Wieben v State Government Insurance Office (Queensland)

[1991] HCATrans 171

..

• 'I

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BS of 1991

B e t w e e n -

BARRY WILLIAM WIEBEN

Applicant

and

STATE GOVERNMENT INSURANCE

OFFICE (QUEENSLAND)

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 10.47 AM

Copyright in the High Court of Australia

Wieben 1 27/6/91

MR K.A. CULLINANE, QC: If the Court pleases, I appear with

my learned friend, MR A.J. MOON, for the applicant.

(instructed by Messrs Connolly Suthers)

MR R.R. DOUGLAS, QC:  I appear with MR J.P. BARBELER for the

respondent. (instructed by Messrs Bowdens)

BRENNAN J:	Mr Cullinane.
MR CULLINANE:	Your Honours, we did provide to the Court and

our learned friends a written outline of our

submissions.	Can I ask whether Your Honours have a
copy of that?

BRENNAN J: Yes, we have a copy of it, but for myself, I

have not had an opportunity to read it, so if you

will just give me a moment, Mr Cullinane. Yes,

Mr Cullinane.

MR CULLINANE:  Your Honours, it is necessary for me only to

speak fairly briefly to our written submissions.

This is not a case in which we suggest that there

is any general or important principle that requires

this Court's elucidation or determination. It is

an application which is directed towards the second

part of section 35A, the administration of justice

grounds.

Your Honours, essentially what happened is that the Full Court disturbed a finding of the

trial judge of fact. It was not suggested that

there was no evidence to support that finding, nor

was it suggested that His Honour misapprehended any

fact, or overlooked ·any fact, or indeed that

His Honour was wrong. What was suggested was that

His Honour had, in evaluating the evidence of one

of the witnesses, been deficient in the evaluation

exercise.

Very briefly, I will take Your Honours to the

relevant parts of the two judgments, but the action

was one in which the plaintiff claimed damages for

personal injuries. One of the issues was whether

the plaintiff had been guilty of contributory

negligence for travelling in a motor vehicle when

the driver was so affected by the consumption of

alcohol as to make it unsafe for him to do so.

Thera was a dispute as to who the driver was and

His Honour found that he could not determine that

question, so that the defendant had to establish

contributory negligence on either eventuality.

His Honour found that the defendant had not

satisfied him that one of the possible drivers was

exhibiting any signs of the consumption of alcohol.

It was that finding that the Full Court set aside

and ordered a new trial limited to that single

Wieben 2

issue, an issues which would not in any case, in

our submission, be determinant of any issue between

the parties.

It is said that His Honour erred because, in

evaluating the evidence particularly of one

witness, he failed to take into account the other

evidence on the question, evidence with which

His Honour expressly dealt in the course of his

judgment.

If I could take Your Honours immediately to

the findings of His Honour the trial judge, which

commence at page 2 of the record, and particularly

at page 3, but they fall within a very narrow

compass.	From about line 42 onwards His Honour
said:

There is no doubt that each of the three in the party had a good deal to drink on the

day and in the evening preceding the date of

the accident. I do find that the plaintiff

had less than the other two, and that he went

to sleep before the other two. I am not able

to come to any conclusion as to how long the

others continued to drink or as to their

respective consumptions. I am not prepared to

rely on the evidence of either the plaintiff

or the defendant Wain as to what were the

conditions of the defendant Wain and the

deceased when they woke in the morning.

So far as the deceased is concerned, the

defendants rely basically on the evidence as

to the result of the analysis of a blood

sample taken from his body. All that I say

about that is that having regard to the

fallout which must have taken place, the level

of .258 appears to be suspiciously high. I

say no more about that because I think that

the defendants must fail on the hypothesis

that the defendant Wain might have been the

driver. It was not argued - indeed I think	that the contrary was conceded - that if the
analysis of the deceased's blood was correct one could apply that to the case of the
defendant Wain. There was not sufficient
evidence to justify that exercise.

Your Honours, it is the next passage that the

Full Court suggested indicated that His Honour

erred in his evaluation of the witness who he then

refers to.

What was relied on was the evidence of

Dr Treichel. He gave evidence of observing a

number of relevant indicia, namely, blood shot

Wieben 3

eyes, inaccurate spatial movements,

inappropriate speech patterns, and what was to

me a new indicium in this field, an inability

to meet the doctor's eyes.

