned trial judge's finding that the respondent

was the passenger is not supported by the evidence,

that the inferences he drew were not supported by

facts and that his Honour's finding was and could

be no more than conjecture.

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There can

I think be no suggestion that his

Honour misdirected himself on the law.

He referred

to the speech of Lord Wright in Casewell

v Powel

Duffryn Associated Collieries Ltd.

1940 A.C. 152 at

p.169 which so clearly and concisely stresses that

there must be

a foundation of objective facts before

an inference can

be reached and that without such

"positive proved facts" one remains in the realm

speculation or conjecture. His Honour

also referred

in some detail to the decisions of the New South

Wales Court of Appeal in Swalwell

v Government Insurance

of New South Wales (1965)

N.S.W.R. 515 where the

majority of that court found on the particular facts

that neither the ownership of the car, nor the

position of the owner's body in the car after the

accident were sufficient in themselves as "positive

proven facts" to justify an inference and finding that

the owner was

in fact the driver.

In the present case his Honour examined some

matters (which were relevant factors considered in Swalurell.'~ Case (supra)) such as the lack of evidence of the respondent's previous driving experience, the

fact that the men's prior movements "were unaccounted

for over a period of about 3 hours", the fact that

there was no evidence that the respondent knew his

companion Brodie was illegally using the panel van and

the fact that there was no evidence to suggest any

- 5 -

change of driver. Clearly his Honour accepted the

fact that the deceased Brodie had taken the car

without authority

of the owner and

he accepted the

respondent's evidence that his last memory of events

that night was at the stage he was being driven as

a passenger in the vehicle shortly after

1 a.m. - over

3 hours before the collision and shortly after

he had

entered the vehicle at Brodie's invitation. But his

Honour found that these "aspects of the evidence (or

lack of it)" gave rise "merely to speculation

conjecture and no inference can be drqwn". And

it was that his Honour proceeded to examine "what

was observed at the scene" and

on the basis of

his

findings as to the position

of the car, its occupants,

damage and tyre marks

he found himself able to express

his finding in confident terms. "In my opinion, that

Brodie was driving at the time of and immediately

before the impact is

a conclusion to be drawn by

inference on the balance

of probabilities on objective

facts which are well and undeniably established". And

it is apparent that his Honour reached this finding by

conclusions he drew as to the movements

f the car

after the initial impact (which are not perhaps in

great dispute), but of more importance by aid of his

conclusions as to what occurred to the occupants in

this process: conclusions reached without the aid of

any scientific evidence and conclusions which were in

my view really

a matter of opinion and of the most

doubtful validity bearing in mind the tremendous

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forces involved, the alteration of the directions

of force, the evidence of damage to the vehicle, the

lack of evidence

of internal damage and the fact

that the occupants were not apparently secured

seat belts. It is in this process that the

appellant argues the trial judge has erred, that

proof has been displaced by conjecture.

The principles to be applied by courts appeal when the primary judge's findings of fact are

I	being challenged have been enunciated in different terms. Differing situations are encountered: Should

negligence be inferred from the facts as found? Does

the evidence support the trial judge's factual findings?

Is an inference justified by the facts proved or, as

is here the case, did the evidence justify the trial

judge in finding facts by

a process of inference?

Here as

I see it, the question is not merely whether

in our view the trial judge drew the right inference.	I .
If that was the situation we should not interfere.
i

"The question is not whether the appellate

court can substitute its view

of the facts

which, of course, it is empowered to do: but

whether it should do

so.

In any appeal

against a finding of fact, whether or not

by way of rehearing, however much the appellate

court may be

in an equal position

the

with

trial judge as to the drawing

of inferences,

in my opinion, the appellate court ought not	I
1
to reverse the finding of fact unless it is
convinced that it is wrong. If that finding
is c view reasonably open on the evidence, it	I
is not enough in my opinion to warrant its reversal, that the appellate court would not have been prepared on that evidence to make	!
the same finding,. Merely differing views do

-----

- 7 -

not establish that either view is wrong.-

Barwick C.J. in Edwards	v Noble (1971) 125 C.L.R.	296
at 304.

In the present situation the nub of the matter

is whether upon the evidence before him the trial judge

was justified in drawing the relevant inferences at

all.	If he was then this court should be slow to

interfere.

'Yet the interest

of the comunity is best

served by bringing litigation speedily to

finality. That can be confidently asserted

without invoking the conventional Latin tag.

It provides a justification for the firm

maintenance of what

I take to,be the rule of

law, namely that

a decision of a trial judge

on a question of fact and his opinion as to

whether conduct was blameworthy are not to

be set aside unless they are convincingly

I	shewn to be wrong. And one man's opinion about blame is not shewn to be wrong simply because it is not shared by other men."

per Windeyer

J. in Edwards v Noble (supra) at 315

But of course this court must, especially

.	where questions of credibility have had little influence

on the trial judge's findings, examine the evidence and

, *

such findings to ensure that the conclusion is in fact

an inference rather than

guess, a theory or conjecture.

In Luxton v Vines (1952) 85 C.L.R.

352 the majority

the High Court cited

a then recent decision

f that

court in Bradshaw v McEwans Pty. Ltd. (1951) Unreported,

a case referred to in several other authorities. The

court there said in dealing with the civil standard

of proof :-

I	I
i
I
I

' .

- a -

*In questions

of this

sort, 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

degrees of probability so that the choice

between them is a mere matter of conjecture... But if circumstances are proved in which it

is reasonable to find

a balance of

probabilities in favour of the conclusion

sought then, though the conclusion may

fall short of certainty: it is not to be

regarded as

a mere conjecture

or surmise..."

I	The majority in Luxton v Vines (supra) posed
. .

many-questions and competing hypotheses. There the

plahtiff had to rely

on inferential processes to

establish both the circumstance and cause

of his

injury and negligence itself. They concluded

"Any answer that

you give to such questions

is a guess. All lies in conjecture. The

fact is that whatever reasons you can find for one explanation of the accident, reasons of equal sufficiency or insufficiency exist

for other explanations. The circumstances

give rise to nothing but conflicting

conjectures of equal degrees of probability

and no affirmative inference of fault on the

part of	a driver of	a motor car can reasonably
be made.

See also the speech

of Lord Halsbury

L.C. in Wakelin v

London and South Western Railway Co.	(1887) 12 App. Cas.
41 at p.44.

"My Lords, it is incumbent upon the plaintiff in this case to establish by proof that her

- 9 -

husband's death has been caused by some

negligence of the defendants, some

negligent act, or some negligent omission,

to which

the injury complained of in this

case, the death of

the husband,

attributable. That is the fact to be

proved,

If that fact is not proved the

plaintiff fails, and if in the absence

of direct proof the circumstsnces which

are established are

equally consistent

with the allegation

of the plaintiff as

with the denial

of the defendants, the

plaintiff fails, for the very simple

reason that the plaintiff is bound to

establish the affirmative of the

proposition: 'Ei qui affinnat non ei qui

negat incumbit probatio.' 1 am not

certain that it will not

be found that

the question of onus of proof and

of .

what onus of proof the plaintiff undertook,

with which the Court of Appeal has dealt

so much at large, is not rather

a question

of subtlety of language than

a question of

law. "

So here if the circumstantial evidence upon

1 which the learned trial judge has reached his

conclusions is equally consistent with

a finding that

the respondent

was the driver and not the passenger,

' then the finding cannot be supported.

