West v Government Insurance Office of NSW

[1981] HCA 38

HIGH COURT OF AUSTRALIA

Stephen, Mason, Murphy, Aickin and Wilson JJ.

WEST v. GOVERNMENT INSURANCE OFFICE OF N.S.W.

(1981) 148 CLR 62

31 July 1981

Negligence

Negligence—Highway—Collision between motor vehicles—Evidence of negligence—Inferences from proved facts—Intersection—Duty of drivers to exercise reasonable care—Duty to give way to vehicle on right—Road Traffic Regulations 1909 (N.S.W.), regs 67, 67A.

Decisions

July 31.
The following written judgments were delivered: -
STEPHEN, MASON, AICKIN AND WILSON JJ. This appeal concerns an intersection collision in which the driver of one car, Boardman, was killed and the driver of the other, West, was injured. West sought damages from the Government Insurance Office of New South Wales, the authorized insurer of the car driven by the deceased. Having failed at first instance for want of evidence of negligence on the part of the deceased, his appeal to the New South Wales Court of Appeal was dismissed by a majority. He now appeals to this Court. (at p63)

2. The accident occurred at night at the intersection of Memorial Avenue and Copeland Street, Liverpool. The appellant was driving west along Memorial Avenue when he collided with the deceased, who was driving north along Copeland Street. A shop on the south-eastern corner of the intersection restricted the view which the driver of each car could gain of the other as both cars approached the intersection. "Stop" signs were erected at the intersection which, however, applied only to vehicles in Memorial Avenue. They accordingly applied only to the appellant's car. (at p64)

3. The trial, which took place more than ten years after the accident, was marked by a paucity of evidence. Both West and his wife claimed to have suffered from retrograde amnesia after the accident and said they remembered nothing about the circumstances of the collision; the trial judge was dubious concerning their claims. Of the five passengers in the car driven by the deceased only Mrs. Boardman, the widow of the deceased, gave evidence and she was called on behalf of the plaintiff. The defence called no evidence on the issue of liability; the failure to call the four other passengers went unexplained. The only other witness to speak of the accident was the policeman who had attended the scene on the night of the accident. He gave evidence of what he saw after the accident and through him were tendered a plan of the intersection and photographs of the intersection and of the two cars. (at p64)

4. No witness could describe the course or speed of the appellant's car and all that Mrs. Boardman could say of the deceased's car was that, because the deceased knew, so she said, that he was approaching an intersection with a blind corner, he did not drive up to it at a normal speed, instead "he slowed up, definitely". She saw nothing of the appellant's car other than a flash of lights on her right coming from Memorial Avenue, after which she remembered nothing until she regained consciousness following the accident. There were no skid marks which could be linked with either car. The point of collision was somewhat to the south-west of the centre of the intersection, each car thus being on its correct side of the road immediately before impact and the appellant's car having reaching a point rather further across the intersection than had the deceased's car. The remaining evidence was confined to the state and position of the two cars after the accident, both substantially damaged and at rest to the north-west of the intersection; the appellant's car had mounted the pavement and crashed through a fence, the deceased's car had rolled over and come to rest upside down but still largely on the road surface at the north-west corner of the intersection. (at p64)

5. The trial judge inferred that the collision was one involving considerable force. He accepted Mrs. Boardman's evidence of the speed of her husband's car, describing it as "slowing down approaching the intersection". Because of the force involved in the collision he went on to conclude that it was "improbable in the extreme that the plaintiff's vehicle was travelling at a slow speed at the moment of collision"; the probabilities, he thought, were that it "came through the Stop sign at a rather fast speed". This he regarded as showing the appellant to be what he described as negligent, having either failed to see the Stop sign or, having seen it, failing to comply with it. (at p65)

6. Only after reaching this conclusion did his Honour consider the conduct of the deceased whose negligence it was that West, as plaintiff, was seeking to establish. He found there to be no evidence of excessive speed on the deceased's part nor of any failure to keep a proper lookout. His Honour regarded the deceased's entry into the intersection at a time when the appellant's car was also approaching or entering it as consistent, on a number of hypotheses, with no negligence on his part. He instanced a number of such hypothetical situations, none of which could, of course, be established because of the want of evidence but the possibility of which sufficed to prevent it being otherwise inferred that the deceased acted negligently. His Honour accordingly concluded that the appellant had failed to establish negligence on the part of the deceased. (at p65)

7. On appeal it was again the inferred conduct of the appellant that, for the majority, provided the main focus of attention, in particular his speed across the intersection and, inferentially, whether he had stopped before entering it. Two circumstances, the force of the collision, as shown by the damage to and final position of the two cars, and the slow speed of the deceased's car, were said to combine to point to high speed on the part of the appellant's car, borne out by the positions of the two cars when they came to rest. This established, their Honours were able to conclude that there were no grounds for disturbing the conclusion of the trial judge. (at p65)

8. In his dissenting judgment Samuels J.A. also analyzed the damage to the cars and their position after the accident but as a result of that analysis reached a quite contrary conclusion. His Honour found nothing inconsistent with the appellant having stopped at the intersection and having crossed it at a slower speed than that at which the deceased was travelling. There would then remain, his Honour said, the deceased's negligence in failing to give way to the plaintiff. The outcome, he thought, should be judgment for the appellant, the matter to go back for argument on the issue of his contributory negligence. (at p65)

