NSW INSURANCE MINISTERIAL CORP v WEBSTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA, ABADEE and SANTOW AJJA 14 November 1996, 5 February 1997 [1997] NSWCA 222 Motor vehicle accident — Negligence — Respondent's version of accident rejected — Vehicle in which respondent passenger leaves road after finding of tyre blow out immediately before doing so — Onus on appellant to establish significance of blow out — Onus not discharged — Inference of negligence available to be drawn — Res ipsa loquitur. Clarke JA I have had the advantage of reading in draft the judgment of Abadee AJA. I regret that I am unable to agree with it and I will proffer my own reasons for upholding the judgment under appeal. Because, however, the facts are examined in detail by Abadee AJA I will restrict my examination to those facts which I regard as important to my course of reasoning. The respondent was injured on 10 April 1987 while riding as a passenger in a vehicle, driven by the man who is now her husband and who was insured by the defendant, which left the left hand side of the Bruce Highway and came to rest in a ditch. Prior to the accident the vehicle had been proceeding in a northerly direction from Airlie Beach towards Cairns. The respondent's version of the accident was that the vehicle moved to the right hand side of the road in order to overtake another car only to observe a truck coming towards them from the opposite direction. She feared there would be a head-on collision but at that moment the driver swerved their car violently to the left cutting in front of the car being overtaken and then went off the roadway on the left hand side. This version of the accident was supported by the evidence of Constable McDonald, who was called by the appellant and who attended at the scene at about 3.30pm. He said that he recorded the path of the vehicle immediately before it left the road in a plan which indicated that the vehicle first travelled from its correct side of the road. It then returned to its correct side and after reaching that side it began to skid, leaving skid marks which commenced towards the left hand side of the road. However, there was other evidence which was inconsistent with the respondent's version. This was in the form of statements which she made to the police officer while in hospital and in histories given to doctors in which she did not mention the overtaking. When his Honour came to consider whether the respondent's version should be accepted, he omitted to refer, for reasons which are obscure to me, to that part of the police officer's evidence to which I have referred. He found that the respondent's version was unacceptable in the light of the histories I have mentioned. What his Honour said was as follows: "... Lam not satisfied to the civil standard of proof that the accident took place as the plaintiff now claims it did; and in the light of all the evidence I consider it more likely that what happened was that as the driver was proceeding along the road not overtaking anyone, there was a blow-out of the rear left hand tyre which 2 UNREPORTED JUDGMENTS caused the vehicle to drag to the left and the driver allowed the vehicle to go further to the left off the road and into the ditch or creek bed." I will refer in a moment to the blow-out but before doing that I wish to reiterate that his Honour's finding as to the probable course of events was inconsistent not only with the respondent's version but also the police officer's plan. This inconsistency creates some difficulty in the determination of the appeal insofar as it is not clear to me whether his Honour rejected that portion of the police officer's evidence or whether he simply declined to consider it on some ground. In either event, as it seems to me, it is not open to this Court to act upon the basis that that evidence was accepted by his Honour as evidencing the course of travel of the vehicle immediately before the accident. Indeed his Honour's findings as to the probabilities make it quite plain that his Honour did not accept that the vehicle travelled along the path noted by the police officer in his notebook. His Honour then went on to say: "Whether he deliberately drove it to the left to avoid a guidepost, I am unable to say as on this point there is no sworn evidence but only the unsworn statement by the plaintiff to the police the following day. The vehicle was probably travelling at about 100 kilometres an hour and there is no evidence that this was an unreasonable speed on that stretch of road or that the driver should have anticipated a blow-out. However, even with a blow-out I would have expected a reasonably competent driver to make reasonable efforts, and with reasonable prospects of success, to keep the vehicle on the roadway whist it slowed down." It is this passage which is challenged by the appellant. It submits that there was no evidence upon which the trial judge could conclude that a reasonably competent driver would have had reasonable prospects of success in keeping the vehicle on the roadway whilst it slowed down. It also contended that later statements by his Honour to the effect that it was possible that the driver was not paying attention at the time he suffered the blow-out or perhaps was travelling at a faster speed than his Honour had found indicated faulty judicial reasoning. While these later statements may be useful in determining whether his Honour did err the first question which confronts the court is whether in the circumstances it was open to his Honour to conclude as a tribunal of fact that more probably than not a driver exercising reasonable prudence would have managed to keep the vehicle on the road after the blow-out to the left rear tyre. Before addressing that question I should return to the evidence of Constable McDonald. He said that when he interviewed the respondent at Townsville Hospital she said: "Well, we were just driving along and I think we got a blow-out and Murray just pulled the steering wheel to the left so that we didn't hit a post as we went skidding off the road." When asked what factor she thought caused the accident she replied: "Well I remember that just before the accident I heard a large bang and then the sound of something slapping the inside of the car." The constable said that when he visited the scene the vehicle was extensively damaged and lying on the northern side of a drain which was approximately 4-5 feet deep with graded sides. On 14 April Constable McDonald had a closer look at the vehicle and noticed that the rear left hand tyre was "deflated of air and the tread was hanging loose except for a small area, similar to that of a tyre having a blow-out". Constable McDonald's evidence was not, however, restricted to his observations at the scene or to the statements made to him by the respondent and URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Clarke JA) 3 her husband (whose statement threw no light on the accident) but in his evidence-in-chief he was asked a series of questions about his experience when a Hilux vehicle that he was driving suffered a blow-out in the rear left hand tyre. The evidence, which