SCHUMACHER v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE, SHELLER and COLE JJA 25 June 1996 [1996] NSWCA 468 MOTOR VEHICLE ACCIDENT — res ipsa loquitur — whether doctrine applies — whether inference of negligence should have been drawn — GIO v Fredrichberg (1968) 118 CLR 403 at 413 Sheller JA. This appeal arises from events said to have occurred on the morning of 10 January 1990. The appellant, Frederick John Schumacher, claimed to be a passenger in a motor vehicle driven by the second respondent, Stanley Charles Higgins, on the Oberon Road driving towards Bathurst. According to the accounts given by the second respondent and to some extent by the appellant, the second respondent was proposing to turn left off the Oberon Road, into or adjacent to a paddock to travel through a cocky fence and was proceeding at something between 30 and 40 kilometres an hour. A truck travelling in the opposite direction towards Oberon came round a bend and then onto its incorrect side of the road. Mr Higgins said he became aware of the other vehicle which was about 300 metres away from him and aware that it was entirely on its incorrect side of the road, about 70 to 75 metres away. He said that he took the only evasive action possible. He pulled across to the left onto the verge and ran into a culvert. In one action Mr Higgins sued the nominal defendant. In another the appellant sued the nominal defendant and Mr Higgins. These two actions were heard together by his Honour Judge Shillington. On 8 October 1992 his Honour found for the nominal defendant in both actions on the basis that he regarded the accounts of both plaintiffs, that is to say the plaintiffs in both actions, Mr Schumacher and Mr Higgins, to be unsatisfactory, and did not accept them. His Honour also dismissed Mr Schumacher's claim against Mr Higgins. This claim was based upon the application of the principle res ipsa loquitur. It is from that part of his Honour's judgment that Mr Schumacher now appeals on the single ground that his Honour erred in finding that the second respondent, Mr Higgins, was not negligent. His Honour said that it did not seem to him that the doctrine of res ipsa loquitur applied where Mr Schumacher had given an account which his Honour was not satisfied he could accept. He said: Iam simply left in the situation where I am unable to make up my mind as to what did happen and I am certainly not in a situation in which I think it proper to conclude that because of that state of mind that I should conclude that there is evidence from which I should reason that Mr Higgins was negligent. As to the reason that this vehicle got into the ditch, the circumstances of it getting into the ditch, the speed that it was travelling at and the effect it had upon the occupants is in my view so vague and unsatisfactory that I am not in a position in which I could reasonably conclude, bearing in mind the onus being on the plaintiff, on the balance of probabilities to satisfy of me of a case against the defendant Higgins, that I could find against that defendant and I therefore conclude in the case of Schumacher that I should find a verdict for the defendant .... 2 UNREPORTED JUDGMENTS Mr Rewell, who appeared for the appellant, made his point quite shortly. He submitted that his Honour's findings compelled that the inference be drawn that the second respondent was negligent. The particular findings he relied upon were that the second respondent was the driver of the vehicle when it left the road and went into a ditch, that the appellant was a passenger who suffered injury as a result and that the accident was not explained by the presence of an unidentified vehicle as the defendant, Mr Higgins, claimed. Mr Rewell submitted that his Honour failed correctly to apply the principle of res ipsa loquitur when he said that the doctrine did not apply because Mr Schumacher had given an account which he could not accept or because his Honour was left in the situation where he was unable to make up his mind what happened. Mr Rewell relied upon principles which are conveniently stated in Fleming, The Law of Torts, 8th ed at 321. The author there says 'that there isno justification whatever for depriving a plaintiff of the benefit of a general inference of negligence against the defendant, merely because he pleaded and unsuccessfully sought to substantiate specific allegations. It is senseless to put a plaintiff to an election between different methods of proof; and provided his pleadings so allow and the facts elicited at the trial do not preclude it, he may fall back on circumstantial evidence in support of a general allegation of negligence.' It was submitted that applying this principle his Honour was obliged to conclude that the vehicle left the roadway and went into the ditch as the result of Mr Higgins negligence. Mr Hislop QC, submitted there were no findings that would enable the inference to be drawn. His Honour did not believe either the appellant or the second respondent and did not accept their version of events. He referred to the decision of Government Insurance Office v Fredrichberg, (1968) 118 CLR 403 at 413, and particularly the dicta that the doctrine of res ipsa loquitur does not create a presumption of fact in favour of the plaintiff. The process may enable an inference of negligence to be drawn but does not require it to be drawn. In short it was submitted that the appellant had failed to establish circumstances sufficient to enable the inference of negligence to be drawn. Mr Hislop also relied upon the fact that his Honour appeared to have made no finding of injury in his judgment and that the judgment was replete with instances where hisHonour indicated, at the least, some suspicion about what was said to have occurred. Mr Hislop advanced some other possible causes of the accident which did not imply negligence such as treacherous conditions, avoiding hitting wildlife, mechanical failure or a sneezing fit. Mr Rewell replied to these possibilities by referring us again to what was said in Fleming at 317; The accident may admittedly be consistent with causes that do not imply negligence .... but such unavoidable causes are sufficiently unusual (and in any event more easily provable by the defendant) that they may be justly discounted as improbable. I have come to the following conclusion about this appeal. I agree that his Honour erred in the way that he approached the application of the res ipsa loquitur principle. In my opinion his findings left it open to him to draw an inference of negligence against the second respondent. It seems to me that this error means that the appeal should be allowed. However, I am not satisfied in the circumstances as his Honour found them, that he was bound to draw the inference URJ SCHUMACHER v THE NOMINAL DEFENDANT (Clarke JA) 3 of negligence or, to put it another way, that on the material before this Court, the Court must draw that inference. In the result I think there must be a new trial on liability I would propose the following orders: 1. appeal allowed;2. the judgment and orders of 8 October 1992 in matter DC 4/91 for the defendant, Stanley Charles Higgins, be set aside; 3. the matter be remitted to the District Court for a new trial of the claim by Frederick John Schumacher against Stanley Charles Higgins on liability and for the determination of damages, if any; 4. the costs of the first trial be in the discretion of the Judge hearing the new trial, and; 5. the second respondent pay the appellant's costs of this appeal but have a certificate under the Suitors Fund Act. Clarke JA. I agree. Cole JA. I also agree. Clarke JA. The orders of the Court will be as stated by Mr Justice Sheller. Orders accordingly. Counsel for the appellant: KP Rewell Solicitors for the appellant: McIntosh McPhillamy and Co Counsel for the first respondent: B Billing (excused) Counsel for the second respondent: JD Hislop QC Solicitors for the second respondent: Creagh and Creagh