9. In our view this was a case in which the dearth of evidence was such as to prevent any inferences being drawn as to the conduct of either driver during the moments immediately before the collision. The only direct evidence of speed was the quite vague description given by Mrs. Boardman of her husband approaching the intersection more slowly than would be normal. Unaided by skid marks attributable to either of the cars, we do not regard the evidence about the point of collision, the damage to the cars or the positions at which they came to rest as allowing any inferences to be drawn regarding their courses or speeds immediately before they collided. There was no expert evidence which could cast light upon the forces involved in the collision or upon what could properly be deduced from the extensively damaged cars and the positions which they came to occupy after the collision. To arrive at conclusions as to relative speeds on impact, bearing in mind all the variable factors, including the masses involved, the angle of impact, the movements of the cars from first impact until they came to rest and the friction forces at work throughout, seems more akin to conjecture than to inference. It is not insignificant that members of the Court of Appeal, in attempting to draw inferences from these facts, reached opposing conclusions. It is well to recall what was said by Dixon C.J. in Jones v. Dunkel (1959) 101 CLR 298, at pp 304-305 where he said:

"In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind."

His Honour went on to say that the law "does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied" and see also T.N.T. Management Pty. Ltd. v. Brooks (1979) 53 ALJR 267, at p 269 per Gibbs J. (at p66)

10. In this case road traffic regulations played a part in the conclusion arrived at, both at first instance and on appeal. In Sibley v. Kais (1967) 118 CLR 424, at p 427 this Court acknowledged the relevance of such regulations in considering the conduct of users of the road, although it made it clear that their provisions could not be "definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves. . . . The common-law duty to act reasonably in all the circumstances is paramount". In gaining in the present case such assistance as may be had from the requirements of the relevant regulations a difficulty arises: the particular application of relevant regulations to the two vehicles will depend upon whether or not the appellant stopped before entering the intersection. If that cannot be determined, it cannot be said which of the two drivers was in breach of the regulations and any such breach is then not available as a factor in determining negligent conduct. The Stop sign confronting the appellant in Memorial Avenue required him, pursuant to the then form of reg. 67A of the regulations under the Motor Traffic Act 1909 (N.S.W.), to bring his car "to a standstill before reaching and as near as practicable to the stop line . . . or, if there is no such stop line, before reaching and as near as practicable to the intersection" - sub-reg. (1). There was no evidence of any stop line in Memorial Avenue. Having stopped the driver "may, subject to the Act and Regulations, cause the vehicle to proceed" - sub-reg. (3). Sub-regulation (4) provides that nothing in reg. 67A "shall be construed to justify the driving of any motor vehicle contrary to the provisions of Regulation 67". (at p67)

11. Regulation 67 provides that when two cars are approaching an intersection "so that if both continued the vehicles would arrive at the same point together and collide, the driver of the vehicle which has the other vehicle on his right-hand side shall lessen the speed of or stop his vehicle and allow such other vehicle to pass in front thereof". In this case the deceased had the appellant's car on his right-hand side as he entered the intersection. (at p67)

12. Where, as here, both these regulations are applicable to the one set of circumstances, the car on the right being also the car facing a Stop sign, questions arise as to their interaction; in particular, does the "give way to the right" rule apply in favour of a car which, having stopped in obedience to a Stop sign, thereafter resumes its journey across an intersection? (at p67)

13. The specific references in reg. 67A (3) and (4) respectively to "subject to the Act and Regulations" and to "driving . . . contrary to the provisions of Regulation 67" do little of themselves to answer this question. They seem to be concerned to ensure that a driver who faces a Stop sign and stops in obedience to it is not thereafter released from observance of the Act and Regulations and, in particular, of the duty to give way to those on his right. They are not directed to the case of such a driver who is himself the driver on the right. (at p67)

14. Authorities apart, a reading of the relevant regulations suggests that once the driver facing a Stop sign has stopped in obedience to it and begins to move forward again when it is safe to do so he is in the same position as any driver "on the right". An approaching driver on his left should give way to him. Thereafter the ordinary rules of the road, including the "give way to the right" rule can once more operate, although, of course, in questions of civil liability overlaying all will be the obligation of each road user to exercise reasonable care for others. (at p68)

15. Australian authorities require careful examination of their particular statutory and regulatory context lest the sometimes significant variations occurring from State to State affect the outcome. However, observing this caveat, what a reading of the regulations suggests is in fact supported by applicable authority. In Mann v. Konowalo (1957) 58 WALR 83, at p 86 Dwyer C.J. treated a driver, once he had stopped at a Stop sign, as being thereafter "again on the same footing as if he were an approaching vehicle not at a stop sign at all . . . once he has stopped . . . he has fulfilled his duty and then his duties will become the same as they were before . . . "; the duty of giving way to him as being the vehicle on the right would once more arise. See also Wareing v. Giddins (1952) St R Qd, at p 24 . (at p68)

