NSW INSURANCE MINISTERIAL CORPORATION v JONES; NSW INSURANCE MINISTERIAL CORPORATION v MAZEPA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and HANDLEY JJA 22 March 1994, 22 March 1994 NEGLIGENCE — motor vehicle accident — head on collision — insured driver suffered rupture of aorta and immediately lost consciousness before collision — deceased insured driver's wife not called to give evidence at trial — whether it was possible and proper to draw an adverse inference against the respondent — held (1) prima facie the movement of a vehicle from its correct to incorrect side of the road constitutes negligence in accordance with the maxim res ipsa loquitur, unless explained by evidence to the contrary; (2) in circumstances where there are competing inferences to be drawn from the evidence, it is open to the court to draw an adverse inference against a defendant where a witness who may have aided the defendant's case was not called Jones v Dunkel (1959) 101 CLR 298; (3) the unexplained failure to call the deceased driver's wife enabled the trial judge to draw an adverse inference against the defendant that the rupture of the aorta occurred after a dangerous move by the vehicle onto the incorrect side of the road and accordingly supported the finding of liability: Jones y Dunkel (1959) 101 CLR 298 considered and applied. ORDER Appeal dismissed with costs. Handley JA This is an appeal by the defendant, formerly the GIO, from judgments entered for two plaintiffs by his Honour Judge Dent QC in the District Court on 14 April 1993. Proceedings arose out of a head on collision which occurred on the Pacific Highway at Sandcrox, near Port Macquarie, at 4.30 in the morning on 27 December 1986. The plaintiffs were in a motor vehicle being driven south by the plaintiff, Mr Mazepa. The defendant's insured, Mr Simon Outijans, was the driver of the vehicle travelling north. At some stage prior to the collision, on the medical evidence and the findings of the trial Judge, Mr Outijans lost consciousness and indeed may have died. His wife was a passenger in the same vehicle. Mr Mazepa gave evidence that he was driving south and noticed a vehicle, now known to be that driven by Mr Outijans, approaching on its correct side of the road. When the two vehicles were close, Mr Outijans' vehicle suddenly veered on to the incorrect side of the road, Mr Mazepa was confronted with glaring headlights right in front of him and the head on collision occurred. The trial Judge was satisfied that Mr Outijans died from a rupture of the aorta which occurred shortly before the accident. He found that the rupture did not occur as a result of the accident but occurred, for some reason, shortly before. While Dr David was positive that the rupture of the aorta occurred prior to the accident, he was unable to say how long before it had occurred and he was unable to say whether it occurred before the vehicle veered on to its incorrect side of the road or afterwards. There was evidence from Dr David that while a diseased aorta, in the condition that he found in the post mortem examination, could spontaneously rupture, such an event could also be precipitated by the stress or shock of a sudden emergency. 2 UNREPORTED JUDGMENTS There is no doubt that the movement of the deceased's motor vehicle from its correct side of the highway on to its incorrect side, in the face of approaching traffic close to hand, provides prima facie evidence of negligence in accordance with the commonsense doctrine enshrined in the Latin words res ipsa loquitur - meaning in English that the fact speaks for itself. Proof of such an event, unless explained, is sufficient to discharge the onus of proof on the plaintiffs in the present case. The explanation offered in the defendant's case is that the deceased's aorta ruptured prior to the collision causing an immediate loss of consciousness. This is the explanation, consistent with the absence of negligence, offered for the movement of the vehicle on to its incorrect side of the road. If the defendant had established that the rupture of the aorta had occurred before the movement to the incorrect side of the road, that would have explained how that event had occurred without negligence. However the defendant's evidence did not establish the cause of the accident. This remained a matter of speculation. It is possible that the deceased fell asleep and that the vehicle then veered on to its incorrect side of the road. When he woke up a few seconds before the collision the shock of discovering another car immediately in front of him may have brought on the rupture. This view of the facts would not exclude negligence on the part of the deceased because falling asleep at the wheel is evidence of negligence. There is some plausibility in the second explanation in that the accident occurred at 4.30 in the morning on 27 December near Port Macquarie. There is no evidence as to where the deceased and his wife normally lived at that time and no evidence of how long the deceased had been driving before the accident. Nevertheless, the hour at which the accident occurred lends a degree of probability to the alternative inference that the immediate cause of the accident was that the deceased fell asleep at the wheel. The learned trial Judge was well aware of the difficulties created by the competing inferences in the state in which the evidence was left. In these circumstances his Honour held that he could draw a Jones v Dunkel inference against the defendant, namely, that the evidence of the widow, would not have assisted the defendant's case. The widow may have been asleep at the time and could give no relevant evidence whatever. The evidence of Dr David indicates that his post mortem examination was conducted for the purposes of a coronial inquiry into death of the deceased and, in these circumstances, it is likely that the police assisting the Coroner obtained a statement from the widow which would have indicated whether or not she was asleep at the time of the accident. In my view it is reasonable to infer that had the widow been asleep at that time this fact could have been established without undue difficulty or expense and this, of course, would have destroyed the basis for any possible Jones v Dunkel inference against the defendant. The Court, in a sense, knows from the unsuccessful tender by the plaintiff of a statement of claim issued by the widow against the Government Insurance Office that she herself was the plaintiff in proceedings against it. However, that fact was never proved and must be put out of consideration. Again, if the Government Insurance Office wished to establish that the widow was potentially WAR INSURANCE MINISTERIAL CORPORATION v JONES; NSW INSURANCE