was objected to but which was allowed as evidence of what had actually happened to the Constable, took the following course: "Q. It caused -? A. It caused my vehicle to go to the left hand side. Q. What speed were you travelling at the time of this blow out? A. Approximately 100 kilometres per hour. Q. What type of vehicle were you driving at that time? A. Toyota Hilux. Q. What happened to the vehicle in the course of that event? A. My vehicle went to the left hand side and went off the side of the road where I was able to stop. Q. Were you able to control the vehicle, that is prevent it going to the left, what did you do if anything? A. You allow the vehicle to - OBJECTION. HIS HONOUR: Q. No, what did you do then? A. I allowed the vehicle to go in that direction. McDONALD: Q. Why did you do that? A. Because I didn't want to resist against the pull of the vehicle. Q. Why not? A. Because it would cause the vehicle to lose control. Q. When you used the expression 'resist against the pull of the vehicle' what did you mean by that? A. That vehicle has a sensation of being pulled on that side. I could feel it slowing me down and it was like a dragging feeling on that side of the vehicle. Q. What did you mean by 'resist against the pull of it'? A. It felt like the vehicle was being - the thing was being pulled around to the left and I had been instructed not to pull it to the right as it would cause the vehicle to slip or spin around. CROSS-EXAMINATION WHEELAHAN..... Q. On the occasion the left rear tyre on the vehicle you were driving deflated, you drove it off the roadway and stopped, correct? A. No. Q. Did you crash? A. No. Q. You were able to bring it to a halt without sustaining injury to yourself without sustaining injury? A. Yes." This evidence was designed, no doubt, to show that a vehicle might tend to veer to the left if the rear left hand tyre blows out. There was, however, no expert evidence called as to the manner in which a motor car, as opposed to a Hilux, behaves when a blow-out takes place in its left hand rear tyre at a time when it is travelling at 100 kilometres per hour in a straight direction along a bitumen carriageway. The only evidence on this issue was given by Constable McDonald. His Honour was therefore faced with a situation in which the vehicle driven by the respondent's husband left the left-hand side of the road having, on his Honour's finding, had a blow-out immediately before it did so. The question whether the respondent had established that she suffered her injuries as a result of the negligence of the driver of the vehicle depended essentially upon the inferences drawn by his Honour from those facts which he accepted. It was, for instance, open to him to draw the inference that the existence of the blow-out negated negligence. Equally it was open to him in the state of the evidence to draw the inference that the vehicle would, more probably than not, not have left the road in the absence of negligence. In my opinion it cannot be said that he was 4 UNREPORTED JUDGMENTS in error in drawing an inference favourable to the respondent. When one has regard to the only evidence given on the subject of the behaviour of motor vehicles when a blow-out occurs to a left hand rear tyre that inference, as it seems to me, became the more probable one to draw. I say this despite my doubts as to the admissibility or usefulness of the evidence because it was led by the appellant and, although objected to at the time was not the subject of challenge on the appeal. In these circumstances I am not satisfied that his Honour made any error in his determination. That is enough to resolve the appeal but, as this is a re-hearing under s75A of the Supreme Court Act 1970 it is appropriate that I indicate the reasons why I would myself reach the same conclusion as his Honour. The applicable principles were laid down in Warren v Coombs (1979) 142 CLR 531, at 551 which instructs that: "The established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it." In the present circumstances the first task is to determine what primary facts were found by his Honour or which, not having been found, were undisputed. Those facts are, in the light of his Honour's rejection of the respondent's evidence, extremely few. It is not in doubt that the vehicle was being driven north along the highway before the accident, probably at about 100 kilometres per hour, and that it suddenly diverged to the left, leaving the road and ending up in a ditch. Furthermore, his Honour accepted the evidence given by Constable McDonald of the condition of the left hand tyre. The final finding of primary fact was that that tyre blew out before the vehicle left the road. In these circumstances all that is known as to the occurrence is that the vehicle suffered a blow-out in the near left hand tyre while being driven along the highway at 100 kilometres per hour and diverged to the left, ending in a ditch. The issue which confronted his Honour, and which confronts this Court, rests on the inferences to be drawn from those few facts and this Court is in as good a position as his Honour to draw those inferences. In substance the case is one to which the principle of law which is encompassed in the Latin expression 'res ipsa loquitur' applies. That principle, which was authoritatively discussed by Barwick CJ in a number of cases, including Haslbauer v Nominal Defendant (1967) 117 CLR 448 esp at 452-453, enables a tribunal of fact to draw an inference of negligence where in the ordinary course of human affairs the occurrence which has been proved is unlikely to have occurred without want of care on the part of a person in the situation of a defendant. (In Government Insurance Office of NSW v Best (1993) ATR 81-210, I discussed the principle in the context of a case in which the trial judge had examined a number of hypotheses and I would adopt, for present purposes, what I there said.) At the close of the respondent's case, and on the assumption that his Honour found her version of the accident unacceptable, his Honour could, if he had been so minded and no evidence had been led by the appellant, have drawn an inference that the appellant had been negligent. He was not, however, bound to draw that inference. URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Clarke JA) 5 At that stage the appellant had an option. It could either have led no evidence or it could have offered evidence to counter the suggestion of negligence. In the present case the appellant led the evidence of Constable McDonald to demonstrate that the tyre had blown out. His Honour accepted that evidence and so the question which remains is whether the inference of negligence should be drawn in the light of the tyre blow-out. I should say at once that a blow-out in the left hand tyre does not present to me as a Cast iron answer to the respondent's case. At least not in the absence of expert evidence explaining what effect such an event would have on the driver's ability to control the vehicle. I say this because it could not be said that the manner of behaviour of vehicles in the event of a rear tyre blow out is a matter of ordinary