As Lord Halsbury

stated in Wakelin's Case (supra)

"One may surmise, and it is but surmise and

not evidence, that the unfortunate man was

knocked down by

a passing train while on

the level crossing: but assuming in the

plaintiff's favour that fact to be established,

is there anything to shew that the train ran

over the man rather than that the man ran

aqainst the train?"

Lord Shaw succinctly distinguished inference and

conjecture in

v Ayr Steam Shippinq Company Limited

1915 A.C.

217 at

p-233 -

- 10 -

"I am responsible, I observe, in some of

these decisions for

raising a distinction

between an inference and

a conjecture.

The distinction

is as broad

as philosophy

itself.

It is that an inference rests

upon premises

of fact and

a conjecture

does not. NOW when you come to

he region

of inference, my Lords, no one has ever

suggested that the inference should be in

syllogistic form

so that all the points

its premises hall with

apt and exact

completeness justify the

conclusion reached.u

In Gurnett v Macquarie Stevedorinq Co.Pty.Ltd.

( 1 9 5 5 ) 72 W.M.

(N.S.W.)

260 at p.264 Street C.J.

cited

Loreburn L.C.	in Barnabas v Bersham Colliery	Co. (1910)
103 LT.5B -

"In cases under this Act

.-.

the plaintiff

must prove h i s case; and although he may establish a state of facts which leads one

to think that his version

is quite a

possible version of what took place,

must do something more than show

a state of

facts which is consistent with one view or

with another view."

Street C.J. went on to add

"A guess is a mere opinion

or judgment

formed at

random and based

on slight or

uncertain grounds. In contradistinction

to such

a conjectural opinion, an inference.

is a reasonable conclusion dravm as

a matter

of strict logical

deduction fron knovm or

assumed facts. It

must be something which

follovrs from given premises

a certainly ox

probably true, and the mere possibility of

truth is not sufficient to justify an

inference to that effect."

- 11 -

. The principles governing the approach of

this court upon appeal. where the question is

essentially one of fact, or relates

to inferences drawn

from facts, have been stated in many authorities. The

broad and liberal powers on appeal suggested by the

House of Lords in Benmax

v Austin Motor

Co. Ltd. (1955)

A.C. 370 received a cautious reaction in this country. See for example the judgment of Windeyer

J. in Da Costa

' v Cockburn Salvaqe and Tradinq Pty. Ltd.

(1970) 124

:C.L;R.

192 at p. 209 et sq. In V?%itelev LIuir and

. Swanenbera Ltd. v Kerr and Another.

39 A.L.J.R.

505 at

p.,506 Barwick C.J. summarised the position

uNo doubt where the conclusion of the trial

judge is not based upon

or in any respect

influenced by his opinion

of witnesses orally

examined before him, the appellate court

in an equal position with the trial judge as

to what inferences can be drawn from the facts

as proved before him. But this

does not mean

that the appellate court should

treat the

appeal as a hearing de novo. The trial judge,

although not depending in any respect on the

credibility of any witness, may have preferred

one possible view of the primary facts to

another as

being in his opinion

the more

probable. Such a finding may,

in my opinion,

.	be disturbed by an appellate court but this

l	should only be done if other probabilities
so outweigh that chosen by the primary judge

. that it can be said that

his conclusion was

wrong. Again, the trial judge, having found

the primary facts, may decide that

particular inference should be drawn from

them. Here no doubt the appellate court has

more room for setting aside that conclusion.

But, even in that case, the fact

of the trial

judge's decision must be

~splaced. It is not

enough that the appellate court would itself,

if trying the matter initially, have drawn

, different inference. It must be shown that

- 12 -

the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or

too little weight in deciding the

inference to be dravm: or the available

inference in the opposite

s nse to that

chosen by

the trial judge

is so

preponderant in the opinion

of the

appellate court that the trial judge's

decision is wrong."

The same approach must apply where the real

issue is whether

o not the evidence was such as to

enable the learned trial judge

to r ach any inference

at all as to who was the driver. The present

situation falls into the category mentioned by

Windeyer J. in Da Costa's Case (supra) at

p. 212 -

"1 am sceptical of applying to

a finding

of negligence the principle that an

appeal court is as competent to determine

the proper inference from proved facts

is the trial judge. There is,

of course,

no difficulty in this proposition when

the inference of fact is itself of

physical fact or happening, something which could itself have been observed or other- wise perceived, to use Professor Goodhart's word, by the senses of a person actually

present at the relevant time. Thus an

appeal court can legitimately infer €rom

circumstantial facts that adultery was

committed: . .* And marks on the road,	the position where vehicles came to rest
and so on, may enable members	of an appeal
court to determine, just	as well as anyone

else could, on which side

of the road

motor car accident occurred and other

facts of that kind. That is simply to infer

an observable fact from observed facts."

This is not

a case where

we are asked to

evaluate or appraise the quality

of one's conduct

- 13 -

f o r t h e purpose

determining whether

or not

negligence is established.

T h i s cour t is, i n

f a c t , i n a s good a posit ion as was t h e t r i a l 'judge i n determining f ac t s from the evidence,

the c r i t i ca l sec t ions o f

which

were

circum-

s tan t ia l .

H i s Honour

was

required

t o decide

the issues without the evidence

o€ eye

v witnesses, with very

limited evidence from

: investigating officers, without the help

. .

expert

evidence. Largely

appears he relied

on'a sketch plan

which was not to

sc+e

and upon

photographs

the

car

clear ly taken af ter the

accident but

a t a t i n e and under circumstances

not otherwise revealed

the evidence.

witness who attended the scene

immediately a f t e r

the accident

and who

gave evidence a s t o h i s

observations one Corporal J.D. Krebs, was

apparently regarded

as unreliable by h i s Honour,

a t l e a s t a s t o the posit ion

the respondent

when

he f i r s t saw

him.

It i s thus necessary

t o examine

the evidence which was before the learned

trial

judge,

and his f indings in

a little deta i l .

The only evidence

a s t o the circumstances

under which t h e respondent and Brodie joined each

other was

given by

t he p l a in t i f f ,

whose memory

events does not extend

much beyond t h a t incident.

- 14 -

This, his Honour accepted, and he recited in his

judgment the respondent's version of that event. entered the.vehicle then driven by Brodie shortly

after 1 a.m.

in the morning

of the accident. He

found the only alcoholic liquor the respondent

had consumed during the preceding

12 hours was

2 beers and

he found that

he met Brodic after

finishing a 14 hour period as

a cook at

a local

restaurant.

He found Brodie had taken the vehicle

from a wrecking yard shortly beforehand and without

permission. He also found that the evidence did

acquainenmhip between the two men was "casual'

only. Chronologically the next findings are that

not support

a finding other than that the

the men "appeared at

about 3.45 a.m. in the

R?&?

Airmen's Club", were refused

a h e r and left the

base in

a vehicle followed by the witness Corporal

Krebs a member of the

RAAF.

Krebs did not see the

men enter the panel van upon the final journey which

clearly led up to the collision.