This would hardly be persuasive even if

uncontradicted. But I accept the evidence of

Dr Callanan, an undoubted expert in the field,

that one could not confidently say that those

indicia were not equally likely to follow on a

blow to the head. If that be so, there is not

any evidence which I find acceptable that the

defendant Wain was showing any observable

indicia of any impairment of his capacities at

any relevant time.

Before I take Your Honours to the passage in the

judgment of the Full Court in which His Honour's

findings in that regard are criticized as

exhibiting a deficiency in evaluating that

evidence, Their Honours in effect said that

His Honour assessed the evidence of Dr Treichel

apparently in vacuum. In other words, that on the

face of His Honour's judgment he appears to have

considered it without reference to the evidence

that he had earlier referred to on pages 2 and 3.

This appears, Your Honours - - -

TOOHEY J:  Is that quite the way it was put, Mr Cullinane?

I thought rather what the Full Court was saying was

that in assessing Dr Treichel's evidence and in, as

it were, not rejecting it but having regard to

Dr Callinan's evidence, that what Dr Treichel

observed could have been the result of an injury to

the head, the trial judge failed to take into account the alcohol reading in respect of the

deceased driver which, given the fact that they had

been drinking much at the same rate, could not be transposed readily to Wain, but at least was some evidence, or might afford evidence, as to the

amount of alcohol Wain had consumed.

MR CULLINANE:  Yes, Your Honour, I think that is right.

Their Honours said that His Honour did not take

into account that evidence and the evidence that

they had been drinking on the previous day in ,

assessing Dr Treichel's evidence. What we say is

that there is nothing in His Honour's judgment

which would provide any support for that at all.

There is nothing at all to suggest that His Honour,

in turning to Dr Treichel's evidence, completely

disregarded what he had previously dealt with.

TOOHEY J: Could I put it to you this way? Is there

anything in the trial judge's judgment that

indicates a reliance or a finding that he ought not

rely upon the alcohol reading in respect of the

Wieben 27/6/91

deceased driver as some sort of guide to what Wain

might have been drinking?

MR CULLINANE:  Yes, Your Honour. In our submission at

page 3, His Honour said that it was not possible on

the evidence -

There was not sufficient evidence to justify -

any use of the reading of the deceased as a basis

for making a finding about Wain's sobriety, or lack

of it.

GAUDRON J: But that is not even really the issue, is it?

It is whether he was showing signs of impairment

before they began on the journey.

MR CULLINANE:	On the journey home, yes, Your Honour.
GAUDRON J:	And the evidence of Dr Treichel was that he was

showing signs of impairment after the accident.

MR CULLINANE: After the accident, yes. But there was

evidence which His Honour accepted, and which

Their Honours in the Full Court acknowledged was acceptable evidence, open to be accepted, that it was impossible to say that such signs were the result of alcohol rather than a blow to the brain.

His Honour accepted the evidence - - -

GAUDRON J:  And what was being put to the trial judge was

that it should be hypothesized, really, that these

signs were evident before the accident, simply

because they were present after the accident. If

that was the issue, there was no evidence as to the

signs before the accident.

MR CULLINANE:  No, Your Honour, that is right.

Their Honours, at page 35 of the record, say - this

is about - perhaps if I start at the beginning of

the first full paragraph. Their Honours referred

to Dr Callinan's evidence and Dr Treichel's

evidence, but then go on to say in the second

sentence:

Dr Treichel's evidence did not fall for evaluation in a vacuum although the trial

judge seems to have treated it as standing

alone and to have treated this aspect of the

case as turning on it.

We say, with respect, the fact that His Honour

dealt separately in turn with the various pieces of
evidence provides no basis whatsoever for the

conclusion that I have just read.

Wieben 5

The presence of the indicia of alcohol

consumption by Wain is not necessarily

surprising in the context of the findings as

to the drinking activities and the evidence

directed to that.

Furthermore, Dr Treichel's evidence ought

properly to have been considered in the

context of the use which the appellant had

argued might have been made of Burnett's blood

alcohol reading in assessing the extent to

which either potential driver would have been

apparently adversely affected by alcohol.

Put another way, the appellant's case of contributory negligence based on the driver's capacity to properly manage and control the

vehicle depended on a body of evidence which

has largely been identified in these reasons.

The case was not confined to the evidence of Dr Treichel which in any event fell for evaluation in the context of a larger body of evidence. It does not follow that

Dr Treichel's evidence compels acceptance.

There are features of it which on their face

give cause for reservation but it is

difficult to escape the conclusion that it and

the other evidence as to the apparent effect of alcohol did not receive the consideration for which the appellant contended.