common knowledge. It is not a matter of which the court could take judicial notice. Common sense would indicate that the loss of an inflated tyre in a rear left wheel would cause the rim to make contact with the road surface with the consequence that the vehicle would not travel with its normal smoothness. It may also be that there would be some drag effect on the left hand side and, in the light of Constable McDonald's evidence, that that effect would cause some veering to the left. But that is as far as a tribunal could go, in my opinion, in the absence of expert evidence. It is not open to the court, uninstructed by expert evidence, to conclude that upon the blow-out a driver would immediately lose control of the vehicle (Constable McDonald's evidence would suggest to the contrary). Nor is it open to conclude that the vehicle would veer sharply to the left or that a reasonably prudent driver would be unable to maintain the vehicle on the road surface or the gravel shoulders. To hold otherwise would involve acting on speculation. The appellant submits that, nonetheless, once it is accepted that the tyre blew out it is no longer open to the court to infer that the driver was negligent. Alternatively that that inference should not be drawn. The difficulty I find with the submission is that the appellant established one single fact of unknown significance. To put it another way, it provided a partial explanation for the course of travel of the vehicle. In order to give that explanation practical meaning in the circumstances of the case it was necessary, in my opinion, to go further and establish the significance of the blow-out. In this respect the present case is to be distinguished from cases in which a steering failure has caused a vehicle to leave the road (see eg Piening v Wanless (1968) 117 CLIR 498 at 506-507). Here it was neither established nor common ground that the blow-out would have caused the driver to lose control, or the vehicle to leave the road, and as I have sought to point out, the evidence was insufficient to enable either of those inferences to be drawn or, at least, to require that they be drawn. Of course, the appellant had it in its power to call evidence which may have given greater significance to the blow out. It could, for instance, have called an expert. It could have called the driver. The appellant's first response to those suggestions was that the onus remained on the respondent. So it did but the absence of that evidence simply meant that an event of unknown significance occurred prior to the vehicle leaving the road. Its second response was that, as his Honour said, no adverse inference should be drawn against the appellant in the light of the driver's relationship with the respondent (see Ghazal v GIO of NSW (1992) 29 NSWLR 336 at 343). Putting to one side the possibility of drawing an inference that an expert witness would not have assisted the appellant's case, I would accept that his Honour was correct 6 UNREPORTED JUDGMENTS not to draw an inference adverse to the appellant from its declining to call the driver. But having said that the position remains that the significance of the blow-out remained unexplained in the evidence. Notwithstanding, the appellant argued that the introduction of the blow-out factor left the evidence in a state where the proven facts were as consistent with a lack of negligence as they were with negligence and that, consistently with the authorities, the respondent should lose. I do not agree. The vehicle was driven off the road and, while a blow-out occurred to a rear tyre, it seems to me that the inference which I would have drawn in the absence of the blow-out should still be drawn. My reason for this conclusion is that there is nothing about the occurrence of a left hand rear tyre blow-out which indicates to me that a reasonably prudent driver should not have been able to retain control of the vehicle on the road. Accordingly, I am of opinion that the appeal on liability should be dismissed. Before leaving this issue I should express my disagreement with the action of the trial judge in drawing an inference adverse to the respondent because she declined to call the driver of the car. While I can readily accept that it was not appropriate to draw an inference adverse to the appellant from its failure to call the driver I can see no proper basis upon which such an inference could be drawn against the respondent. I know of no authority which suggests that, where a plaintiff marries the driver said to be at fault, the failure to call the allegedly negligent driver should be regarded as an adverse aspect of the plaintiff's case. In my opinion, it is contrary to principle to draw such an inference. The appellant also challenged the award of interest and, in this respect, the respondent concedes that his Honour erred. Accordingly, the appeal should be allowed to the extent necessary to accommodate the erroneous assessment. I would propose the following orders: (1) Appeal allowed; (2) The judgment of Dunford J should be set aside, except as to costs, and in lieu there should be judgment for the respondent for $405,282.00 to date from 6 May 1994; (3) The appellant should pay the respondent's costs of the appeal. Abadee AJA The essential questions that falls for resolution are first, whether it was open to the trial judge to find that the driver of the vehicle in which the respondent sustained injury was negligent in failing to attempt to keep his motor vehicle on the roadway after there had been a finding that there had been blow out of the rear, left hand tyre of the vehicle, and second, whether that negligence caused the vehicle to leave the road and stop in a drain or ditch. A further question arises as to whether his Honour was in error in his calculation of interest on the past economic loss component of the judgment of $440,034.00 he entered in favour of the respondent. It is common ground that there was such an error so that if the appellant's appeal on liability is dismissed, then the damages appeal should be allowed to reflect agreement that this interest component should be adjusted, and that judgment for $405,282.00 be entered in lieu of the original judgment. The case is a somewhat unusual one. The respondent claimed that she suffered injuries, primarily involving a fractured thoracic spine, in a motor vehicle accident on 10 April 1987 when her father's motor vehicle, a Ford Cortina, in which she was a passenger, and being driven by a Mr Simpson (who had become her husband by the date of the trial) and insured by the appellant, left the road and URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Abadee AJA) 7 came to rest in a ditch. The accident was said to have happened about 30 kilometres north of Townsville, Queensland on the Bruce Highway. The respondent pleaded in her statement of claim (19 October 1989) that the accident occurred when the vehicle was proceeding in a northerly direction along the highway when, whilst attempting an overtaking manoeuvre, Mr Simpson swerved to avoid an oncoming truck and as a consequence lost control of the vehicle, causing it to leave the road