16. Accordingly, if the appellant, having first stopped at the Stop sign, had proceeded to cross the intersection, he would not have been in breach of the regulations. He might then have expected that vehicles on his left would, in accordance with the regulations, give way to him, although he would have remained subject to the common law obligation to exercise reasonable care with respect to other vehicles on or in the vicinity of the intersection. If, instead, he had driven straight across the intersection without first stopping he would be in clear breach of the regulations. The conjoint effect of these regulations accordingly depends upon whether or not the appellant did stop at the Stop sign. The trial judge concluded as a matter of inference that he did not stop and the majority of the Court of Appeal upheld that conclusion. Samuels J.A., on the contrary, thought the evidence to be equally consistent with the inference that he had stopped at the Stop sign. (at p68)

17. Since we regard the available evidence as insufficient properly to allow an inference to be drawn one way or another, it follows that we cannot arrive at either of the rival conclusions, that the appellant had failed to observe the Stop sign or that the deceased had failed to observe the give way to the right rule. Neither breach of regulation is therefore available to assist in reaching a conclusion as to liability. (at p68)

18. Although it may be reasonable to infer that one or other of the drivers was negligent there is no evidence sufficient to establish that it was the deceased driver or that it was not the appellant. The outcome is that we regard the appellant as having failed at the trial to establish negligence on the part of the deceased. There remains one matter for comment. We earlier referred to the fact that four passengers who were travelling in the deceased's car were not called as witnesses and that their absence went unexplained. In Jones v. Dunkel (1959) 101 CLR, at p 312 Menzies J., speaking of what should, in such circumstances, be a trial judge's directions to a jury, said that three things should be made clear:

"(i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."

What was said by Kitto J. (1959) 101 CLR, at p 308 is to the same effect. The delay over ten years between accident and trial would surely have grossly affected the recollection of those witnesses of such a long-past event, and this may in a sense explain their absence. But in any event it is clear from the passage which we have cited from Jones v. Dunkel that the critical deficiencies of proof apparent in the present case cannot be remedied by reliance upon any failure to call these witnesses. Accordingly, although differing in reasoning both from the trial judge and from the majority in the Court of Appeal, we would dismiss this appeal. (at p69)

MURPHY J. This case resembles T.N.T. Management Pty. Ltd. v. Brooks (1979) 53 ALJR 267 , but is more complicated. Briefly the accident, at a right angle intersection, was caused either by the plaintiff failing to observe a stop sign or by the driver of the other car (for whose negligence the defendant is liable) not giving right of way, or both. The plaintiff claimed he was unable to recall the accident because of amnesia resulting from the accident; his wife, the only passenger in his car, also claimed amnesia. The other driver was killed; his wife, who was a passenger in his car, gave evidence but her recollection was of little assistance. The other four passengers in his car were not called to give evidence. (at p69)

2. The case might have been resolved against the plaintiff by rejecting his evidence that he was unable to recall, and (inferring that his fault alone sufficiently explained the accident) declining to infer any fault on the part of the other driver. The trial judge expressed some reservation about the plaintiff's credibility, but did not use this to resolve the issues. I will deal with the case on the basis that the accident was due to the fault of the other driver or the plaintiff or both, and disregard any other possible cause. (at p70)

3. My assessment is that (leaving aside the failure to call the persons in the other car) there is no satisfactory basis for differentiating between the plaintiff and the other driver as (wholly or partly) causing the accident. If the principle of indifference is applied, then for the reasons I gave in T.N.T. Management Pty. Ltd. v. Brooks, the case may be treated as one in which it is more likely than not that the other driver was responsible (wholly or partly) for the accident, just as it is more likely than not that the plaintiff was responsible (wholly or partly). At common law the plaintiff would be entirely defeated. The Law Reform (Miscellaneous Provisions) Act 1965 (N.S.W.) s. 10 provides where "any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". The reasonable application of these provisions requires, in these circumstances, in accordance with the principle of indifference, that the plaintiff recover half his damages.

Failure to testify. (at p70)

4. No explanation was given for the failure to call the witnesses in the other car. The proper inference to be drawn is that the witnesses if called would not assist the defendant's case, but would assist the plaintiff's case (Jones v. Dunkel (1959) 101 CLR 298 ). The inference from unexplained failure to call witnesses may be used to strengthen inferences from circumstances as well as from direct evidence. Although the plaintiff's case presents alternatives that the other driver was wholly at fault, and that the other driver was wholly or partly at fault, the proper inference is that the witnesses if called would assist the plaintiff at least to the lesser extent of his claim. (at p70)

5. If unavailability of witnesses or absence of recollection is the explanation for failure to call the witnesses this should be given by evidence. It is not to be presumed from passage of some years. Trials of such cases are commonly heard years after the event; recollections can be refreshed, and various methods are available for proof of records of past recollection. Therefore the unexplained failure to call the four witnesses strengthens the inference that the other driver was responsible (wholly or partly) for the accident. (at p71)

6. The appeal should be allowed. The case should be remitted for assessment of the plaintiff's damages and judgment should be for the plaintiff for half the damages assessed. (at p71)

Orders

Appeal dismissed with costs.