TOOHEY J: But is that not really the crux of it,

Mr Cullinane? This is not a case in which the
Full Court reversed findings by the trial judge.

They have sent the matter back for reconsideration

on the footing, be it right or wrong, that the

trial judge did not give sufficient consideration

to certain evidence.

MR CULLINANE: Yes, they disturbed the finding and ordered a

new trial limited to that issue.

saying is that the judgment of the trial judge What we are

upon which the Full Court disturbed that finding.	provides no support for the criticism for the basis the criticisms which led to the Full Court taking
that course.

BRENNAN J:  Was there any evidence of how the parties

appeared before the journey commenced?

MR CULLINANE: Yes, both the plaintiff and Wain said that

neither of them were showing any signs of the

effect of alcohol. But His Honour did not accept

that and I have just referred Your Honours to the

passage.

Wieben 6 27/6/91

BRENNAN J: Is there any other evidence from anybody?

MR CULLINANE:  No, Your Honour, none at all. They had had a

night's sleep, it was common ground, and then had

commenced on the journey, which I think it - about

some 60 kilometres before the accident occurred.

TOOHEY J: Could I just ask you this question, Mr Cullinane. Having regard to the terms of the order made by the Full Court, if the matter goes back, what are the

consequences?

MR CULLINANE:  Your Honour, the question as formulated does

not seem to be determinant of any issue between the

parties.

TOOHEY J: It seems to leave unresolved the question of the

plaintiff's appreci~tion of the condition, unless

it be the case that the Full Court relied upon the

finding by the trial judge that had Wain or Burnett

been showing signs of consumption of alcohol, that

would have been apparent to the plaintiff.

MR CULLINANE:  Yes, that is right, Your Honour, but it still

leaves open the question of the reasonableness or

otherwise of his conduct in travelling as a

passenger in the vehicle.

TOOHEY J:  I am just puzzled as to why the order was

expressed in that limited way which, as you say,

does not seem to dispose of the matter.

MR CULLINANE:  I do not know, Your Honour.

BRENNAN J: It picked up a p&ssage from the judgment of

Mr Justice Moynihan, I think, but it does appear on

page 44 that when the judgment was delivered the

presiding judge, Mr Justice McPherson, said:

In my view, the Judge should have power generally to make all findings and inferences

the action. as may be necessary to give final judgment in

But that was not translated into the ultimate order.

MR CULLINANE:  Not into the order that was made,

Your Honour, no.

TOOHEY J:  And especially if it went back and was heard by

another judge. That finding of the trial judge as

to what would have been apparent to the plaintiff -

I am not sure where that stands if there is a

further hearing before another judge.

Wieben 7 27/6/91

MR CULLINANE:	Your Honour, there is no doubt the way the question is framed whether the capacity of the
driver of the motor vehicle properly to manage and
control it was impaired by the consumption of intoxicating liquor could be answered yes without
there being any manifestations of that apparent to
somebody, at least socially, as opposed to somebody
clinically testing the - - -
TOOHEY J:	I do not imagine the parties would want to go

back in any event and go solemnly through that

exercise unless something is going to come out at

the other end.

MR CULLINANE: Yes, it is certainly a very unsatisfactory

order.

TOOHEY J: Still, that does not really strike at the heart

of it.

BRENNAN J:  I do not think we need trouble you any further,

Mr Cullinane. Mr Douglas.

MR DOUGLAS:  On that last matter, Your Honours, the

Full Court did remark; at page 42 of the record, as

to the finding in respect of the plaintiff's

capacity to understand or see the condition of the

other two, at the middle of the page, where they

said:

There is moreover no occasion for being concerned about His Honour's finding to the

effect that the respondent should have

observed the indicia of the consumption of

alcohol by the driver had they been exhibited.

We do not see that as being one of the facts which

the next trial judge would be called upon to

determine.

BRENNAN J:  What form would the next trial take?

MR DOUGLAS:  Your Honour, it would be limited, as we see it,

to a question of whether or not the driver,

whichever of the two it was, was so affected by the

consumption of alcohol that his capacity to drive a

motor vehicle was impaired.

TOOHEY J: 

The difficulty about that is that the capacity of

the driver and the appreciation of the passenger
are not necessarily an equation.

MR DOUGLAS: 

No, but there is a finding of fact that

whatever the condition of the driver was the

plaintiff was capable of observing that, be he

drunk or sober.

Wieben 8 27/6/91

TOOHEY J: Observing yes, but of appreciating the

implications of it?

MR DOUGLAS:	There is no finding as to that.
BRENNAN J:	What does the next trial judge do, does he

record a finding?

