Van Den Heuvel v Tucker

Case [2003] SASC 110

VAN DEN HEUVEL  v  TUCKER
[2003] SASC 110

Full Court:       Doyle CJ, Duggan & Gray JJ

  1. DOYLE CJ AND DUGGAN J:        The plaintiff Mr Van Den Heuvel was a passenger in a motor car being driven by Mr Tucker, the defendant, on 12 June 1995.  Mr Tucker was driving in a southerly direction on Stuart Highway south of Coober Pedy and north of Pimba.  This is a sparsely populated area, in the far north of the State.

  2. Without warning the left rear axle broke, close to where it joins the left rear wheel of the motor car.  The wheel separated from the motor car.  Mr Tucker lost control.  The motor car veered to the right, ran off the road and rolled.  The plaintiff and other passengers in the car were injured.  There were five men in the car altogether.  The plaintiff sued Mr Tucker for damages, claiming that he drove negligently.

  3. As we understand the case, there is no basis to suggest that Mr Tucker could have or should have anticipated the axle failure.  However, the plaintiff argued at trial that if Mr Tucker was driving at about 110 kph when the axle failed, he should have been able to keep the car upright, exercising a reasonable degree of skill.  If, on the other hand, he was driving at about 140 kph when the axle failed, the plaintiff’s case in negligence rested on an allegation that Mr Tucker was driving too fast in the circumstances, and that the excessive speed caused or materially contributed to the loss of control, the consequent roll-over of the car and the plaintiff’s injuries.  The plaintiff’s case appears to have been that at that speed there was little or no hope of keeping the car upright.

  4. As a further alternative or variant of the latter proposition the plaintiff argued that the risk of the loss of control and roll-over in the event of a mechanical failure was materially increased by travelling at about 140 kph, compared with that risk at a lesser and prudent speed, that that risk materialised, and accordingly Mr Tucker was liable to the plaintiff.

  5. Considerable attention was given at trial to the question of whether Mr Tucker’s speed, when the axle failed, was about 110 kph (the applicable speed limit) or was about 140 kph (a finding for which the plaintiff contended).  The Judge did not make the finding for which the plaintiff contended.  The Judge appears to have found that Mr Tucker was driving at between 110 kph and 120 kph when the axle failed.  The Judge found that Mr Tucker was not negligent in driving at the speed at which he was driving when the axle failed.  The Judge also found that Mr Tucker handled the emergency reasonably.  He found in effect that Mr Tucker had no hope of controlling the car once the axle failed.  The Judge dismissed the claim.

  6. On appeal, much of the argument for the plaintiff was directed to an attack on the Judge’s finding…

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AGLC
Van Den Heuvel v Tucker [2003] SASC 110
Case
[2003] SASC 110
Decision Date

CaseChat Overview and Summary

The case of Van Den Heuvel v Tucker involves a claim brought by Frank Van Den Heuvel against Tom Tucker, the driver of a 1978 Chrysler station wagon, for damages resulting from a rollover accident on the Stuart Highway. The incident occurred on 12 June 1995, when the vehicle's rear axle failed, causing the car to leave the road, roll over, and come to rest in a ditch. Van Den Heuvel, along with three other passengers, sustained injuries in the accident. The trial was held in the District Court, and Van Den Heuvel appealed the judge's decision to dismiss his claim. The appeal focused on several legal issues, including the admissibility of additional evidence and the speed at which Tucker was driving at the time of the accident.

The Court was required to determine whether additional evidence, such as a recorded conversation between Tucker and another party, should be admitted. The evidence was deemed inconclusive and obtained by unfair means, leading the Court to exercise its discretion against admitting it. Additionally, the Court examined the evidence regarding the speed at which Tucker was driving. Van Den Heuvel argued that Tucker's evidence should have been rejected due to his credibility, but the Court found no basis to conclude that Tucker was driving at an excessive speed or that his inability to recall the speed would have made a difference in the outcome of the case.

The Court's reasoning focused on the inconclusive nature of the additional evidence and the circumstances surrounding its acquisition, which led to the decision not to admit it. The Court also found no evidence to support the claim that Tucker was driving at an excessive speed, and even if he was, it would not have changed the outcome of the case. The age of the vehicle and the duration it was driven at high speed were not deemed material factors in the risk of axle failure. Ultimately, the Court concluded that the appeal should be dismissed, as the plaintiff's case would still fail on the issue of causation.