and hit a number of "obstructions". A defence filed on behalf of the appellant put in issue whether the accident was caused by the negligence of the driver, Simpson. It also specifically pleaded that the occurrence was caused by a mechanical defect not known to or discoverable by the "appellant". It is common ground that the relevant mechanical defect was a "blow out" of the rear, left hand tyre of Mr Simpson's Ford Cortina sedan (which was owned by the respondent's father). The trial judge found that there had been a blow out that preceded the vehicle leaving the road. This finding was not one challenged on appeal. Indeed, no notice of contention was filed on behalf of the respondent challenging any of the findings of fact made by his Honour, or suggesting that he should have found negligence upon any alternative basis. No case was pleaded or advanced at the trial by the respondent that the blow out of the tyre was due to negligent inspection or maintenance of it by Mr Simpson, or by the vehicle owner. Further, the trial judge held that there was no evidence that the driver should have anticipated a blow out. Having found that there had been a blow out of the rear left hand tyre of Mr Simpson's vehicle, his Honour nevertheless, found that Mr Simpson was "negligent in failing to attempt to keep the vehicle on the roadway". It was this found negligence which is the subject of challenge on this appeal. The trial which took place more than seven years after the accident was one associated with perhaps some unusual features. At the trial the respondent put her case on the primary basis that the driver, Mr Simpson was negligent in the overtaking manoeuvre. She was the only witness to give evidence on the issue of liability. The appellant denied any driver negligence and claimed that the accident was caused by a "blow out". In her evidence the respondent denied that the vehicle had been the subject of any tyre blow out, claiming that the accident occurred during an overtaking manoeuvre. She gave evidence inconsistent with the version given by her to a Constable McDonald, the policeman who investigated the accident. The respondent tendered in her case a statement made by Mr Simpson (10 September 1987). That statement of itself provided no evidentiary support for the primary case that the accident had occurred in the course of an overtaking movement. Nor did it provide any evidentiary basis for a finding that the vehicle had suffered a tyre blow out before it left the road. In that statement Mr Simpson said that he did not know whether the accident could have been caused by a blow out. In the same statement he said that he recalled travelling north at about 80 to 100 kph, talking to his girlfriend. He recalled dirt was flying around and "we ended up in a creek bed". Mr Simpson was not called by the respondent. His Honour found that a material witness (Mr Simpson) who could give evidence of how the accident occurred was not called for "obviously tactical reasons" (AB 265 N-P). Clearly this was so. The parties conducted their litigation in a way clearly designed to obtain and maximise, forensic advantages in accordance with the principles associated with the adversary system. The respondent succeeded. 8 UNREPORTED JUDGMENTS The question is whether she was entitled to succeed. The respondent also gave evidence that her husband was in the city at the time of trial and that she did not expect him to give evidence. At the trial the appellant also called only one witness on the issue of liability, that was the policeman, Senior Constable McDonald. A Jones v Dunkel inference was drawn against the respondent but not against the appellant insurer. His Honour cited Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 343 in support. No notice of contention has been brought challenging this finding. No challenge is made to the correctness of Ghazal. Senior Constable McDonald gave evidence as to what he saw after the accident, a brief description of the location, of his observations at the scene of the accident, of interviewing both the respondent (on 11 August 1987) and the driver Simpson (on 10 September 1987). He also gave some evidence as to his own experience of a blow out while driving a utility truck. He gave evidence of inspecting Simpson's vehicle some time after the accident. The appeal has been conducted upon the basis that the trial judge's finding of negligence is essentially founded upon the evidence given at the trial by Senior Constable McDonald and the inferences to be drawn from such evidence. It is appropriate to carefully examine this evidence in some detail. Senior Constable MeDonald said that on 10 April 1987 he attended the scene of the accident. He observed a yellow Ford Cortina on the western side (the driver's correct side) of the highway, approximately 30 kilometres north of a turn off. He said that the highway ran in a north-south direction. He saw that the vehicle was extensively damaged and it was lying on the northern side of a drain which was approximately four to five feet deep with graded sides. On 11 April 1987 he spoke with the respondent and interviewed her. She told him "Well, we were just driving along and I think we got a blow out and Murray just pulled the steering wheel to the left so that we didn't hit a post as we were skidding off the road" (AB 111). (In her evidence the respondent had earlier said she could not remember the question or the answer: (AB 66). The Constable said he asked what speed the vehicle was travelling at and she replied "About 100 kilometres per hour. We don't go any faster otherwise I really start to freak out" (AB 111). (In her evidence the respondent said she could not remember the question or the answer (AB 67). I would observe that the respondent denied being knocked out in consequence of the accident. His Honour's actual findings were not expressly made by reference to these matters. Constable McDonald said that some time after the accident he inspected Simpson's vehicle. He noticed that the rear left hand tyre was deflated and that the thread was hanging loose except for a small area. Constable McDonald observed the word retread was written on the side of the tyre. The tyre was "familiar of that tyre having a blow out". (AB 112) The appellant's counsel then led evidence from the Constable as to his experience of driving a motor vehicle. He said he did a lot of driving. He then described what had happened on one occasion when he had experienced a left hand, rear tyre blow out in his Toyota Hilux truck. The blow out took place near Richmond, Queensland in road conditions not described in evidence. Although there was an objection, he was allowed to give evidence of his experience after the blow out, although he was not asked to give expert evidence (AB 112 R-T). He gave the following evidence at AB 113-114: URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Abadee AJA) 9 "HIS HONOUR: Q. We want to know what happened to you, to your car, when it happened to you? A. The rear of the vehicle dropped down to that corner and it causes the vehicle OBJECTION McDONALD: Q. It caused -? A. It caused my vehicle to