Caution in approaching evidence in circumstances when the defendant is deceased

 Hemmings v Suncorp Metway Insurance Ltd [2011] QDC 19

I refer to my earlier posting in regard to the some procedural aspects leading up to the trial. The trial ultimately proceeded after some considerable delay, with the unusual feature of the defendant being deceased. The deceased was killed as a consequence of the collision with the plaintiff’s vehicle, for which, the plaintiff sought damages for personal injuries.

Whilst the factual finds are confined to the case, his Honour Judge Reid did address the scenario of the defendant not being in a position to give evidence, which is of interest. His Honour ultimately dismissed the plaintiff’s claim despite the defendant not being present to give evidence in person and gave judgment for the insurer.

Honour Judge Reid

[42] In the circumstances I find:

(i) The plaintiff drove her vehicle negligently allowing it to drift across the centreline such that at one stage when Mr Bray observed it it was possibly up to about half of its width, some 0.85 metres, north of the centreline and in the east-bound lane of the highway. It is not possible to know its precise position at the exact point of impact and, in particular, whether it might have continued to drift onto the incorrect side after Mr. Bray made this observation.

(ii) The damage to the deceased’s car suggested no more than about 0.3 to 0.4 of a metre of the front of that vehicle was directly impacted by the plaintiff’s vehicle.

(iii) At the time of impact it was very possible the deceased’s vehicle was no more to the right than the centre of his lane and it may have been further to the left.

(iv) It is not possible to know exactly what warning the deceased may have had of the plaintiff’s car moving into his lane and in the circumstances I make no finding that he was at fault in not avoiding the impact by swerving or moving laterally to the left or otherwise avoiding an impact.

(v) There is no satisfactory evidence that the deceased was speeding or that his doing so contributed in any way to the occurrence of the accident.

(vi) Although the deceased was driving near to the centreline of the highway as he drove from Yarraman to the scene of the accident and may have been there shortly prior to impact, there is no satisfactory evidence that he was doing so at the time of the accident itself or that his doing so contributed in any way to the occurrence of the accident.

(vii) The only effective cause of the accident was the negligent driving of the plaintiff herself.

[43] In that circumstance the plaintiff’s claim must be dismissed.

[44] It was submitted by counsel for the defendant that the proper approach to the assessment of evidence in this matter was that identified as appropriate by Mullins J in circumstances where a plaintiff who had no recollection of a subject accident was suing the Nominal Defendant as the effective insurer of an unidentified motor vehicle in Van Muyen v Nominal Defendant (Queensland) [2002] QSC 344. Her Honour said at paragraph 32 of her judgment:

“Although it is correct that in each of the authorities relied on by the defendant the witness who was giving evidence in respect of the unidentified motor vehicle was either the plaintiff or the plaintiff’s spouse, that is not the rationale for the caution in approaching the evidence. The rationale is that there was no opportunity for the court to consider evidence from the driver of the unidentified vehicle. That rationale is applicable whether a plaintiff can give evidence or not.”

[45] In this case, counsel for the defendant submitted that such an approach, that is adopting a cautious approach to the assessment of the evidence, is equally applicable with respect to a case of a deceased driver at least where that death results from the negligence of the plaintiff. In my view, there is much to be said for adopting such a submission even though there is evidence of an independent witness and police officers as to their observations of the scene post accident. Ultimately, however, I do not have to determine such a question because in my view the evidence, particularly that of the independent witness, Mr Bray, directly supports the conclusions I have drawn. Whether that is due to my adopting a “cautious” approach to the assessment of evidence may be for others to determine.

[46] Each counsel also referred me to a variety of cases involving motor vehicle accidents.[1] In my view none were directly comparable to the facts of this case, but I will reflect to two of them, and refer to another of Wardle v Fowler 2002 SASC 380.

[47] In my view March v Stramare Pty Ltd [1991] HCA 12; (1990) 171 CLR 506 may be considered authority for each of these propositions:

(i) A person may be held responsible for damage when his or her wrongful conduct (my emphasis) is one of a number of conditions sufficient to produce that damage.

(ii) That the determination of causation is to be answered by reference to common sense and experience.

(iii) That a party must, in determining how to act, have regard to the possibility that others may act carelessly or even unlawfully. A party’s obligation is to act reasonably even having regard to that possibility.

[48] In my view the evidence in this case does not support a finding that the deceased engaged in any wrongful conduct causative of the accident, even taking into account his obligation to consider the possible careless conduct of other road users. For that reason I have found the plaintiff’s claim fails.

[49] I might add that if I am wrong in my assessment, and the deceased’s own conduct in driving his motor vehicle in the manner he did constituted a breach of his obligation to other road users and in particular to the plaintiff, then in my view the plaintiff would nevertheless be liable for the overwhelming proportion of responsibility. It would in such circumstances be necessary to consider the extent to which each driver departed from the standard expected of them. It is somewhat difficult, in circumstances where I have found the deceased’s driving to have been reasonable, to consider such a question in abstract, but if it were found that he was driving too close to the centreline and did not take adequate evasive action when confronted by the plaintiff’s vehicle partially on the incorrect side of the roadway, I would have been inclined to find that the deceased’s negligence contributed only about 10% of overall responsibility for the accident. Such an apportionment is identical with the ultimate result in Wardle v Fowler (supra).

[50] In that case a truck, partially on its incorrect side of the roadway, struck the rider of a motorcycle travelling in the opposite direction. Though the motorcycle was wholly within its lane, it was near to the centreline. The trial judge, who had apportioned liability 80:20 in the motorcyclists favour, found that he had failed to keep his motorcycle as close as possible to the left hand kerb in circumstances where he knew the road where the accident happened on a bend and near to a crest was dangerous.

[51] The significant difference between that case and the subject case is that I made no similar finding as to the position of the deceased at the time of impact. In addition, there is no evidence before me as to any particular danger with the spot on the D’Aguilar Highway where this accident occurred. I use this case merely to support my assessment of apportionment of liability in the event that I am wrong about primary negligence.

[52] Counsel for the plaintiff relied on the reasons of Denning and Romer L.JJ in Baker v Market Harborough Industrial Cooperative Society Ltd & Ors (surpra). In that case, their Lordships had determined, in circumstances where there was no evidence to enable a court to draw a distinction between the conduct of two drivers both of whom were killed in the accident, that both were equally to blame. Two things can be said about that case. It was considered and distinguished by the High Court in Nesterczuk v Mortimore (surpa) (and passages of Denning LJ’s judgment were specifically disapproved). Even more importantly for present purposes, this was not a case like Nesterczuk where the competing evidence as to each driver’s conduct was equally plausible. In my view there can be no doubt in this case that the plaintiff was herself negligent and on the basis of the evidence which I accept I am not positively persuaded that the deceased was in any way causatively negligent.

[53] In the circumstances I dismiss the plaintiff’s claim and give judgment for the defendant.

Brisbane Barrister – David Cormack




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