In cross-

examination Krebs, called by the respondent's counsel,

was asked whether the men appeared intoxicated when

he saw them at the Mess.

He said "yes" and agreed

with the proposition that "they appeared to be

intoxicated to

a fairly substantial degree". this

opinion being based on "their general appearance: the

manner in which they talked and the manner in which

I .

they acted". His Honour, who had to deal with the

issue of sobriety in view of the defence

of acceptance

---

--______ .. .

- . - -

_ _ _ _

-____

- 1 5 -

of risk and joint enterprise raised in the defence,

did not

make any findings as to intoxication upon

Krebs' evidence stressing that this witness had not

.specified "any particular manifestation

of any of

these general propositions". He merely found (and

he was dealing with the alternative defences based

on the proposition that Brodie was manifestly under

, the influence of liquor) that Brodie "showed signs

,of	having had some drink'' but the evidence failed

t o establish Brodie was

'o intoxicated as to be

1 1

unable properly to drive

a car". No challenge can

be made to these findings. The evidence

as to the

respondent's own consumption of alcohol. between the

time he entered the vehicle and suffered injury was

more substantial. It was agreed that

blood sample

of the respondent's blood taken shortly after

ahission to hospital at about

5.15 a.m. on the same

morning "showed

a reading of 0.17 grams of alcohol

for each 100 millilitres of blood." It was further

agreed that this would be the evidence "from the

government analyst

..-

if he were called" and it

laid the foundation for the evidence

of th witness

Cameron, classified

by the learned trial judge

"undoubtedly an expert on the toxic effects of alcohol". specific findings as to the respondent's probable

condition.

As I read his reasons he accepted

Cameron's evidence and his opinions (based on commencement of consumption of alcohol sometime after

- 16 -

1 a.m, and the findings upon analysis of the blood extracted at 5.15 a n . ) that at that stage

11 drinks, each the equivalent

of 10 ounces of

beer or one ounce of spirits would have then

remained in the respondent's system to return the

reading of 0.17.

Dr Cmeron was asked by the

appellantss counsel on the assumption that at

5.15 a.m.

there was a reading of 0.17%.

to what the position would have been at

4.15 a.m.,

the approximate time

of the accident. Having

stressed there were variable factors to be considered but that he was "capable o'f forming an opinion as to the range in which it would have

fallen" he said he

would expect it "to fall within

the range of

-140 to .190". This assumed commence-

ment of consumption o€ alcohol at

1 a.m.

and

cessation at 3.15

a.m..

On the assumption

consumption ceased at

2-15 that morning the doctor

said he would expect the concentration to be "not

less than .l70 at 4.15".

He also agreed that

Krebs general observations between

3.45 a.m.

and

4. a.m, were consistent with the respondent having

a blood alcohol level of

0.17 at 5.15 a.m.

The

following evidence thcn ensued.

"You would expect him to	be in a state of
intoxication?

MR. CRIPPS: I object to that.

HIS HONOUR:

I cannot see how

a doctor could

even answer that.

: ,

- -

--I---.-.

... . .

_ _

. -.-,

. ?

, . b

- 17 -

MR. BARKER: Well, we

lino?? that alcohol

impairs human judgment and human activity

is that right?

--- Yes. Is it possible

to say from your experience generally at

- 3

what level

of absorption of alcohol the

impairment comenees?

MR. CRIPPS:	I object to that, Your Honour.
HIS HONOUR:	I suppose, Mr.

Barker, it

depends on the individual.

f l R e

BARKER: Yes.

HIS HOXOUR: It would depend on the doctorls knowledge of the individual.

MR.	BARKER: Well, it does vary from

individual to individual, does it?---Yes, it

l	does, very much,

,' I

!	HIS HONOUR: Considerably, does it not?---Yes."

It appears that the first question was either not

pressed or was regarded as disallowed, although,

with respect, in view of the fact that the doctorls

expertise appeared well established and in view of

his answer to the respondent:'s counsel that he

"was

taking into account the variables in expressing the range" I would have thought that his opinion as to whether the respondent would have been intoxicated at relevant times would have been admissible: the

weight of such evidence was

of course for his Honour

to determine. Be that as it may the learned trial judge having dealt with the matter and having emphasised the variables made no finding as to whether

or not the respondent was proved to have been

intoxicated.

As to the deceased Brodie his finding.

which must be accepted was that "it has not been

- 18 -

eatablighed on the balance of probabilities that

when he left the mess

h (Brodie) was

so intoxicated

as to be unable to properly drive

a car". The trial

judge was then examining the defences of acceptance

of risk and contributory negligence and

€or the

purposes of this appeal the question

of the men's

sobriety or otherwise does not

loom large save that

his Honour's findings as to the course of the car

up to impact and the other circumstantial evidence

are consistent with the driving of

a man whose

faculties and judgment were impaired. Whatever

inferences are open from the circumsthntial evidence

there can be no dispute that it was an unusual

occurrence and that the car was being driven

on a

dangerous course at

fast speed in

a wholly

inappropriate area

- a bay of the airfield.

The learned trial judge's findings as to

. the tyre marks, the point

f collision between the

panel van and the tree, the wheel marks after the

collision, the position of the vehicle at rest and

the position

of the deceased's body

- clearly

ejected from the car after impact, are set out in

his judgment in the following terms and are not

really the subject

of dispute.

"For some reasor. or other it turned left

off the road into an aircraft bay which

had a bitumen surface with loose metal.

I .

- 19 -

. Observations made

the pol ice show

t h a t the t ree with which

the panel

van

coll ided was on the f a r side of the

a i r c r a f t bay

from which

the panel

van

had entered and that leading

t o the

tree

w e r e

c lear ly discernible tyre

marks made .by the f ront and rear

wheels

the vehicle.

These

tyre

marks were t o be seen over

a distance

of more than 220 f e e t and went i n an

arc t o t h e l e f t .

For most of

t he

distance of the marks those made by

the f ront

wheels

w e r e t o t he l e f t of

those made by

the rear , but

a t a point

abou t 54 f ee t from the tree the marks

intersected and from then on those

made

the rear

wheels were

t o t h e

l e f t and those of

the f ron t t o

the

r igh t until

they reached

the tree

where,

a f t e r an almost head on

coll ision with

the tree by the near-

s ide front

the vehicle, the rear

wheels were seen t o go to the l e f t of

t he tree, which was about 17 f e e t

outside the a i r c r a f t bay, and

then

proceed i n a narrow sharp turn in

clockwise direction to

where the

vehicle was

found w i t h its f ront

facing towards

t h e f a r s i d e

the

bay from the vehicle's

entry.

From

the point of impact with

the tree t o

the most d i s tan t par t of the vehicle when it was found was merely 15 feet.

A f t e r the col l is ion with

the

tree,

which did not involve

any overturning

of the vehicle, the body of the

deceased Brodie was found outside

the vehicle towards its rear on the

off or dr iver ' s

side."

. His Honour clearly accepted the evidence

of Constable Duncan as to observations

a t the scene

and

re l ied upon

t h i s officer's sketch plan (Exhibit

G), a plan not

drawn to scale,

H i s Honour no doubt

derived some assistance from E x h i b i t H,

a photo

showing the posit ion

o€ the car , the

tree with which

- 20 -

it co1,lided and portion of the wheel marks mentioned.

