GOVERNMENT INSURANCE OFFICE OF NSW v DAVID SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, SHELLER JJA and Hope AJA 24 March 1992, 24 March 1992 [1992] NSWCA 81 NEGLIGENCE — RES IPSA LOGUITUR DOCTRINE Negligence — doctrine of res ipsa loquitur — finding by trial judge that doctrine did not apply — GIO of NSW v Frederichberg (1968) 118 CLR 403 applied — inapplicability of doctrine affirmed — uncontested evidence at trial as to how accident occurred — inapplicability of doctrine in these circumstances — Held evidence did not establish negligence — appeal dismissed. ORDERS Appeal dismissed with costs. Hope AJA The plaintiff sued to recover damages for injuries which she suffered in a motor car accident which occurred at about 1.30 am on the night of 16 June 1986. The proceedings came on in the District Court before his Honour Judge Urquhart QC. His Honour found against the plaintiff on the issue of negligence and entered judgment for the defendant. The plaintiff appeals against that decision. The plaintiff at the time of the accident was a back seat passenger in a car that was being driven by a Mr Ronnie Israel in Eucalyptus Drive, Macquarie Fields. The car came to the intersection of that road with Rosewood Drive and Mr Israel drove the car to the right into Rosewood Drive. The car skidded and hit a post at or near the side of that road. The evidence concerning the circumstances of the accident was very limited and was set out in full by his Honour. The evidence was given by the plaintiff and by a Constable Slack, who gave evidence of a statement made to him by Mr Israel. Constable Slack was called for the plaintiff and the evidence as to the statement of Mr Israel was thus tendered to the Court by the plaintiff. The evidence was described by his Honour in these terms: "Tn his evidence Constable Slack was asked this question and gave this answer. Q. Would you read please what Mr Israel said to you in relation to the accident? A. Mr Israel said to me, 'I was going home at about 1.30 am and I made a right turn from Eucalyptus into Rosewood Drive. I was going about 20 kilometres an hour and the road was wet and slippery and the car just spun out and hit a bus stop post.' Constable Slack agreed that the particular intersection was a T-intersection and that the two roads were sealed bitumen roads of normal width. The plaintiff, in the course of her evidence in chief, was asked the following questions, to which she gave the following answers. Q. I think the situation was that the vehicle in which you were travelling made a right-hand turn into Rosewood Drive, is that correct? A. Yes. Q. And as it did so, it struck a fixed pole on the side of the road? A. Yes. Q. Do you actually remember the accident as such? A. Yes. I don't remember because it was dark and it was raining. 2 UNREPORTED JUDGMENTS Later she was asked these questions and gave these answers: Q. Before the impact itself, what happened to the car? A. To me, because it was raining and the car skidded. Q. Are you able to say whether the car was travelling quickly or slowly just before the accident? A. I don't know. How can I say Yes or No because to me it was normal. Q. Were you paying any particular attention to the driving just before the accident? A. No." The case was argued for the plaintiff at the hearing, and indeed in this Court, on the basis that it was a res ipsa loquitur case. It was put that there was evidence upon which a tribunal of fact was entitled to infer that the accident happened by reason of the negligence of Mr Israel. Mr Israel was not called and there was no evidence to the contrary and, accordingly, the tribunal of fact was bound to find negligence in favour of the plaintiff. In my opinion, whether the case be argued on the basis of the application of the res ipsa loquitur doctrine or otherwise, the appeal cannot succeed. The most recent decision of the High Court on the doctrine of res ipsa loquitur is Government Insurance Office of New South Wales v Frederichberg (1968) 118 CLR 403. At 413-414 Barwick CJ set out the principles of what he called the "so-called" doctrine. He said, first of all, that the doctrine was: "no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself wherein the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant." He put that proposition alternatively in a form appropriate to a jury trial as being one: "where, in the opinion of the Judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person." The second proposition was: "that a case in which this can properly be said should be allowed to go to the jury whether or not there is evidence of specific acts or occurrences which could be found to be negligent but that no presumption of any kind in favour of the plaintiff thereby arises. That the occurrence affords evidence of negligence does not merely alter the onus which rests on the plaintiff to establish his case on the probabilities to the satisfaction of the jury, but does not give the plaintiff any entrenched or preferred position in relation to the decision by the jury of that question." That principle would, of course, be applicable likewise, appropriately adapted, to the decision of a judge. His Honour then went on to make this statement which is particularly relevant in the present case: "I quite realise that it may be attractive to the mind to conclude that, because the jury is allowed to draw an inference of negligence from the occurrence for the reason that they are at liberty to think that it was not likely to occur without a want of care on the part of the defendant, the inference of negligence must be drawn by them if the ground upon which it may be drawn is not displaced by other evidence explaining the occurrence. That line of thought seems to me to have found favour with English courts and to have resulted in the creation by the decisions of those courts of a presumption of fact in