MR DOUGLAS:  He would have the authority, we submit, to make

that finding, and also a finding as to the capacity

of the driver to handle a motor vehicle.

BRENNAN J: Having made whatever finding you say he can

make, what does he do then?

MR DOUGLAS:  He would then apportion liability between the

plaintiff and the defendant.

BRENNAN J: That is not remitted to him by the order of the

court.

MR DOUGLAS:  We understand it to be, Your Honour, with

respect, when you look at the remarks of the

presiding judge on the day the judgment was given.

BRENNAN J: That is not the order made though.

MR DOUGLAS:  That might be a fault of those who took out the order. It is clearly what the court intended.

BRENNAN J: Well is the issue of contributory negligence the

issue that is to be determined?

MR DOUGLAS:  Yes, that is the only issue which is alive

before the trial judge on the next occasion.

BRENNAN J:  Now on the next occasion, is it a case of

hearing and determining that issue de novo or on

the evidence that has already been adduced?

MR DOUGLAS:  De novo, as we understand it, Your Honour.

BRENNAN J:  Then we need to consider whether there was any

evidence thus far of contributory negligence.

MR DOUGLAS: Whether there is any before the judge at the

moment?

BRENNAN J: Yes.

MR DOUGLAS:  Yes.

BRENNAN J: Otherwise your client gets the advantage of

another bite at the cherry.

MR DOUGLAS: Well yes, but that cannot be helped if in fact

the reason of the Full Court is correct. What they

Wieben 9 27/6/91

said was this - I will try to put it as briefly as

I can: His Honour the trial judge was correct when

he said that it was conceded at the trial that you

cannot directly transpose the reading of one of the
alleged drivers to the other. In other words, if

Burnett was .258 you cannot say that Wain was also

.258. What you can do is, by adducing evidence of

their drinking pattern together over a long period,
over 24 hours, you can say, well, if they were
drinking drink for drink, or virtually drink for

drink, the reading of one of them is evidence of

what the reading of the other might have been, or

could have been.

The evidence at the trial was, even at levels as low as .17 or .18, and the Full Court refers to

this, the capacity of the man to drive a motor
vehicle was impaired and his condition was easily

observable to a person who was capable of observing

it.

TOOHEY J: 

Mr Douglas, is it right to say that that really

is the sole basis upon which the Full Court allowed
the appeal?

MR DOUGLAS: 

Yes, because His Honour did not make any

findings of fact with respect to those matters.

TOOHEY J: Well, those matters or perhaps that matter, the

entitlement of the defendants to rely upon

Burnett's blood reading in order to reach a

conclusion as to Wain's.

MR DOUGLAS:  Yes, that is so, and the expert evidence

surrounding that - in other words, experts were

called to say what you could expect to see in a

person with a reading of that level, and indeed

below that level, for the purpose of proving the

point.

It is only that point which goes back to

another judge, or the same judge.

BRENNAN J:  The steps in that argument are first, that they

were drinking drink for drink, or virtually so.

Was there evidence of that?

MR DOUGLAS:·· Oh yes, a lot of evidence about that.

BRENNAN J: Of their keeping pace with each other?

MR DOUGLAS:  Yes, Your Honour, from Mr Wain. Most of the

trial was directed to that issue.

BRENNAN J:  I appreciate that. I am just seeking to

discover whether there was any evidence to support

the propositions that you advance.

Wieben 10 27/6/91

The next is that, so far as sleep or

discontinuance of drinking was concerned, again the

two cases were comparable?

MR DOUGLAS:  Yes. The only difference was that His Honour

found the plaintiff went to sleep earlier than the

other two.

BRENNAN J: The third, that if the blood alcohol level of

either of them was something of the order of .258,
then with that blood alcohol level there would have

been manifest indicia of intoxication?

MR DOUGLAS:  Yes, Your Honour. In fact the evidence was to

the effect that they would be very drunk at that

level.

BRENNAN J: Well, maybe it would have been very drunk, but

the question was whether there were manifest

indicia at that level.

MR DOUGLAS:  Yes, and the evidence went further than that,

that the indicia were manifest at levels as low as

• 1 7 .

BRENNAN J:  The fourth question is whether or not those

indicia were observable by the plaintiff?

MR DOUGLAS: His Honour made a finding as to that, because

he was with them all the time - sorry, yes the
evidence was that other than falling asleep earlier

than them, he was with them all the time, except as

to taking a shower about six in the morning; one

of them took a shower, from memory, I have

forgotten the evidence about that.