It is important to note that this photograph, not

proved to have been taken by the witness Duncan, was

the only photo showing the car at the accident scene,

'the oiher photographic exhibits were obviously taken

elsewhere. Exhibit

B illustrated the "condition", not

the position, of the car as Duncan saw it. His Honour had no evidence as to when the photographs were taken

' or as to what interference (if any) there had been

I with the vehicle8s doors or either of them

by the time

I thq bhotographs were taken. In particular and it is

importance in view

of his Honour's subsequent findings

I there is no evidence at all as to whether the driver

side door was open or shut when Krebs arrived at the

scene of the tragedy

so soon after it had occurred.

It appears from his Honourls judgment that

he viewed with reservation the witness Krebs' evidence

concerning the position

f the respondent in the

vehicle after the accident, Krebs was called on behalf

of the respondent to establish this. It was common

ground that the respondent, then unconscious was still in the vehicle, or partly in it when Krebs arrived:

it was common ground that he and his companion Cubillo

removed the respondent from the vehicle and laid him

on the ground near the passenger's side open door.

It was common ground that when Krebs reached the

vehicle the passenger's side door was open.. Confusion

arose as to the respondentss position as he lay in the

- -

- -_

---

- 21 -

vehicle at that time, At trial his evidence was

that the respondent was "lying on the front seat

... his head and shoulders were on the right hand

side of the vehicle". He was asked by his counsel

(without objection) to refer to

t w o statements he

made to the police years before on the 22 January

and 23 January

1972 respectively, statements he had

signed, statements given when the facts were clearly

fresh in his memory.

At that time

he had given

different account as to the plaintiff's position.

Having been referred by the respondent's counsel to

the statements or one

of them, he maintained his

evidence that the "main part

of he respondentas

body was on the right hand side

of the vehicle".

This contradicted the signed statement made on

January 1972 set out in his Honour's judgment

"I arrived at the scene

I saw a male

European person lying partly out of the vehicle on the passenger side. His feet

and legs were in	the vehicle and the top
part of his body	was outside of the

vehicle and on his back with his arm

outstretched behind him. His head

was

not touching the ground. nor	a y other
part of his body."

In the earlier statement

on 22 January 1972,

stated the plaintiff "was half in, and half out

the car", Later the respondent's counsel sought

leave to tender the two statements pursuant to sO2GD(1)

of the Evidence Ordinance which provides as fol.lovrs

- 22 -

"26D.(1) In any

civil proceedings where

direct oral

evidence of a fact would

admissible, a statwnent made by

a person in

a document and tending to establish that

fact shall, on production

of the original

document, be

admissible as evidence of the

fact if the following conditions are

satisfied, that is to

say -

(a) if the maker

of the statement either

I	(i) had personal knowledge of the

matters dealt with by the

l	statement; or

(ii) where the document in question

is or

forms part of a record

purporting to be

a continuous

record, made the statement (in

so far as the matters dealt

with thereby are not within

his personal Knowledge) in the

perfonnance of

a duty to record

inEormation supplied to him by

a person who had, or might

reasonably be supposed to have,

personal knowledge

of those

.	matters; and

(b) if the maker

of the statement is

called as a witness in

the proceedings,

but the

condition that

the maker

the statement shall be called

as a

witness need not be satisfied if he

is dead, or unfit by reason

of his

.	bodily or mental condition to attend

as a witness, or it is not reasonably

practicable to secure his attendance,

or if

all reasonable efforts to find

him have been made without success."

The appellant's counsel did not object, the statements

were tendered and they thus became admissible

evidence of the facts the witness therein deposed to.

Clearly the respondent's counsel assumed the trial

judge would accept the original written statement:: as

I	'
I
I

I 9 .	.. 23 -
I

evidence in preference to the rather confused

evidence of the witness five years later at trial

especially as the transcript does not suggest there

was a real contest as to the accuracy of that written

statement. But in his reasons his Honour termed the

original statement as "contradictory" and one which

cast "doubt on the account he gave at the trial and

not much if any, reliance can be placed on that

. I account". There is in fact no finding as to the

position in uhich the respondent was lying in the

' car'. I Clearly his Honour did not accept Krebs' account

at 'trial but whether he accepted the Ariginal account

is no'c clear, Y ' i Coombs submitted his Honour was in

error in not finding, on the basis of the second

written statement, that the respondent was lying

with his head and trunk out9$he near side door, the

requirements of

s.26D(1) of the Ordinance having been

complied with and the application to admit the

. documents not being objected to. The weight to be

I .

placed upon the documentary evidence was

a matter

for the trial judge but

he appears to have ignored

it.: Having perused the statements it seems to me that they should have been given weight. The fact that his Honour may not have regarded the man he saw

five years later as

a reliable witness; could hardly

go to the issue of accuracy years previously when

a member of the R.A.A.F.

and in the course of his duty

he attended the scene and made entirely factual reportso

one, the same day, the other

a little more expansive

the following day. Clearly he was not

a "person

interested" within the meaning

of s.26D(3).

This

evidence was tendered in an unusual situation, Krebs

was not a witness claiming no knowledge

of vents

through effluxion of time, nor did

he show any

enthusiasm to refresh his memory. After referring

to the statements his oral evidence remained

unsatisfactory. In Harvey v Smith Wood 1963 2 All E.R.

127 at p.129 Lawton J. in dealing with equivalent

legislation observed

"I have come to the conclusion, with some

regret, that on the proper construction

s.l(l) of the Act

of 1938. the document

which counsel for the plainkiff seeks to

have admitted in evidence can be

so admitted.

I say that I have come to

that conclusion

with some regret because

it seems to me that

it is an unfortunate situation if counsel can

call a witness and, when that witness does not come up to proof, counsel should be allowed to produce-some earlier document

which shows that on some

other occasion the

witness made

a different statement. I

appreciate - and I have hrne it in min5 in

coming to my decision as

to the proper

construction of the Act

- that the object

.	of the Act is to see that the relevant evidence

is before the court.: and it may well be in the sort of situation which has arisen in this case, it is right. in case one side or the

other seeks to rely on evidence given by a ' particular witness, that the court should have f u l l information as to vhat the witness

has said on some previous occasion. Never-

theless, it seems to

me that the use

of this

provision should be one which counsel should

hesitate to adopt except in very special

circumstances

- 25 -

In the present case, as

he clearly considered

it of importance,the respondent's counsel rightly made

the application and the evidence was properly admitted.

The lapse of time could not be ignored. There were

special circumstances

for the evidence

to be introduced

under the section. The point

Mr Coombs makes is that

the trial judge wrongly did not utilise it. He

says

in effect its acceptance by the trial judge would have

increased the factual foundation for the findings he

, made and would have supported his ultimate conclusion

that! the respondent was the passenger,

a fact Mr

Cobmbs argued we should now heed. It'does appear to

' me that his Honour approached the matter, not on the

basis that the statements were admitted by consent

upon the application of counsel calling the witness,

but as though they had been admitted

or introduced in

cross examination as contradictory statements. This

may have been due to Krebse unusual approach to the

situation, His Honour's observation that "the second

statement" was "not proof of the facts alleged in it"

was literally correct but the statement was neverthe-

less admissible in support

of a fact in issue. His

Honour's reasons suggest he did not appreciate the evidentiary weight which should be accorded to the statements, Assuming his Honour was in error here

and as I consider in any event his finding that the respondent was the passenger must be set aside, in

considering the matter in its totality,

I have assumed

that the respondent when found by Krebs was hanging

- 26 -

€rom

the

vehicle as descr ibed in his s ta tement to

the police.

