Van Den Heuvel v Motor Accident Commission (SA) & Anor

[2004] HCATrans 289

[2004] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A232 of 2003

B e t w e e n -

FRANCISCUS VAN DEN HEUVEL

Applicant

and

MOTOR ACCIDENT COMMISSION (SA)

First Respondent

TOM TUCKER

Second Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 2.20 PM

Copyright in the High Court of Australia

MR D.H.PEEK, QC:   If it please the Court, I am here with my learned friend, MR B.J. DIXON, for the applicant.  (instructed by Dixon Gallasch)

MR S. WALSH, QC:   If the Court pleases, I appear with my learned friend, MR B.R.N. JAMES, for the first respondent.  (instructed by Hunt & Hunt)

GLEESON CJ:   There is a certificate from the Deputy Registrar that she has been informed by the solicitor for the second respondent in this matter that the second respondent does not intend to take any part in these proceedings.

MR PEEK:   Yes, we understand.

GLEESON CJ:   Yes, Mr Peek.

MR PEEK:   It will not surprise the Court to learn that we seek to embrace and adopt the judgment of Justice Gray in this matter.

GLEESON CJ:   But there is a problem, is there not?  You have concurrent findings of fact made by the majority in the Full Court and the judge at first instance.  The concurrent findings are that the car was not travelling at 140 kilometres per hour but was travelling between 110 and 120 and you also have concurrent findings that in the circumstances it was not negligent for the driver to be driving at that speed.  So how does any issue of causation arise?  Unless we disturb those concurrent findings, there is no negligence.

MR PEEK:   What I wish to do – and I think it is even more appropriate in the light of what your Honour just puts to me – is take the Court, if I may, to two short passages in the judgment of the trial judge, take the Court to some passages in Justice Gray’s judgment, without necessarily reading them in extenso, showing where they conform or differ from the majority judgment, and then attempt to justify a grant of special leave in all of the circumstances and including what your Honour has just put to me.

If I can just take the Court to a couple of brief passages in the judgment of the trial judge at application book 5, paragraph 24 – and this addresses squarely what your Honour has just put to me – right down the bottom of that page:

Tom Tucker, the driver, in his evidence said that he was travelling at somewhere around 110 to 120 kilometres per hour but occasionally his speed would creep up towards 130 and perhaps 140.  He would notice that and immediately bring back his speed to the normal rate of travel.

The next passage, if I can take the Court to application book 8 at paragraph 33:

Having found that their observations were spasmodic and likely to occur when they felt the speed had increased I find I accept the evidence of Mr Tucker notwithstanding his vagueness that he was usually travelling at 110 to 120 kilometres per hour, occasionally increasing the speed unconsciously and then when he became aware of that decelerating back to a normal speed.  There are other matters in the evidence –

et cetera.  Then, finally, at application book 9 at paragraph 45, if I may:

I think it is more likely than not that the driving of Tom Tucker was varying between his cruising speed of 110 to 120 kilometres per hour and occasionally creeping up to 130 to 140 kilometres per hour, where as soon as he noticed it he brought the speed back to his usual travelling speed.  He does not know at what speed he was travelling at the time of the accident –

and I pause there to notionally underline that and, indeed, the evidence was that he conceded that it might have been 110, might have been 120, 130 or 140 at the time of the accident, for all he knew.  His Honour goes on:

nevertheless, I find there is no inconsistency with –

and I rather think that means “between” –

his evidence and that of Mr Hall.

The Court will appreciate that there was a calculation by Mr Hall of a range of 100 to 120, so his Honour is saying that there would not necessarily be any inconsistency there.

Now, of course, the Court is aware of our points in relation to the appropriate approach to expert evidence in a case of this sort and insofar as the judge is, as it were, relying on calculations made on a very flimsy footing, we say with respect – and for that we refer to the analysis of Justice Gray – then what Justice Gray says about expert evidence and what we say is a special leave matter come to the fore.

Staying with the plan, as it were, can I now take your Honours to a couple of passages in the judgment of Justice Gray.  First, at application book 81, paragraph 115.  It is here that his Honour accurately sets out what the defendant’s case was and refers to the evidence of Tucker about:

the speed would “creep up” to as much as 140 . . . Mr Tucker was unable to say over what periods the vehicle had travelled . . . He was unaware of his speed at the time of the axle failure.

That corresponds to passages I have read out in the trial juge’s judgment.  Then at page 82, paragraph 117 his Honour says:

The judge did not make any finding about the speed of the vehicle at the time the axle failed.