BRENNAN J: Which one took the shower?

MR DOUGLAS:  I think it was Wain, but I cannot remember.

But except for a period of a few minutes they were with each other continuously since about mid-day

the day before the accident, and the accident

occurred about eight o'clock on a morning.

BRENNAN J:  And was it the evidence, the steps of which I

have just outlined to you, which the Full Court

says has not been evaluated?

MR DOUGLAS:  Yes, Your Honour. Broadly, His Honour did not

make any findings of fact as to that argument of
the defendant; that is, when you take all of those

things into consideration the driver, whomever he

was - I state that wrongly - we proved that Burnett
did have .258, but if it was Wain, we said, if Wain
was the driver, he must have had a reading similar
to that, and we are prepared to accept even .17 for

the purpose of the argument.

Wieben 11 27/6/91

GAUDRON J:  Was there not some difficulty with Burnett's

reading as to the accurancy of it?

MR DOUGLAS:  Your Honour, that may have been the point at

the trial. The difficulty was this:  it was said

by one doctor that you could not get a sample of
blood so long after death from the part of the body

where it came from.

His Honour seems to have accepted that. The

blood certainly was taken. There was no finding by

His Honour directly, other than a throwaway line which appears at page 3 of the record.

The Full Court, Your Honours, seemed to say

that His Honour's finding is that the reading was a

correct one. He accepts the reading, give or take

a little bit for fermentation of the blood, which

may have added slightly to it before it was

refrigerated. The reading, I think, Your Honour,

is accepted as being correct.

GAUDRON J:  The reading, but not necessarily an accurate

reflection of the blood alcohol content of the

deceased.

MR DOUGLAS:  What I am saying is, Your Honour, if it was not

.258 it might have been .24, something like that.

That is the tolerance we are talking about, nothing

more than that.

Your Honours, the Full Court encapsulated the

error that the trial judge fell into at page 36 in

the passage already referred to at the bottom of

the page where they-said:

This is a case where the miscarriage is

reflected in the fact that there was no

consideration of the evidence in crucial areas

in the context of the defendant's case is

apparent and hence there are no findings one

way or another in respect of potentially

relevant primary facts.

It is not a case, Your Honours, where they set aside primary findings of fact by a trial judge.

There simply were no facts which were found in

respect of the defendant's case. They are our

submissions, Your Honour.

MR CULLINANE: Your Honour, there is one matter, if I might,

in reply. Page 33, in relation to the matter

Your Honour the presiding Judge raised with my

learned friend about whether there was evidence

which could link the consumption of wine with the

deceased. Their Honours in the Full Court made it

clear that there was no evidence which would be

Wieben 12

able to do that. This appears at page 31, the

first full paragraph, about half-way down:

The trial judge found that he was unable to come to any conclusion as to how long Wain and

Burnett had continued to drink after the

respondent withdrew from that activity or as

to their respective consumptions.

That was the defendant's problem, with the onus

lying on it. Wain said he did not know whether

Burnett remained awake drinking after he went to

sleep. That, in our submission, is the problem

that the defendant - and that His Honour referred

to when he said the evidence was not sufficient to

use Burnett's reading to transpose it to Wain.

BRENNAN J: That really turns on the state of the evidence

whether there was or was not evidence of that

issue.

MR CULLINANE: Except that it was not contended that

His Honour was wrong in making that finding that he

could not relate the respective consumptions one to

the other. What was suggested was that given that

they had been together for some time the previous

day and evening he should have at least made some

use of the reading, and His Honour said he was not

prepared to do so in the absence of evidence

sufficient to make use of it on that basis.

BRENNAN J:  The Court will adjourn briefly to consider the course it shall take.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.22 AM:
BRENNAN J:	The view which I am about to express is a view

of the majority of the Court.

As it does not clearly appear that the

Full Court was in error in considering that there

was some evidence which was not evaluated by the

trial judge bearing on the issue of contributory
negligence, this is not a suitable case for the

grant of special leave.

The Court would commend to the parties a

further application, if such an application be

necessary to the Full Court, for the purpose of

Wieben 13 27/6/91

on the further hearing of this matter.

clarifying the order which was made by the

MR DOUGLAS:	I ask for costs, if the Court pleases.
BRENNAN J:	Mr Cullinane?
MR CULLINANE:	I have nothing to say, Your Honour.

BRENNAN J: Very well, Mr Douglas, with costs.

AT 11.23 AM THE MATTER WAS ADJOURNED SINE DIE

Wieben 14 27/6/91