B e tha t as

it may

i n my

view t h i s

cannot

a s s i s t t h e

respondent.

The

c r i t i ca l s ec t ion

h i s Honour's

reasons

which are challenged are t o be found	in the following
passage -

"However, i n the present case

I f ind tha t I

am unable t o draw an inference from what was

observed a t the scene, which distinguishes

it from Swalwellcs

case.

It is obvious thet

when

the vehlcle turned into the aircraft

bay

it was

travelling crabwise with

i ts rear ty re

marks

t o t he r i gh t

and

its f ront ones

t o t h e

Left:.

A t about 54 f e e t from the tree it turned

i n an anti-clockwise direction for almost

complete c i r c l e and then continued

on,

its

f ront ty re

marks

to t he r i gh t

and

i ts rear

t o t h e l e f t ,

wi th the resu l t tha t the

near-

side f ront of

the vehicle h i t the t ree .

The

centriEugal force thus generated resulted

i n

thhe vehicle then turning

and proceeding back-

wards

i n a

clockwise direction for approximately

180 degrees t o where it was found, its f ront

then

diagonally

facing

the

bay. This means

tha t for the

whole

the time

from s t r ik ing

t h e t r e e u n t i l the vehicle came

to rest

its

of€ or driving side was on the outside arid

the near or passenger's

side was on

the

inside of

the ha l f c i rc le

thhe

vehicle travelled.

The result , almost

inevitably,

would be tha t

anyone ejected from the vehicle would be from

the dr iving seat

and

to the ou ts ide

the

vehic leas movement.

The

only person ejected

was

Brodie,

he was

e jec ted to the ou ts ide

the vehicle and, despite some suggestion by

MrBarker t o the contrary, I f ind tha t the

driving side door was open when f i r s t seen

after the co l l i s ion ,

as would be expected

i n

consequence of

the vehicle's movement.

I n my

opinion, that Brodie

was

driving a t t h e time

of and immediately before the impact is a

conclusion 'CO be drawn by

inference on the

balance of

probabi l i t ies on objective facts

which a re well

and undeniably established,

- 27 -

~ r ,

Barker would (and did) argue that this

*	conclusion is inconsistent with the injuries sustained by the two men. The plaintiff suffered a severe head injury, one or more

- 8

broken ribs on the left side, a haemothorax,

a ruptured. spleen and abrasions on the chest.

s	The deceased Brodie had lacerations on the
i	left eyebrow, a laceration on the left temple,
,'	bone deep and about three inches in length, a small laceration over the frontal region on the left side, and abrasions over the left

foot. From these injuries Mr. Barker asks

me to draw the conclusion that the one

most

likely to have come into contact with the

;	steering wheel was the plaintiff. This I
.	regard as conjecture or speculation. The plaintiff's injuries were equally consistent

\	with his having been thrown by the impact
. '.	against the dashboard or the opened glove-
l	box of the vehicle on the passenger's side,

,a I

and it is notorious that

by bracing himself

with his

arms against the steering wheel

1 . driver can give himself some'protection by

so doing. However that may be, the deceased

.	Brodie's severe head injury was on the left

. I

side and was at least consistent with his

head having struck an internal rear-vision

mirror, It is more probable than not, in

opinion, that the plaintiff's injuries were

sustained when the vehicle struck the tree,

the passenger's side

of the vehicle bearing

the brunt of the collision, and the vehicle

travelling backwards thereafter."

This passage in my view contains one or two

fundamental errors and a. finding in respect of which I can find no support in the evidence, Those things

aside it seems

to me his Honour has formed

a theory

of events and their sequence

- perhaps as good as any

other theory. But I consider, with respect, that his

finding that the deceased was the driver cannot be

supported by the evidence.

I cannot agree with the respondent's counsel that his Honour in reaching his essential finding was

. l

- 28 -

using 'only the ordinary knowledge

of m n or that the

evidence supported

a finding that it was more likely

than not that the person in the driver's seat would

be throm out.

The driving of motor vehicles occupies much

of the time

of both civil and criminal courts. Generally

speaking it

is the task of judges or juries to assess

I I

I	the cause of	a collision for the purpose	f determining
I

questions of fault

or criminal liability. Not

infrequently the conflict lies in the issue as to

identity of the driver. Leaving aside statutory

presumption which

m y occasionally arise under specific

I I

legislation the identity of the driver may be

established by the evidence

of identifying witnesses,

by the drivelis admissions or by evidence

as to

I I	- observations made after an occurrence such as	a collision.
!

i	And there are undoubtedly many cases where the position

' of persons wedged in the wreckage, or indeed where the

nature of injuries themselves speak clearly as to the

probable position of occupants before

a mishap.

Everything must depend on the circumstances, the type

of collision, the nature of the forces brought into

play. And so it is that evidence of such established facts will often justify the inierence which leads to

the ultimate finding. But this was not such

a situation.

It appeared to

he common ground during the course of

argument that the vehicle

was not fitted with seat

belts. Clearly the impact with the tree was one of

- 29 -

great violence and the photographic exhibits warranted no other finding. Inevitably in this

case there was consequential, sudden and violent change in the course of the vehicle, accompanied

by severe damage to the vehicle internally and

externally, At what stage doors sprung open (if

indeed both sprung open), at what stage the

deceased was ejected are uncertain factors. The

men were unsecured occupants within the confines

of a vehicle unler the stress of great forces.

His fIOnourls conclusions were reached without the

aid of scientific expert evidence. The situation

b was'such that it would have been unlikely that an

expert, other than perhaps

a true scientist with

understanding of the dynamics

of energy and motion,

would have been permitted to offer an opinion as to

the identity

of the driver when the vehicle struck

the tsee, See

v _ ~ y a n (1960) 103

C.L.R.

486,

, m v Day (1949) 79 C.L.R.

442, Nickisson v -

R (1963)

W.A.R.

114 and Mattioli

v Parker (No.2) 1973 Qd.R 499.

The fact that expert evidence was not aamitted or

would not have been admitted, does not in itself mean

much nor of course does it mean that the court cannot on the same facts draw an inference, as it may be the

problem involved does not fall within

3 branch of

Icnoruledge o r art which lends itself to opinion

zvidence, But the above cases show clearly how

anxious the courts have been to ensure that the fact

finding responsibility involved in proof of

a civil

cause

not

eroded:

and

one

factor

of course

-v__

- -.

- ._

. . _ _ _ .

. - -.

- .

. - -

__ ._

- .

. - ..

yz-7

- 30 -

recognition of the scientific and physical

difficulties of reconstruction, especially where

high speeds are involved.