go to the left hand side. Q. What speed were you travelling at the time of this blow out? A. Approximately 100 kilometres per hour. Q. What type of vehicle were you driving at that time? A. Toyota Hilux Q. What happened to the vehicle in the course of that Event? A. My vehicle went to the left hand side and went off the side of the road where I was able to stop. (my emphasis) Q. Were you able to control the vehicle, that is prevent it going to the left, what did you do if anything? A. You allow the vehicle to - OBJECTION HIS HONOUR: Q. No, what did you do then? A. I allowed the vehicle to go in that direction. McDONALD: Q. Why did you do that? A. Because I didn't want to resist against the pull of the vehicle. Q. Why not? A. Because it would cause the vehicle to lose control. Q. What do you mean by - OBJECTION A. I believe it would have caused my vehicle to lose control. Q. When you used the expression "resist against the pull of the vehicle" what did you mean by that? A. The vehicle has a sensation of being pulled on that side. I could feel it slowing me down and it was like a dragging feeling on that side of the vehicle. Q. What did you mean by "resist against the pull of it"? A. It felt like the vehicle was being - the thing was being pulled around to the left and I had been instructed not to pull it to the right as it would cause the vehicle to slip or spin around. (my emphasis) CROSS-EXAMINATION WHEELAHAN: Q. Where did this event occur? A. Near Richmond. Q. In New South Wales? A. No, Queensland. Q. When? A. About 3 years ago. Q. When were you asked first to recall whether or not you had even been involved in such an episode? A. When was I asked? Q. When did you recall if you had ever been involved in such an episode? A. Just now. Q. On the occasion the left rear tyre on the vehicle you were driving deflated, you drove it off the roadway and stopped, correct? A. No. Q. Did you crash? 10 UNREPORTED JUDGMENTS A. No. Q. You were able to bring it to a halt without sustaining injury to yourself without sustaining injury? A. Yes." In cross-examination he also said that on the relevant occasion the vehicle "pulled to the left" immediately upon the sensation of the blow out occurring. It would appear that Constable McDonald's response to the truck tyre blow out was a deliberate one, in allowing the truck to proceed naturally off the road, to a safe stopping location. This had been a course apparently adopted from "instructions" he had received as to what to do in such a situation. In cross-examination Constable McDonald described Mr Simpson's vehicle as having left the roadway, traversed a shoulder on the western side entered a paddock west of the shoulder, traversed an area of paddock and finally crashed into a drain about four to five feet deep. He was shown a plan (which was not tendered in evidence). He said that on the plan he had drawn parallel marks from the western carriage into the paddock and off into the drain. He described the marks as skid marks, consistent with a vehicle skidding, or the application of brakes causing the tyres to skid on the surface. He said that he could not say whether there were one or two skid marks. He also could not say whether the skid mark had come from a blown out tyre. His Honour made no finding in relation to the skid marks or as to the explanation for such. Constable McDonald also agreed with the description of a single line on the plan prepared by him as commencing "on the western side of the highway travelling to the east or the incorrect side of the road and joining up with parallel heavy lines back on the western side". That this described the path of the vehicle before it skidded, that is, going from the correct side of the road to the incorrect side and then back to the correct side of the road was unchallenged. This evidence elicited in cross examination was not referred to by the trial judge in his findings. It would suggest a prompt response to a blow out, and an unsuccessful attempt to keep the vehicle on the bitumen road surface. In further cross-examination Constable McDonald said that there was no "fence" between the carriageway and the paddock, and that where the vehicle entered the drain was about a few metres from the edge of the bitumen surface. He was not asked whether there were guide posts in the location. He said that there was a dirt gravel shoulder of two metres, on the side of the bitumen from the bitumen surface and another two metres "after the dirt shoulder which is where the car entered the drain". (AB 116). The road was level and straight in the area. In his judgment his Honour said (at AB 266-267): "Accordingly, I am not satisfied to the civil standard of proof that the accident took place as the plaintiff now claims it did; and in the light of all the evidence I consider it more likely that what happened was that as the driver was preceding along the road not overtaking anyone, there was a blow out of the rear left hand tyre which caused the vehicle to drag to the left and the driver allowed the vehicle to go further to the left off the road and into the ditch or creek bed. Whether he deliberately drove it to the left to avoid a guide post, I am unable to say as on this point there is no sworn evidence but only the unsworn statement by the plaintiff to the police the following day. The vehicle was probably travelling about 100 kilometres per hour and there is no evidence that this was an unreasonable speed on that stretch of road or that the driver should have anticipated a blow out. However, even with a blow out I would have expected a reasonably competent URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Abadee AJA) 11 driver to make reasonable efforts, and with reasonable prospects of success, to keep the vehicle on the roadway whilst it slowed down; and the fact that he did not do so, suggests either that he was not paying attention at the time he suffered the blow out, he did not exercise reasonable care after the blow out to keep the vehicle on the road whilst it slowed down, and/or perhaps that he was not travelling at the speed indicated, but much faster". At the same page he also said: "Tn all the circumstances I am satisfied that on the blow out occurring the driver was negligent in failing to attempt to keep the motor vehicle on the roadway." (my emphasis) In its appeal to this Court the appellant has submitted that his Honour, having rejected the respondent's "overtaking" version, should have held that she had failed to carry her burden on the issue of negligence. The appellant also argued that the trial judge was in further error in finding the driver negligent on the specific basis found, because such finding was not open to him on the evidence. The appellant not only challenges the ultimate finding that the driver failed to make reasonable efforts to keep the motor vehicle on the roadway after the blow out, but each of the three "intermediate factors" said to have been relied upon to support such finding. These factors were said to be: first, a failure to keep the vehicle on the roadway as it slowed down; second, a failure "to pay attention at the time he suffered the