The final orders of the Court were to dismiss the appeal, affirming the decision of the District Court to reject Van Den Heuvel's claim against Tom Tucker.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We have had the benefit of considering the reasons of Gray J. The facts that are to be found in those reasons. We will repeat the facts only to the extent necessary to explain our reasons.Should the further evidence be admitted? We agree with Gray J that the evidence of the conversation between Mr Nikolavcic and Mr Tucker should not be admitted. The evidence would not have produced a different result if it had been available at trial. Allowing for the circumstances of the conversation the evidence is inconclusive, as Gray J points out. We agree with Gray J that on appeal the Court can take into account the manner in which the evidence was obtained, in deciding in its discretion whether to admit the evidence or not. We agree with Gray J that the evidence was obtained by unfair means, and that that is an independent reason for the Court to exercise its discretion against admitting the evidence on appeal. We also consider that the manner in which the conversation was conducted to some extent undermined its reliability. There is no reason to doubt the accuracy of the recording and of the transcript of the recording with which we were provided. But the circumstances of the conversation were such that we are hesitant about relying on remarks made by Mr Tucker, in the manner in which the plaintiff seeks to rely on them. Taking all those matters into account we would exercise our discretion not to receive the evidence, having regard to its inconclusive nature and the circumstances under which it was obtained. We agree with Gray J that the conversation may have been recorded in circumstances that involved a breach of the Listening and Surveillance Devices Act. We agree that there may have been a breach of the applicable professional conduct rules by the solicitor concerned. However, as these matters were not fully argued we refrain from making any finding on the point. A conclusion adverse to the plaintiff on these points would be a further discretionary reason for refusing to admit the further evidence. We would not admit the further evidence as to the position of the speedometer on the instrument panel of the motor car. There is no good reason why the evidence could not have been led at trial, if reasonable diligence had been exercised in that respect. Nor are we satisfied that the evidence would have produced a different result. We agree with Gray J in that respect.At what speed was Mr Tucker driving when the axle failed? The plaintiff led evidence from the other passengers, and gave evidence himself, that when Mr Tucker shared the driving on the way to Coober Pedy, he drove fairly steadily at about 130 kph or more, until the stage at which they began to tow another vehicle. Mr Tucker denied this. Mr Peek QC, counsel for the plaintiff on appeal, submitted that the Judge should have rejected Mr Tucker’s evidence on this point, and that the rejection of his evidence would have reflected on his credibility. In his reasons the Judge accepted Mr Tucker’s evidence on this point, and said that he had reservations about the reliability of the witnesses called for the plaintiff.

Decision

Reasons for decision

DOYLE CJ
Gray J refers in passing to the fact that the motor car was almost 20 years old, and to the fact that it had been driven at high speed for a lengthy period. On our understanding of the evidence, the age of the vehicle was not a reason why Mr Tucker should have driven at a lesser speed, nor was there evidence suggesting that the period of time for which the motor car was driven at a high speed was material to the risk of the occurrence of the axle failure. We have already explained why we do not agree that Mr Tucker was negligent in being unable to state the speed at which he was driving. Our view of his evidence is that he meant that he could not state the speed with any degree of accuracy. But even if the correct conclusion is that he was driving at 140 kph, the fact that he was unaware that he was driving at that speed does not advance the plaintiff’s case in the particular circumstances. That case would still founder on the issue of causation. Gray J also refers to the fact that because of the speed, the roll-over occurred at a higher speed than otherwise would have been the case, and that that brought with it an increased risk of injury. In our respectful view 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.Conclusion For all those reasons, we consider that the appeal should be dismissed.GRAY JIntroduction Following a motor vehicle rollover on a sealed rural highway a passenger brought an action against the driver in negligence. The trial proceeded in the District Court. This is an appeal against the judge’s decision to dismiss the passenger’s claim. General Circumstances of the Collision On Monday 12 June 1995 at about 2.40 pm Tom Tucker, the defendant and respondent, was driving a 1978 Chrysler station wagon in a southerly direction on the Stuart Highway. The rollover occurred approximately 21 kilometres north west of Pimba on a straight stretch of road. Frank Van Den Heuvel, Jason Tucker, Stephen Nikolavcic and Frank Deeble were passengers in the vehicle. All sustained personal injury. The vehicle was owned by Mr Van Den Heuvel’s brother. It was common ground that the vehicle left the road following rear axle failure. The vehicle crossed the western carriageway and moved onto the dirt verge before coming to a ditch. It then rolled over and came to rest about 40 metres west of the road. Police attended at the scene about 40 minutes later. By this time the vehicle was burnt out. Fire and ambulance services were still in attendance.The Police Attendance No police officers gave evidence at the trial. However a copy of the police report was tendered. The report disclosed that at the time of the rollover the road was dry. It was a cool and overcast day. There was no sign of recent rain. Visibility was clear. The police examination at the scene revealed two gouge marks. One was 10 paces in length, on the eastern carriageway close to the centre line, and the other, seven paces in length to the southwest on the western carriageway[1]. [1] There was no evidence about the length of a pace.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ

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