We say that is correct, subject, of course, to his apparent adoption of the calculation by Mr Hall about which we have other complaints.  Then if I can take the Court to page 108 where we start to engage matters of principle.  At paragraph 196 his Honour says:

The law imposes a duty on the drivers of motor vehicles to drive with due care.  This duty includes the obligation to drive defensively and to guard against foreseeable consequences.  As earlier observed mechanical failure is one such consequence.  Tyre blowouts and brake and axle failures are examples.  These incidents are foreseeable . . . A driver must take precautions to guard against the risk of such mishaps occurring.

GLEESON CJ:   Now, what precautions do you take to guard against the risk of axle failure?

MR PEEK:   Well, what his Honour says and what we would embrace is that it is a matter of minimising the risks rather than necessarily completely obviating them and that, in this particular case, the greater the speed, the greater the risk, and ‑ ‑ ‑

HAYNE J:   Why?  When you are talking between 100 and 140 and the axle fails catastrophically, are you suggesting you can control it at 100 but you could not at 140?

MR PEEK:   Well, one needs to come back one step from that, if I may.  The evidence of the engineer called by the plaintiff was that that higher speed would play a role in hurrying or bringing forward, as it were, any such fracture if it was going to occur.  So, in other words, the speed of 140 is more likely to accelerate that process in time.  Of course, what follows from that is that if he were doing, say, 110, one cannot predicate that the axle would have failed at the time that it did and in the circumstances that it did.  So one gets to an uncertain situation where one would not know when the axle would have failed, if it ever would have.  It may have failed at quite a sedate speed going through the streets of Adelaide eventually, which may have led to some sort of an accident, but to a completely different outcome.

Now, what really, of course, is important in this case is the question of who has the evidentiary onus in such matters.  You see, if it was the plaintiff to call evidence about those things, then there are certain difficulties to which the majority refer.

GLEESON CJ:   But you only get to this question if there is a finding of negligence.  Causation does not arise unless there is negligence, and both the trial judge and the majority in the Court of Appeal found that there was no negligence in the driving.

MR PEEK:   We say that, first of all, the majority proceeded on two alternative bases.  First, if we are right as to 140 and that the trial judge erred in the way that he approached the matter – and that too is a special leave point, we would submit – but, secondly, even on the defendant’s own story that it was somewhere between 110 and 120 – so really we do have to fasten on 120 – even putting aside his words that it crept up to 140, their Honours looked at that and said, “Does that mean, because it is over the speed limit, that there is some negligence there?”  Now, we say, as a matter of principle, insofar as their Honours answered that in the negative, their Honours erred, because we say that speed limits are there for a particularly good reason and they are addressed to questions of safety. 

Now, one is not forced to drive at the maximum speed limit.  One can drive less than that, but if one drives over the maximum speed limit, even though it may only be 10 kilometres in the worst scenario for my client, one does not just, as it were, fixate on that 10 kilometres; one asks, here we have an old 1978 Valiant, we have it being driven at quite a fast speed of 120 kilometres in circumstances where there is evidence that the breaking of the axle was contributed to by speed.  Now, in those circumstances, we say that that is enough to raise an evidentiary onus on the defendant to point to evidence which demonstrates that these consequences would have occurred in any event.

GLEESON CJ:   That is on the issue of causation, but to get to the issue of causation you have to overturn the finding of no negligence.  Your argument, as I understand it, is that exceeding the speed limit means that there was self-evidently negligence.

MR PEEK:   Not just that, in the sense that there was evidence in the case that his Honour should have paid heed to, that the faster the speed, the more difficult it was for a driver in those circumstances to ameliorate or avoid the rollover.  So it is not just a question of the speed, and it is not just that bearing upon the breaking of the axle; it is what happens after the axle breaks as well.  As his Honour Justice Gray says, the components of such an accident are momentum in the sense of the speed and the constant weight of the vehicle, of course, and its behaviour.  So that if you have a rollover at, say, 140, the consequences for a person inside that car may well be quite different than if it occurred, say, at 100.

We submit that – and I appreciate what your Honour is putting to me – once we can get to square one on the negligence issue, that you then have the real shifting onus point, which is a very important one indeed, we would respectfully submit.  We say that their Honours in the majority got it wrong in finding that there was no negligence, as a matter of principle, not just a concurrent finding of fact, as it were, but as a result of the application of principle, because we refer to the passages that I was about to come to at page 108 of the application book.  I can just indicate them to the Court, under the heading of “Reversal of the Evidentiary Onus”, but directed to the point we are talking about as well, in Chappel v Hart as they are there reproduced on that page and going over to the next page. 