blow out"; and third, the finding that perhaps the driver was not travelling at the speed indicated but much faster. The appellant also challenges the entitlement of the trial judge to find negligence by reference to the evidence of Constable McDonald's one experience of a tyre blow out. He submitted that the trial judge's findings were generally speculative and also failed to give effect to the markings on the road as described by Constable McDonald. Mr Donovan QC submitted that the judgment did not pretend to rest a finding of negligence simply from the unexplained occurrence of a car that left the highway and proceeded off the road into a drain. It would seem to me that this submission is correct. His Honour did not purport to make a finding of, or negligence, upon the specific basis of a sudden movement of Simpson's vehicle off the road: Davis v Bunn (1936) 56 CLR 246 per Dixon J at 260. There is no notice of contention challenging his Honour's failure to find or infer negligence on this basis or any other basis. The movement of the vehicle of the road, if nothing about the circumstances of such movement was known, would alone have supported an inference of negligence on the part of the driver: Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 per Barwick CJ at 412. Such an inference of negligence was available to be drawn, despite the finding of a blow out, had his Honour chosen to draw such an inference. He did not, nor was he bound to do so. He found that there was a blow out of the left hand tyre which preceded the occurrence of the vehicle leaving the road surface. The found negligence was in failing to attempt to keep the motor vehicle on the highway after the blow out. Such finding by the trial judge left no room for the foundation of an inference of negligence arising from the mere movement of the vehicle off the road. There were no challenges to these findings. In arriving at his conclusion his Honour had regard to the decision of the High Court in Wels v McGrath (1973) 47 ALJR 324, a case where on the evidence the High Court held that following a vehicle tyre blow out, the driver had been negligent in not attempting to keep the vehicle on "the road surface'. I shall say more about Wels in due course. However, it will be recalled that when Constable 12 UNREPORTED JUDGMENTS McDonald gave evidence of his experience of a truck tyre blow out, he said that he had "permitted" the car to proceed off the side of the road where he was able to stop. His evidence, on analysis, provided no foundation for the finding made by his Honour. Nor does such evidence support the applicability of the decision in Wels to the circumstances of the instant case. It is appropriate to here observe that there was no expert evidence as to what happens to a passenger car when a tyre blows out. The only evidence was that of an experienced police officer instructed in what to do in respect of another type of vehicle, ie a truck in a different location. Had his Honour done no more than draw an inference of negligence from the car going off the road, that finding would not have been capable of challenge. This however was not the way he decided the case. He did not find that the blow out explained why the car left the road but rather that this was due to the failure to promptly attempt to respond to it. The appellant argued that there is no evidence to support the finding that after the blow out the driver failed to attempt to keep the vehicle on the road. Mr Donovan submitted that his Honour was not permitted to infer from the fact of the blow out that "the driver allowed the vehicle to go further to the left off the road". On the version found by the Court of a "drag to the left" it was also submitted that there was no evidence that the vehicle could have stayed on the highway. He disputed the trial judge's finding that the driver "allowed" the vehicle to go off the carriageway as being a finding not open, nor otherwise supportive of negligence. Alternatively, he argued that the finding of a "drag to the left" and subsequent "allowance" by the driver to go "further to the left of the road" involved rejecting the unchallenged evidence of Constable McDonald. In my view such a rejection was not open. The evidence of Constable McDonald of the vehicle crossing to the incorrect side of the road and then skidding during its return to the correct side of the road (AB 116 L-T) whilst not a matter referred to in the judgment, provided evidence of an alert driver "attempting" to control a vehicle on the incorrect side of the road and bring it back onto the correct side then because of the tyre blow out skidding or braking as the vehicle left the roadway. Constable McDonald said that the skid marks were made by a vehicle "simply skidding" or on the "application of brakes" causing the tyres to skid on the surface. He could not say which (AB 115 E-H). The argument that the driver was not paying attention at the time of the blow out was not open to be drawn from the evidence of Constable McDonald. Then, Mr Donovan challenged his Honour's "intermediate factor" finding that the driver failed to keep the vehicle on the roadway because "perhaps" he was not travelling at the speed indicated but much faster. Again this submission should be accepted. More significantly his Honour had specifically found that the vehicle was probably travelling about 100 kilometres per hour (AB 266N). Having made such a finding it was not open for his Honour to speculate whether that the vehicle was not travelling at such a speed and to use that speculation to support a finding of negligence. Such a suggestion speaks more of conjecture than inference and in any event is inconsistent with his Honour's earlier finding. The appellant submitted that there was no evidence that the driver failed to act in a reasonable manner, that there is positive evidence that the driver had sought to keep the car on the road, from the correction of its direction and that such was evidence of alertness and attentiveness in response to the blow out. It is perhaps URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Abadee AJA) 13 appropriate to observe that the specific negligence found is not negligence in the manner of attempting to control the vehicle but rather in negligently failing to promptly make the attempt at all. Finally, Mr Donovan submitted that his Honour was in error in relying upon the decision of Wels to found a case of negligence against the driver upon the basis found by his Honour. In that case there was also a tyre blow out on the vehicle, The Court found negligence in the mode and manner of an attempted response. However, in Wels, the driver was called to give evidence. The finding of negligence in not having attempted to keep the vehicle on the roadway was based upon the driver's "acceptance" that he could have kept the vehicle on the road and that he realised this was the course he could have taken (at 325). There also appears to have been virtually an "admission" by the driver (at 326) supporting or providing a foundation for a finding of negligence. Thus, in Wels the finding of negligence in the driver's failing