favour of the plaintiff in such circumstances. But this court has been unable to accept such reasoning and the law is otherwise in Australia." URJ GOVERNMENT INSURANCE OFFICE OF NSW v DAVID (Hope AJA) 3 The learned trial Judge quoted part of the judgment of Barwick CJ to which I have referred and went on to say this: "In my view, having regard to the evidence as to the circumstances of the collision with the post to which I have referred, I am not able to draw the inference of negligence contended for by Mr Feller of counsel for the plaintiff. In my view, the circumstances of that collision, as to which there is evidence, are not such that the ordinary affairs of mankind indicate that the collision was not likely to have occurred without lack of care by Mr Israel towards the plaintiff." It has been put for the plaintiff by her counsel, Mr Anderson, who has strongly argued her case, that the plaintiff, having proved that the car driven by Mr Israel went off the road and struck a post thereby causing injuries to the plaintiff, the learned trial judge should have found that Mr Israel had been guilty of a lack of due care for the plaintiff in driving as he did. If the Court was simply dealing with the conclusion of the learned trial judge and considering whether there was any ground to justify setting it aside, I would find no basis for doing so. It was open to him to conclude that the driving of a vehicle at a speed of twenty kilometres per hour around a ninety-degree corner on a wet and slippery road were not circumstances upon which it should be said that in the ordinary experience of mankind the accident was not likely to have occurred without negligence on the part of Mr Israel. However, this is not a case where the Court is constrained in reviewing the learned Judge's decision of fact by the application of principles such as those enunciated in Abalos v Australian Postal Commission (1990) 171 CLR 167. Dealing then with the circumstances established by the evidence, I come to the same conclusion as the learned trial Judge did in relation to the application of the doctrine of res ipsa loquitur. It has been put at some length for the plaintiff that the evidence of Mr Israel's statement as to speed - twenty kilometres an hour - the car spinning out and hitting the bus stop post, and the road being wet and slippery, did not establish those facts and, in particular, did not establish the speed at which the vehicle was travelling. In my opinion the evidence tendered through Constable Slack, and which was tendered by the plaintiff, was evidence of speed and indeed was the only evidence of the speed of the car at the time of the accident and the learned judge was entitled to act upon it. It has also been put that the failure of the defendant to call Mr Israel as a witness was a circumstance which should have led the learned trial judge to have drawn an inference of negligence on the part of Mr Israel, Jones v Dunkell (1959) 101 CLR 398. In my opinion, in the circumstances of this case, that failure does not assist the plaintiff. Perhaps the correct view is that this is not a case for the application of the doctrine of res ipsa loquitur for there was evidence as to how the accident did, in fact, occur. That appeared from the evidence of the plaintiff and particularly from the evidence of Constable Slack as to what Mr Israel said to him. Mr Israel described the accident as one in which he made the turn when he was going at about twenty kilometres per hour, the road was wet and slippery, and the car swung out and hit the bus stop. In my opinion those circumstances do not establish evidence on the part of Mr Israel. Indeed, they establish that there was no negligence on his part. I would, accordingly, dismiss the appeal with costs. Mahoney JA: I agree with what has been said by Mr Justice Hope. In deference to Mr Anderson's earnest arguments, there is one matter I wish to comment upon. 4 UNREPORTED JUDGMENTS I agree with what Mr Justice Hope has said as to the effect of the admission made by Mr Israel being tendered in evidence by the plaintiff. I am myself inclined to the view that that statement tendered by the plaintiff constituted evidence of the facts stated in it, in particular of the fact that the defendant was driving at twenty kilometres an hour and that the road was wet and slippery. That appears to be the proper inference from what took place at the trial and the Judge, I think, in his reference to the evidence, appeared to assume this to be so. Parties are entitled to conduct matters in such a way that evidence of a statement is evidence not merely of the fact of the statement but also of the truth of what was said. However that be, the statement having been tendered in the way it was, I think the Court is entitled to take from it, in accordance with the principle in Walker v Walker (1937) 57 CLR 630 and other cases, that the facts so proved were evidence of the truth of what was said, at least some evidence of it. However that be, in the end the learned Judge took into account not merely what was said by Mr Israel, but also the statement by the plaintiff which he cited in evidence. In all the circumstances, he concluded he was not satisfied that there was any inference of negligence to be drawn. I agree with his Honour's conclusion in that regard and with what has been said by Mr Justice Hope. SHELLER JA: I agree, for the reasons given in the judgments which have just been given, that the appeal should be dismissed with costs. Mahoney JA I agree, for the reasons given in the judgments which have just beengiven, that the appeal should be dismissed with costs. Mahoney JA The order of the Court is, therefore, that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J Anderson Solicitors for the appellant: Lacey and Co Counsel for the respondent: MB Williams Solicitors for the respondent: Government Insurance Office