As Jackson S.P.J. stated

ixi Nickisson v

(supra) at

p.116 -

"I should think that many factors would

need to be considered, as for example, the respective weights of the vehicles, the speed of the vehicle which was moving,

the precise angle of impact, how much of

the force was exhausted in the physical

damage to both vehicles, the resistance

of the road surface and

so on. Indeed

it would not surprise

me if even

person skilled in applied mathematics

was unable to form any reliable conclusion."

I do not propose to deal

in great detail with

the trial judge's findings in the passage quoted above

but I make one or two observations.

He said "At about

54 feet from the tree it" (the vehicle) "turned in an

anti-clockwise direction for almost

a complete circle

and then continued on

I doubt bearing in mind

the presence of four tyre marks rather than two sets

as though the vehicle was travelling broadside that

the marks on the plan

(Ex. G ) indicate an alteration

in direction "for almost

a complete circle". It is

apparent that his Honour was mistaken in describing

the direction

of the change as "anti-clockwise". It

was agreed in argument that this was

a mistake, but

perhaps it matters little as the manoeuvre occurred

before the impacto His Honour after describing the

. -.

- 31 -

impact*and finding the vehicle travelled backwards

in a clockwise direction thereafter found that

"almost inevitably"

a person in the driver's seat

would in such circumstances be ejected by

centrifugal force and he found that the "only

person ejected" was Brodie. His Honour found, and

it was necessary

so to hold if the finding as to

Brodie's ejection from the driver's seat had

validity that the "driving side

door was open when

first seen after the collision, as would be expected

in consequence of the vehicle's movement".

I do not

wish to canvass these findings as I do not consider the evidence supports them,' It seems to me in reaching his conclusion his Honour may have overlooked

the pre-impact forces to which the occupants were

subjected and the violence

of the change. In my view

it was at least equally possible that the passenger by 'reason of these forces, by reason of the physical

damage, the thrust of the near side front assembly

to the passenger's area, was thrown through the

passenger's door as it sprung open being ajected at

an earlier stage than his Honour envisaged and when

maximum forces were operative. Upon his view Brodie

must have been ejected through the driver's side door

after much force had dissipated and shortly before the

vehicle came to rest. It was well proved that the

passenger's door was open as Krebs reached the scene.

There is no dispute as to that, yet his Honour's

specific finding that "the driving side door was open

when first seen" is not, with respect, supported by

-	- -________

- 32 -

t he evidence. Not one witness spoke a s t o this, and as h i s Honour so found I can only assume h i s finding was based on the photo exhibit "H" from

which upon close examination it appears as though

the d r iveras s ide door may

have been

open when

the photo was taken. This photo

was

tendered

through Constable Duncan, but there was no

evidence

as to' when it was taken or by whom it was taken.

, H e s ta ted it

showed the posit ion

the vehicle

8 .

when he reached the scene, but he

was

not asked

siniqle question as

to the condi t ion

the d r iverss

dobr

t ha t time,

H e sa id tha t

' ' qu i te obviously

the passenger door sprung

open" and it appears a s

though the emphasis was on t h i s door during the

trial,

With respect it seems t o m e t h a t h i s Honour's

f inding that the driving side

door was open when

first

seen

af te r the co l l i s ion has

evidence

t o

support it-

To make such a finding on the bas i s

of Exhibit "H" would be msafe ; as it overlooks the contingency, indeed i n my view the probabili ty, that

a person or persons had entered the vehicle

by the

d r ive ras door

opened

the

door

af ter the accident

and before the

photograph was taken, Furthermore

it seems t o me that in dismissing Mr

Barker's

submission that the respondent 's injuries

were more

consistent with he having

been the driver as being

no more

than "conjecture

or speculation", his Honour's

observations as to

a driver protecting himself

"bracing himself

with h i s arms against the steering

- .

- 33 -

R .

wheel..." not only appears to overlook the violence

of this collision but emphasises that the whole fact

finding exercise was of necessity clouded by many

unlcnown factors, One reaches the situation in

case such as this that one opinion

as to what

occur;ed is not likely to have more validity than another for the simple reason there are	so many
possibilities.

In the words

of Sir Arthur Conan Doyle "It

is a capital mistake to theorize before one has

data" (The Memoirs of Sherlock Holmes) The

photographic exhibits

"B"

c "C" , "D" and "E" serve

to illustrate the nature of the initial collision.

What was to be seen afterwards and the injuries

suffered by these men were not in my view evidence

sufficient to support

a finding as to who was the

driver,

In conclusion conclusion that whilst the deceased Brodie

I have considered

his

Honour's

was the

driver at the outset., and whilst there was no evidence to suggest a change oE driver he was unable

to reach any conclusion

from those facts. It is true

that there was no evidence

as to whether

or not the

plaintiff had' driven

a motor vehicle but in view of

the critical nature

of this issue,

as Yc Justice

Fisher observed during argument, it

is reasonable to

I . - 34 -

assune.that the plaintiff's counsel would have

called evidence that his client

was not a driver,

or not a licensed driver, if this in fact was the caseD In view of the fact that the deceased Brodie

I .

had illegally obtained the vehicle, in view of the

fact that the trial judge apparently accepted the

plaintiff's evidence that he was

a reluctant, a

tired passenger.

I have considered whether these

facts standing alone should have led to an inference

khat in any event the person driving the ear when

it struck the tree was the person

who first drove

it that morning, But clearly his Honour's approach

OR khis aspect was correct, Little was

known of the

men's movements that morning but the fact of illegal used the evidence as to the analysis of the respondent's blood, *the evidence that the "journey" had been

interrupted at least oncec prevented any inference

baing drawn that he who first drove retained control

until the time of the accident. These facts coupled

with the fact that the men after the lapse of over

three hours were not far from Katherine where the

journey commenced, did not assist such

a finding.

Upon the whole of the evidence only

a fragmentary

understanding of prior events could be reached and

there was no room for an inference

or presumption

thak the person driving the car at that stage and

time and on this unusual journey was the original

driver.

U-

0’

- 35 -

St is my view that the finding

of the

learned trial judge that the respondent

was a

passenger in the vehicle when he

was injured

cannot be supported

by the evidence. I consider

the judgment should

be set aside and judgment

entered for the nominal defendant.

In view

of my conclusion it would not be

appropriate to express my views as to the

cr ss

appeal concerning the assessment	of the respondentOS
general damages.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY

DISTRICT

REGISTRY)

NO. NTG 24 Of 1977

GENERAL

D I V I S I O N

On Appeal from the Supreme Court

the Northern Territory

of Australia

B E T W E E N :

THE NOMINAL DEFENDaTT

Appellant

and

. I. .

Respondent to the

Cross Appeal

. (Defendant)

- and -

1. 1

RICJX4RD JOHN OVENS

Respondent and Cross

I	Appellant (Plaintiff)

I	i
I

REASONS FOR JUDGMENT

ST.JOITN J.

I have had the advantage

of reading the reasons for judgment

of Muirhead J.

I agree with those reasons and the conclusions

based upon them. I would therefore uphold the appeal with

costs and order that judgment be entered for the defendant.

. .