to attempt to keep the vehicle on the road after a blow out was thus supported by direct evidence from the driver, that he could have done more. In the instant case there is an absence of such evidence. Again in the instant case there is evidence of the driver skidding, albeit Constable McDonald could not say whether such skidding was attributable to braking or otherwise. Given this evidence I do not see how this Court could decide the cause of the skid marks. The actual evidence of Constable McDonald does not support the factual decision in Wels being applied in the instant case. For the respondent the following submissions were made. His Honour's finding of negligence, ie negligence in failing to attempt to keep the vehicle on the roadway was open to his Honour having regard to the evidence of Constable McDonald. It was submitted that his Honour's findings at AB 266-267 as quoted by me, and the evidence of blow out, enabled his Honour again by reference to Constable McDonald's evidence to conclude that a vehicle suffering a blow out in the rear left hand tyre at a speed of 100 kph could be brought to rest without accident. Mr Toomey QC submitted that the basis of the finding of negligence was the acceptance "to an extent" of the police constable's evidence that he had experienced a blow out and had been still able to keep the vehicle under control. Mr Toomey pointed to his Honour having the evidence of what Constable McDonald had done on the one occasion after a back wheel blow out and on this basis determined that there were reasonable prospects of success of keeping the vehicle on the roadway while it slowed down. Mr Toomey also submitted that the inference of negligence was available from the nature of the occurrence (Davis) and that it had not been explained away by the found tyre blow out. Despite this submission, he did not abandon his Honour's basis for finding negligence. In fact he relied upon it and the supporting reasons for such a finding. Mr Toomey also pointed to the fact that the collision was some four metres laterally from the edge of the bitumen. He argued that there was no evidence to establish that the blow out caused the vehicle to leave the road. Mr Toomey submitted that the explanation for the occurrence was not the blow out but the driver's negligent conduct subsequent to the blow out. He relied on the decision in Wels, as did his Honour in support of his argument. Ihave given the arguments advanced very careful consideration. His Honour's reasons for finding negligence on the basis stated in my view involves a level of speculation with the reasons reflecting such. There is a paucity of factual findings and there is a dearth of evidence to permit the inference of negligence found by his Honour. 14 UNREPORTED JUDGMENTS A close examination of Constable McDonald's evidence does not in my view support the positive inference of negligence found, namely that after the blow out the driver failed to attempt to keep his vehicle on the roadway. Nor in my opinion does his evidence support the reasoning that the intermediate factors relied upon by the trial judge support the earlier finding that the driver failed to make reasonable efforts to keep the motor vehicle on the roadway as it slowed down. The factors relied on are more akin to conjecture or speculation than arise by way of inference. In a case such as the present it is appropriate to remind oneself of a passage from West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66 where the majority of the High Court said: "Tt is well to recall what was said by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304-305 where he said: 'In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of judicial mind". His Honour went on to say that the law 'does not authorise a court to choose between guesses, where the possibilities are not unlimited on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied' and see also TNT Management Pty Ltd v Brooks (1979) 53 ALJ 267 at 269 per Gibbs J. In my view these tests were not met. His Honour's specific finding of negligence cannot be supported. I would not draw any inference of negligence. The appeal should be allowed and judgment set aside. I would propose the following orders: 1. Appeal be allowed with costs. 2. Judgment be entered for the appellant. 3. The respondent to pay the appellant's costs. 4. The respondent is entitled to a certificate under the Suitor's Fund Act 1951 if otherwise qualified. Santow AJA I have had the advantage of reading in draft the opposing Judgments of Clarke JA and Abadee AJA. For the reasons set out by Clarke JA I would uphold the Judgment under appeal. I should add, however, some brief comments of my own. Both Clarke JA and Abadee AJA deal with Constable McDonald's evidence, who was called by the Appellant and who attended at the scene of the accident at 3.30 pm. The particular evidence that was not referred to at all by the Trial Judge was that Constable McDonald had recorded the path of the vehicle immediately before it left the road in a plan which indicated that the vehicle first travelled from its correct side of the road to the incorrect side and then returned to its correct side ("the initial path evidence"). Having returned to its correct side, it then began to skid, leaving skid marks which commenced towards the left hand side of the road ("the left hand skid evidence"). The vehicle then ended up off the road in the ditch or creek bed, as is clear from the evidence referred to in the Judgment. It is important to emphasise that while the Trial Judge did not refer explicitly to either of the first two items of evidence, his holding and its basis necessarily involved rejection of the initial path evidence. It is clear from His Honour's URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Santow AJA) 15 conclusion, quoted below, that he did not accept the Respondent's version of events. In particular he did not accept the Respondent's allegation in the pleading that the accident was caused by the driver attempting to overtake and then veering to the left to avoid a head-on collision. The Trial Judge found this evidence inconsistent with the statements which the driver had made to the police officer while in hospital and in histories given to doctors in which he did not mention the overtaking. While Constable McDonald's evidence is not expressed in terms that the initial path to the incorrect side was to effect an overtaking, no other explanation was given for the motor vehicle taking that initial path. The Trial Judge thus rejected the Respondent's version of events and instead concluded: "... Lam not satisfied to the civil standard of proof that the accident took place as the plaintiff now claims it did; and in the light of all the evidence I consider it more likely that what happened was that as the driver was proceeding along the road not overtaking anyone, there was a blow-out of the rear left hand tyre which caused the vehicle to drag to the left and the driver allowed the vehicle to go further to the left off the road and into the ditch or creek bed." Thus it is clear that the Trial Judge makes no mention