Now, their Honours are dealing, before you get to the evidentiary onus point, with the question of negligence in such cases.  We submit that the correct test is as there set out, namely, that if the defendant increases a relevant risk and an accident in the area of that risk eventuates, then you have negligence.  It is on that issue that Justice Gray on the one hand and the majority on the other parted company.  So they parted company at that early point in relation to negligence, as your Honour puts it to me, and also on the later point in relation to causation.  Now, those two points, as it were, are of course interrelated but different, but both important.

Of course, Justice Gummow – I will not read that on page 109 and Justice Kirby also on 109.  Within the extract from Justice Kirby, the Court will see at about line 25 down that page a reference to the judgment or the advice of Lord Wilberforce in McGhee, saying that:

Lord Wilberforce’s statement in McGhee has proved controversial in England, it has received support in this Court.  Its principle has also been accepted by international experts –

Now, the majority on the other hand, when addressing that judgment of Lord Wilberforce, said that it had not received approval in Australia.

GLEESON CJ:   Just notice the first two lines of what Lord Wilberforce said:

The question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk –

etcetera, something happens.  It is all based upon the assumption that there has been negligence.

MR PEEK:   But we say in the sense of an increase of risk, your Honour, that that is the test of negligence here, an increase of risk

GLEESON CJ:   Just a moment.  The increase of risk of which you are speaking occurred the moment the car went from 0 to 10 kilometres an hour.  If speed and momentum are necessary for an axle failure that causes a rollover, then the risk was increased the moment the car was moved at all.

MR PEEK:   Of course that is right as a matter of strict analysis, but what we say is that there has to be a balancing in society between the undertaking of some legitimate risks and so the law lays down a matrix that you can drive up to a particular speed in certain areas, up to another speed in others.  The balancing process we are looking at here is addressed to safety, so that we say once you get a decision by a driver to say, “Well, I am not going to adhere to that; I am going to drive faster than that, or I am not even going to worry about what speed I am doing”, as Justice Gray forcefully points out, you are into the area of, as it were, illegitimately, if I can put it that way, increasing the risk.  So that would be my answer to what your Honour points out to me there.

What I say is an aspect of the special leave point about this evidentiary onus is, of course, the precise status of Lord Wilberforce’s approach in McGhee, because I do not think that it has been definitively looked at.  There are some comments, as Justice Kirby says.  But it is an important matter, riding, as it does, and in tandem with such cases as Chappel v Hart, but applying those cases which, of course, are in the area of medical negligence to a rather different but important area of negligence on the roadway.

We would, therefore, then go to the position that Justice Gray comes to at page 110, commencing at paragraph 200, namely:

Given the prima facie case of causal connection the evidentiary onus of establishing that there was no causal connection between breach of duty and damage rested with Mr Tucker.  An immediate difficulty confronting Mr Tucker in that discharge of the evidentiary onus was that he had no knowledge of and was unable to establish his speed at the time the axle failed.

And it goes on from there.  His Honour deals with the matter of increased risk, which I have to some extent already made submissions about, and his analysis follows over the next two pages or so.  Now, the starkness of the

contrast is that if you go down the majority’s route, of course, they say that it is the plaintiff who has a problem.  They say at paragraph 89:

there is no evidence to establish that an accident or roll-over at a speed of 110 kph would have caused materially different injuries –

They say at paragraph 90:

there is no evidence that the time or place at which the accident happened increased the risk of the injury occurring.

And at 104:

there is no evidence to support the conclusion that a roll-over at 140 kph would have produced significantly different consequences for the plaintiff than a roll-over at 110 kph.

Now, I would have thought that was self-evident, but that is what their Honours say, with respect.  Now, the point is that if the approach of Justice Gray is correct, then, of course, it is for the defendant to adduce matters on those three aspects that the majority, as it were, has put on the plaintiff’s onus.  Therein lies the importance of this case, extending way beyond the facts of this case – and, of course, this case is important enough to the plaintiff.  It was a very serious accident indeed.  But it goes beyond that to govern the correct approach to this sort of matter at large.

The other special leave points I will obviously have to rely largely on my written submissions, which I know the Court has looked at, but the Court will have noted that there were three special leave points in our submission.  The second one was the matter of the approach to expert evidence and the question of ultimate issue and the sub‑question of whether it is sufficient or justifiable for a trial judge to, as it were, simply adopt the evidence of one witness in circumstances where, as Justice Gray points out here, he has erroneously rejected evidence of the witnesses of the opposing party. 

Finally, the last matter C, was the correct approach to appellate review under the Supreme Court Act section 50, and I adopt my written submissions in relation to that. If it please the Court.

GLEESON CJ:   Thank you, Mr Peek.  We do not need to hear you, Mr Walsh.

Having regard to the concurrent findings of the trial judge and the majority in the Full Court on the issue of negligence, this case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

AT 2.41 PM THE MATTER WAS CONCLUDED