MINISTERIAL CORPORATION v MAZEPA (Mahoney JA) adverse to its interests and that no inference should therefore be drawn the existence of that claim and its nature could readily have been established. This was not done. If the Government Insurance Office had established that the widow had interests adverse to it, because she was a plaintiff in proceedings against it this would have laid the basis for a Jones v Dunkel inference against the plaintiffs. However, as I have said, the existence and nature of any adverse interest in the widow was not established and the Court must put out of its mind the unsuccessful tender by counsel for the plaintiffs of her statement of claim. In these circumstances, it seems to me that the Court is entitled to draw a Jones v Dunkel inference against the defendant. If the true situation was that the widow was awake and observed the deceased slump over the wheel of the car and then the car veered over to its incorrect side of the road, coming into collision with the car proceeding in the opposite direction driven by Mr Mazepa, then one would reasonably expect a defendant, exercising any degree of diligence, would have proved those facts. The unexplained failure to call the widow in the circumstances I have outlined strengthens the inference already open and available, that the order of events was otherwise and that the rupture did not provoke the dangerous move of the vehicle but followed that move. In these circumstances it seems to me that the defendant has failed to establish a possible explanation for the collision consistent with the absence of negligence. The inference is left unexplained and supports the finding on liability by the trial Judge. I would therefore propose that the appeal should be dismissed with costs. Mahoney JA I agree. Mr Petty, as he usually does, has gone to the heart of the problem and has isolated the two main issues for decision. In relation to the first of them, the issue of negligence considered apart from the inference in Jones v Dunkel, I agree with what has been said by Mr Justice Handley. The decision must, in the end, be based upon all of the evidence. The vehicle for which the defendant is responsible came on to the wrong side of the road in circumstances which, prima facie, might suggest negligence but the Court must decide what was the probable reason for it doing so. There were, as Mr Justice Handley has suggested, a number of possible reasons why the car did what it did: the driver may have fallen asleep; he may have been momentarily inadvertent; he may have panicked or had an emotional upset by virtue of the other vehicle coming towards him with lights on at that time of the morning, or he may have gone to the other side of the road because he had had a heart attack of the kind that was described. In relation to the last mentioned possibility, in my opinion the evidence left the matter in such a state that I do not feel able to judge whether the heart attack caused him to go to the other side of the road or, whether, having gone to the other side of the road, the stress of what he then saw caused the heart attack. (I put the matter summarily and, no doubt, with less than full accuracy). I would not be satisfied, on the evidence as it was left at the trial, that it was more probable than not that the heart attack occurred before he went to the other side of the road rather than the reverse. I think that that, as a possible explanation, is left in that state. But other possible explanations, or the more probable ones of them, in my opinion, provide some basis for a finding of probability that there was negligence. I think that, for example, if he fell asleep the likelihood is - but, of course by no means a certainty - that he was taking less than proper care with his 4 UNREPORTED JUDGMENTS driving. The other possible reasons, when analysed, would I think lead to a similar conclusion. In the circumstances, therefore, from the evidence considered as a whole, I would infer a probability of negligence. The second issue that Mr Petty dealt with was the Jones v Dunkel inference. This raised an important question at the trial because, subject to what I shall say, the only witness who could have spoken as to the circumstances of the accident was the widow of the deceased driver; her evidence, therefore, was vital. It is probable, at least an inference may be drawn to that effect, that the defendant would have interviewed the widow and sought to obtain evidence from her. I appreciate the significance of her having a claim against it as well as the other driver but the evidence seems to be such as to warrant the inference that the insurer would have had knowledge of the kind of evidence that she was apt to give. That I find, on the balance of probabilities. That being so, and her evidence being in the circumstances vital, one would have expected that she would be called. I do not think, in the sense to which reference has been made in the cases, the plaintiffs had, as it has been described, the same access to that witness or would, on the evidence, know with the same degree of knowledge what she was apt to say or do if called by them to give evidence. In that sense I think she was a witness apt to be called by the insurer than by the other party. The nature of the Jones v Dunkel inference has been considered, as Mr Petty has said, several times by this Court in recent cases, eg, Fabre v Arenales (1992) 27 NSWLR 437 at 447 to 450. I think the sensible inference from the facts would, prima facie, be that, she not having been called, the insurer knew that the evidence she would give would not help it. I am conscious of the possibility that she may have been asleep and that, therefore, she could not g*e evidence at all. This is to be taken into account in any assessment of the appropriateness of the Jones v Dunkel inference. But, again, nothing was done to suggest this was so: she was not called to say so. In the circumstances I think it is more likely than not that, had she been called, she could have said something about it. It has not been in any way established that because, for example, she was asleep, she was unable to say what happened. The inferences to be drawn are, of course, tenuous. But, doing the best one can in the circumstances and in accordance with the decisions of the High Court in this regard, I would conclude as Mr Justice Handley has done, that the appeal should be dismissed. Meagher JA I agree with both my brethren and do not wish to add anything. MAHONEY JA: The order of the Court will, therefore, be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: GR PETTY Instructed by: GM MEADOWS Counsel for the Respondent: LM MORRIS QC/DR CAMPBELL Instructed by: VANDERVORDS