of the initial path evidence but only of the drag to the left resulting from the blow-out of the rear left hand tyre. That drag is consistent with the left hand skid evidence; that is to say, with skid marks which commenced towards the left hand side of the road, though His Honour makes no mention of them. Indeed His Honour's conclusion that the blow-out of the rear left hand tyre caused the vehicle to drag to the left clearly suggests that if there had been an initial path to the right, the blow-out must have occurred after the car had returned to the correct side of the road. However, there need have been no initial path to the right at all for the vehicle to drag to the left; the latter is not dependant on the former. While making no express reference to the initial path evidence or to the left hand skid evidence, the Trial Judge did rely upon evidence concerning his experience when a left hand rear tyre blew out in his Toyota Hilux truck. Abadee AJA suggests that the earlier linked path and left hand skid evidence - which had been elicited in cross-examination - would "suggest a prompt response to a blow-out, and an unsuccessful attempt to keep the vehicle on the bitumen road surface". However, for reasons elaborated below, I do not consider the omission of any express reference to that evidence of Constable McDonald should lead to the success of this appeal. I agree with Clarke JA's conclusion concerning that evidence: "Tt is not open to this Court to act upon the basis that that evidence was accepted by His Honour as evidencing the course of travel of the vehicle immediately before the accident. Indeed His Honour's findings as to the probabilities make it quite plain that His Honour did not accept that the vehicle travelled along the path noted by the police officer in his note book". There is no suggestion that the alleged initial path of the car to the incorrect side of the road was evidenced by any objective physical evidence. The evidence of skid marks related to movement from the correct side of the road further to the left. It is consistent with the Trial Judge's finding, though not expressly remarked on by him. 16 UNREPORTED JUDGMENTS In the absence of any physical evidence for it, the only source of the initial path evidence so far as Constable McDonald is concerned, must therefore have been the Respondent. The driver Mr Simpson's statement of 10 September 1987 makes no mention of over-taking and he otherwise gave no evidence. As to the Respondent, though she pleaded that the vehicle did take that initial path by attempting to overtake, that evidence did not square with Constable McDonald's evidence of her interview next day (11 April 1987). At that interview no mention was made of the claimed overtaking, but rather of the burst tyre. Nor does it square with the histories she gave to the doctors in the hospital in which she did not mention the claimed overtaking. Thus there is no firm basis for Constable McDonald's initial path evidence. It was therefore perfectly open to the Trial Judge to disregard that evidence. The remaining evidence of the skid marks on the correct side of the road, though not expressly referred to by the Trial Judge, is wholly consistent with the Trial Judge's actual finding as to the burst tyre and its sequel. Even if the initial path evidence were accepted, it does not ground an inference by itself of any prompt response to a blow-out. Furthermore, given that the car first went to the right, that direction is inconsistent with a blow-out of the rear left tyre prior to going to the right. The evidence is that such a blow-out would cause the car to veer to the left. Where two possible events out of the ordinary can be cited as each being sufficient explanation for a car skidding off the road, namely an initial path to the right to effect a dangerous overtaking, or a blown tyre, it must be less probable that both were operative than only one. On the evidence before the Trial Judge, it was clearly open to him to conclude that only the blown tyre explanation applied, and not also, the overtaking. It was also clearly open to him to conclude that the overtaking did not occur at all. I therefore conclude that the Trial Judge's treatment of this part of the evidence of Constable McDonald, though abbreviated, is not such as to undermine either the Trial Judge's finding of negligence or the basis for it. As regards the Appellant's further submission that, nonetheless, once it is accepted that the tyre blew out, it is no longer open to the Court to infer that the driver was negligent, or alternatively, that that inference should not be drawn, consistent with the onus remaining with the Respondent, I adopt and agree with the reasoning of Clarke JA. There being no expert evidence to the contrary and giving some weight to the anecdotal evidence of Constable McDonald, though not an expert and driving a Toyota Hilux truck rather than a car, I agree with Clarke JA that there is nothing intrinsic to the occurrence of a left hand rear tyre blow-out which precludes a reasonably prudent driver from being able to retain control of the vehicle on the road. That he failed to do so, is the "thing" (or "res") which speaks for itself in terms of negligence, without need for further proof, according to the maxim "res ipsa loquitur'. It may be that in future cases, expert evidence will be brought to bear confirming or refuting an inference based solely on the movement of the vehicle off the road, where this is preceded by a burst tyre and with some suggestion of a skid. However, no such expert evidence was available to the Trial Judge in this case, including as to the likelihood and effect of a skid resulting from the burst tyre. URJ NSW INSURANCE MINISTERIAL CORP v WEBSTER (Santow AJA) 17 For completeness, though not affecting the result in this Appeal, I should add that I agree with Clarke JA that no Jones v Dunkel inference, adverse to the Respondent, should have been drawn from her failure to call the driver of the car whom she has subsequently married. In a forensic sense, he and she are not "in the same camp", so as to be available to the Respondent as is necessary to ground such an inference; see most recently Commonwealth of Australia v William Leonard McLean (Court of Appeal, 31 December 1996, unreported) per Handley JA and Beazley JA at 41 and following citing Payne v Parker [1976] 1 NSWLR 191 and 194 per Hutley JA and at 200-202 per Glass JA (his proposition 6). That they have since married does not make any difference to that fact. I would agree with the orders proposed by Clarke JA (there being no dispute about the necessary adjustment to the award of interest where the Respondent concedes that His Honour erred). Appeal be allowed with costs and judgment set aside. Judgment be entered for the appellant. The respondent to pay the appellant's costs. The respondent is entitled to a certificate under the Suitor's Fund Act 1951 if otherwise qualified. RYN Counsel for the appellant: B Donovan QC; R F Sutherland Solicitors for the appellant: R J Walters Counsel for the respondent: B Toomey QC; T Clarke Solicitors for the respondent: Keddies