I N THE	F DERAL	COURT O F AUSTRALIA	1
)

NORTHERN TERRITORY	DISTRICT	REGISTRY	)	No.	NTG	2 4 of	1977
)

GENJ3RAL

D I V I S I O N

ON APPEAL FROM THE SUPREME

COURT

THE KORTHERI? TERRITORY	OF	AUSTRALIA	I
BETWEEN:
THE I\TOMINAL DEFENDANT

A p p e l l a n t

a n d . R e s p o n d e n t

t o the Cross A p p e a l

( D e f e n d a n t )

RICIIARD

JOHN

OWENS

Respondent and C r o s s

A p p e l l a n t

(Plaintiff)

CORAM:

Muirhead, S t . John and Flsher JJ.

F I S H E R J.:

The learned t r i a l judge i n thls matter found t h a t

he w a s able t o d r a w the Inference,

f r o m w h a t

was observed a t the

scene of

the accident, t h a t the deceased B r o d l e was the drlver.

. H e made

this

f l n d i n g a f t e r concedlng that

any concluslon based

on other aspects of the evldence w a s merely speculatlon o r

conjecture and t h a t no s u c h Inference could be	drawn f r o m t h a t
evidence.

f lnd myse l f

unable to agree tha t the

evidence

of what

was

observed

a t t he scene

the

accldent s tandlng alone or taken

i n conjunct ion with other aspects

the evidence

w a s

s u f f i c i e n t

b a s l s upon

which

t o found

reasonable inference that Brodie

was

t he d r ive r

a t t h e tlme of

the accident. There

i s

unfortunately

very

considerable lack of sat lsfactory

evldence

t o f a c t s

from which reasonable inferences mlght be drawn, partlcularly

a s t o

what

effect the lmpact of the vehicle with the

tree

had

o r

would

be l l ke ly to have

upon

the occupants of the vehicle.

The

t r i a l y d g e

acknowledged

t h e d l s t l n c t i o n

between Inference

and conjecture b u t was

of the opinlon that

It was permlsslble

t o draw from the meagre

f ac t s

t he r e l evan t In fe rence .

However,

the -,new

t h a t t h e s e f a c t s

were

i n s u f f i c l e n t t o s u p p o r t

the necessary concluslon,

namely

tha t t he hypo thes i s t ha t

Brodie was

dr iv lng a t the re levant t lme

i s more

l l k e l y t o be

co r rec t t han the hypo thes l s t ha t t he p l a ln t l f f

was

dr ivlng.

The	s i g n i f i c a n t f a c t s u h i c h t h e t r i a l ~ u d g e f o u n d a s s u f f l c i e n t

to support the drawlng of the

lnference

may

be shor t ly s ta ted

follows:

A t t h e

t l m e t he veh ic l e en te red the a i r c ra f t

bay

was

travelling crab-wlse with

its r e a r t y r e

marks t o t h e r i g h t

and Its

f ron t

t y r e marks

t o t h e l e f t

Its precise

d l rec t ion of t rave l .

About 54 f e e t from the tree It turned i n an anti-clockwise

direction

for about

comple te c i rc le

and contlnued on. Thereafter

had

i t s f r o n t t y r e marks

t h e r l g h t

and

i t s r e a r

t y r e marks

t o t h e

l e f t of

i ts d l r e c t l o n of

t rave l wi th the

resul t

t h a t t h e n e a r s l d e

p a r t

t h e v e h i c l e h i t t h e t r e e .

I n

consequence of

the

centrifugal

force

generated

by the

acc

ident

the

vehic

tu rned

and

proceeded

backwards

I n a

c lockwlse dlrect ion

for about

h a l f c i r c l e t o t h e

, '

pos i t i on where

it came t o rest .

A t t h a t tlme

its f r o n t was

3 .

diagonally faclng the alrcraft bay.

In travelling this half

circle the drlver's side of the vehlcle

was on the outside and

the passenger's side on the inside

of the half circle. The result,

His Honour found, was almost inevitably that anyone elected would

be ejected from the driver's seat and to the outside of the vehlcle.

The only person elected

was Brodie and

HIS Honour found that

he was .

elected to the outside of the vehlcle.

The driver's door was

open when the vehlcle

was flrst seen after the

colhslon, which as

he said, would be expected in consequence of the movement of

the vehlcle. These were the oblectlve facts which

His Honour

found to be

"well and undenlably establlshed" and

on <he basls

of which

he drew the inference,

on the balance

of probabllities,

that Brodle was drivlng at the time

of the accldent.

In my view thrs 1 s a case in whlch it is permissible for an

appellate court

to dlsagree wlth the findings of the trial judge.

Moreover in my opinlon It can not be correct

to state that the

ohlective facts abovementioned were

"well and undeniably establishec

and there 1 s ?n my oplnlon lnsufflclent support for	the inference	, .
ultlmately drawn from these facts.

This in my vlcw 1 s a case whlch the authorltles establish

as approprlate for an appellate court to substltute

its flndlng

if It considers It necessary.

It is axiomatlc that it 1 s

incumbent upon the plalntiff

to offer affirmative proof and that

determinatlon of the matter depends upon the sufficiency of the

circumstantlal evidence to

discharge this burden imposed

on the

plalntiff.

The plalntlff must fail unless he offers evidence

supporting, on the balance of probablllties, the drawing of the

relevant posltlve Inference.

As an appellate court

we can more

easily intervene

as the declslon under appeal

1 s the declslon

Judge

s l t t i n g a l o n e

and not

the decls lon of

p r y .

Moreover,

i n t h e

end

r e s u l t t h e m a t t e r

I n

i s s u e

1s not

the

judge 's f lndlng

on pr imary facts (with

whhlch a s It happens I am not wholly happy

a s subsequen t ly appea r s ) , bu t an in fe rence sa id to

capable

of being

drawn from such

facts.

Llkewlse

the

matter

under

review

i s

i n no

way

dependent

upon

the c red lb i l i t y o f w i tnes ses .

A s

t o t h e i n f e r e n c e

which

t h e p l a i n t l f f

must

e s t ab l i sh a s suppor t ed

the evidence,

th ls lnferencc i s an

lnference of an observable

f a c t and nor; an inference (such as

an lnference of

negligence)

evoking an evaluatlon or an assessment of

person's eonduct.

these grounds

not lnappropr la te for

u s

a s a n a p p e l l a t e

cour t

t o

s u b s t i t u t e o u r i l n d l n g s i f

dlsagree with those of

t h e tr ial

Judge.

However,

f a c t o r t o

given proper welght

t h a t

necessa ry fo r t he appe l l a t e cour t t o d i sp l ace the

tr ial

Judge's

decislon.

The

f a c t t h a t

could not

ourselves

have

drawn

the r e l evan t i n fe rence

1 s n o t s u f f l c i e n t t o j u s t l f y

lntervent lon.

The quest ion 1s whether

there

fac tors

whlch

j u s t i f y t h e a p p e l l a t e c o u r t

111

s u b s t i t u t i n g

I ts

view

f o r t h a t

t h e t r i a l

judge.

Re tu rn ing to the ob lec t lve f ac t s

upon

which

t h e t r i a l

judge

r e l i e d a s e n t l t l l n g

hlm

t o draw

the re levant Inference ,

1 s

j u s t no t co r rec t t o s ay tha t t hese

were

a l l

"well

and undenlably

es tab l l shed ."

The t r i a l Judge

found

t h a t a t a dlstance of

about

* 54

f e e t from

t h e

tree

the vehlc le " turned in an

anti-clockwise

d l r ec t ion

fo r

a lmos t

a complete circle."

Such a maneouvre 1s not

on ly Inherent ly unl ike ly , bu t

i s

not supported

e i t h e r t h e

photograph of the tyre

marks

( c x h l b l t

or the p lan thereof

( e x h i b i t G ) .

Counsel

for bo th par t les conceded a t

the hear lng

t h a t t h e f i n d l n g

an antl-clockvilse turn

was

mistake, and

if t h i s be

a s conceded

it was

m c o r r e c t

a l so f o r t h e t r i a l

judge t o f i n d t h a t t h e t u r n

was

for

"almost a complete clrcle. I'

Much

l lk;?ly

the conclus lon tha t the vehic le tu rned in

c lockwise direct lon for about

qua r t e r

clrcle

and such concluslon

would be supported both

by the photograph and the p lan .

The

t r i a l

Judge then found that

the

consequence

the

cent r l fuga l force genera ted

by the lmpact

and the course

which

t h e v e h l c l e f o l l o w e d t h e r e a f t e r t o a r r i v e a t

i t s

p o s i t l o n

rest was t h a t anyone elected from the veh ic l e

must have been

e jec ted from t h e d r i v e r ' s

seat.

Thls

f lndlng

1 s based

a t

least two

assumptlons, nelther of

whlch do

f i n d as

l u s t i f l e d

by the evidence.

The first assumptlon i s t h a t such would of

necesslty have been the consequence of the forces

(be

they

centr i fugal or otherwise) generated

t h e

lrnpact

and

t h e second

tha t t he pe r son e l ec t ed

would

have been elected during the

v e h i c l e ' s movement

through the ha l f

c l rc le

r a t h e r t h a n a t o r

s h o r t l y a f t e r t h e

moment

impact.

I n respect of

the l a t t e r assumptlon there

is no p o s l t l v e

ev idence as to

when

through which door the deceased Brodle

was

e jec ted .

H l s pos l t l on

t h e ground

r e l a t l o n t o t h e

vehic le ,

namely

to the rear of the dr - lver ' s door ,

would

support

the cont ra ry conten t lon tha t

It was unl lkely he

would have been

ejected

through

that door

as the vehlc le

came t o rest.

Alternat-

ive ly th i s pos l t ion could suppor t

conten t ion tha t

was

a t l e a s t

e q u a l l y l i k e l y t h a t

would

have been

elected

other than through

t h a t

door

a t o r

shor t ly a f te r the impact wi th the

tree.

6 .

On the assumption concerning the

inevitable consequences of

cen t r i fuga l

force

t h e r e

1 1 0

evidence, expert or otherwlse,

t h e b a s i s

which

I n my

re spec t fu l vlew

t h e t r i a l ~ u d g e vas

e n t i t l e d t o make

such a

f lndlng.

Nor

can I be

s a t i s f l e d t h a t

such lnevltable consequences have

become

n o t o r l o u s a s t o p a s s

i n t o common

knowledge.

Moreover

t h e t r i a l p d g e

made

express

f i n d i n g t o t h l s e f f e c t .

A	fur ther c ruc ia l f lnd lng In a ld of the drawlng of the

relevant Inference

1 s t h a t t h e d r l v e r ' s d o o r

was

open-when

first

seen a f t e r

t he

collision.

The t r i a l ~ u d g e acknowledges t h a t h e

made t h l s f i n d l n g

"desplte some suggestlon by Mr.

Barker

(counsel

f o r t h e

Nomlnal

Defendant)

t o the con t r a ry . "

ca re fu l pe rusa l

the

evldence

lends

s u f f l c l e n t s u p p o r t t o t h i s f l n d l n g , t h e

only evldence belng

photograph (exhlbl t

H )

o f the vehlc le

wherein It i s apparent

tha t

the dr lver ' s door

is open.

However,

t he re i s no evidence as

t o when

or by whom

th ls photograph was

taken, except that

i t

1 s q u i t e apparent that

lt was

taken af te r

t h e body of

t h e p l a l n t l f f

was removed

€rom the veh lc l e .

It 1s on

the evldence equal ly posslble that the door

was

opened by

t h e

w l t n e s s Krebs

o r h l s

companion

Cublllo

(who was

nct c a l l e d t o

t e s t l f y ) I n mspec t lng or

removlng

t h e p l a l n t i f f ' s

body.

There

1 s

e v i d e n c e a t a l l

t o when

the openlng of the dr lver 's door

occurred.

The only evldence

is t h a t lt was open when the photo-

graph (exhlbzt

4 ) was taken, which was subsequent t o t h e removal

t h e p l a l n t i f f ' s

body.

I t

fo l lows tha t

not

a p p r o p r l a t e t o f i n d t h e s e p a r t i c u l a r

ob jec t ive

f ac t s

were

"well and undeniably

es t ab l i shed . ' '

I n

f ac t

open

t o argument

tha t t he t r l a l j udge shou ld no t

have

made

these

f lnd ings ,

and

cer tamly he should not have

made,

i n the absence

evidence,

f ind ing as to the e f fec t o f the impact

and

consequent behavlour of the vehicle

the occupancs, be

It a s

the result

centrifugal

f o r c e o r

any

o ther phys ica l forces .

f a r a s t h e r e

1 s an

obligation

t o t h e a p p e l l a t e c o u r t t o

"d i sp lace" the dec l s lon

the

t r l a l

Judge,

the

abovementloned

mat te rs jus t i fy the d lsp lacement .

The

t r i a l Judge was

s a t l s f l e d on

the evldence

to f lnd tha t

could reasonably be Inferred

the ba lsnce of probabl l l t l es

that

the deceased Brodie

was

the d r lve r .

Eolowever

t o me

t h e

conclusion appears equally

open tl?at the deceased

was a passenger

throvm out a t or short1.y a f t e r t h e

moment

of Impact.

Such

concluslon I acknowledge i s mere conlec ture , bu t

so is, 3 n my

view, t h e conclusion drawn by t h e trml judge.

The evldence

p a r t i c u l a r

vlew

thereof can easl ly support e l ther conclusion,

and

i n my

vLetr

t he re

1 s no

j u s t i f l c a t l o n f o r d j s c e r n l n g

pos i t ive bas i s for the Inference	which	t h e p l a l n t l f f	must	accepk
the onus of es tabl lshlng.

I n my

opinlon the

judgment

t h e t r i a l

judge should be

set

as lde and

judgment

en te red fo r t he

Nommal Defendant

wi th

cos t s

both of

this appeal

and

I n t h e

court

below.

these

circumstances

it i s unnecessary

and inappropriate f o r me t o give conslderat lon

I	I
I

t o t h e c r o s s - a p p e a l o f ' t h e p l a l n t l f f

seeklng

lncrease

I n

the

amount of damages awarded by the tr ial judge.

c e r t i f y t h a t t h i s

and

t h e 6 preceding pages

a r e a t rue copy of

the Reasons for

Judgment of

M r .

Jus t ice FTsher.

Dated: 7 September, 3 978

. .

- .

[1978] FCA 82

7 Sep 1978