COWAN and ANOR v COWAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 1 September 1997, 1 September 1997 [1997] NSWCA 82 NEGLIGENCE — whether trial judge's decision was supported by the evidence — admission by appellant that brakes (front and back) were faulty meant that the cause of the accident could be established. Cole JA The appellants were the owners of an unregistered motorised farm tricycle which was being driven by the respondent on 7 January 1993 when it overturned after she had braked whilst turning to her left to avoid a farm dog which had run across in front of her. She alleged that "the motor bike had defective brakes" and it was that circumstance which caused the vehicle to overturn on top of her. She sued the appellants, one of whom was her husband, in negligence. In a judgment delivered 30 April 1996 Garling DCJ found a verdict for the respondent and awarded $31,400 damages. The appellant has contended that the only evidence before the trial judge was that the front brake only was defective and that brake was applied using a braking handle on the left handlebar. They have contended that the only evidence of the plaintiff was that she braked by applying her foot to a foot brake pedal, and by grabbing the brake handle on the right handlebar, both of which activated the brakes on the two rear wheels. They contend that there was no evidence that the rear brakes were defective. Accordingly there should have been a verdict for the defendants as there was no causal connection established between the negligence alleged and the accident. They contend that there was no evidence to justify the trial judge stating as he did: "T am not sure if the plaintiff was accurate in what she said."! in reference to her evidence that she grabbed the brake lever on the right handlebar, or his Honour's statement that: "Perhaps the plaintiff has made an error as to which hand she applied the brake with, the left or the right."2 They also contended that there was no basis at all for his Honour's finding that: "Tt is quite clear that the bike tipped over because of the faulty brake and for no other reason and the defendant was clearly negligent.'"'3 Similarly it was contended that his finding that "the sole cause of this accident was faulty brakes. If the brakes had not been faulty then the plaintiff could have swerved and braked and it would not have caused any problem" was unsupported by the evidence. It is necessary to look closely at the allegations in the statement of claim and the evidence. The statement of claim alleged that the plaintiff: 1. Appeal Book, p33J. 2. Appeal Book, p33R 3. 3 Appeal Book, p34A-p34C. 2 UNREPORTED JUDGMENTS "Applied the brakes of the motor bike which thereupon failed to work as a result of which she lost control of the motorbike which overturned and came to rest on top of her.''4 In particulars of negligence it was alleged that the appellants: "(c) Failed to warn the plaintiff that the motorbike had defective brakes. (d) On becoming aware that the motorbike had defective brakes failed to repair the brakes. (e) Failed to keep the motorbike in good order and condition. (f) Failed to withdraw the motorbike from use when they became aware that it had defective brakes."'5 The plaintiff's evidence was that she was travelling along a farm track with farm dogs on either side of her. A male dog on the right hand side ran across in front of the bike towards the female dog on the left side. She swerved to the left, braked and the vehicle tipped over on top of her. In chief she said: "A. He would have been practically under the wheel, because I had to brake to stop from - I swerved and then braked, so I would not hit him. Q. When you say you braked, what precisely did you do to brake? A. [hit the brake with my foot and also the handbrake, with my right hand. Q. What's the next thing you remember? A. Just the braking on the handlebar and then nothing, I was unconscious, I was knocked out. Q. You said before you were knocked out you remember the brake on the handlebar. A. Yes sir. Q. What do you mean by that? A. It locked on and wouldn't release."¢ In cross-examination the respondent gave a similar account. She said: "A. I was going along and Sox the male dog he ran in front of the bike, I, with the handlebars I turned to avoid him and pulled... Q. Did you turn to the right? A. The left. Q. You turned to the left to avoid him? A. Yes, I grabbed the right handlebar and it locked in position and wouldn't unlock. Q. You grabbed the right handlebar? A. Yes the brake."7 The first appellant, the respondent's husband, was in court when she gave her evidence but he was not called by the appellant. The respondent was asked if she had discussed the accident with her husband. She gave the following evidence: Q. Have you discussed the accident on the motorbike with your husband, since the accident? A. Well we live together, we're married, so I mean three and a half years... Q. Is the answer "yes"? A. Yes. Q. Has your husband said anything to you about the brakes on that bike? A. In what way sir? 4. Appeal Book, p2G-p2I. 5. Appeal Book, p2N-p2R 6. Appeal Book, p9V-plOH. 7. Appeal Book, p24M-p2Q. URJ COWAN and ANOR v COWAN (Cole JA) 3 Q. Well since the accident, has he told you something about the brakes on the bike? A. Well after the accident yes, we took it to Narandra to have it looked at. Q. Has he told you something about something happening...? A. Yes he said that I should have warned you that the brakes were faulty and I said, well what can you say, the accident happened."8 It is to be noted that that admission of knowledge of faulty brakes was not restricted to the front wheel brake alone. Further, the respondent gave evidence that she was present when her husband was asked to provide information by facsimile to a request for particulars which the appellant's solicitors had received from the respondent's solicitors, and which the appellant's solicitors had faxed to him. Mr Cowan, Mrs Cowan and Mrs Cowan's parents, and her daughter were all present sitting around a table discussing the answers which should be given to that request, although the respondent did not take part in the discussion concerning the answers related to liability. She was asked to put in the first person what her husband had said. Her answer was: "A. What, that the brakes failed. Q. If he said that? A. Yes, he said, "the brakes locked on and failed."9 That also constitutes an admission by the appellant relating to the cause of accident which was not restricted to the front brake only. Further, during the same conversation around the kitchen table, the respondent gave evidence: "A. Well from what I can remember, he said vaguely, "I should have warned you that the brakes were faulty due to the wet weather and the fact that I had ridden the bike and they were faulty", and I mean what could I reply, I wasn't really... Q. Just tell us what he said? A. He just sort of said he was working the sixteen hours a day and didn't get round to telling me about the brakes and he had experienced the problem himself out in the field, in the paddock one day, working with the cattle. Q. Did he tell you when it w as that he had experienced this problem? A. Over the last few weeks, before the accident."!0 That also constitutes an admission that the "brakes", and not merely the front wheel brake was faulty, and further that the appellant acknowledged that he should have warned the respondent of the circumstance. Thus on the plaintiffs evidence there was an admission made by one appellant that: (a) He knew that the "brakes" were faulty. (b) That he should have warned the appellant that "the brakes" were faulty; and (c) An admission by the appellant that at the time of the accident the "brakes" locked on and failed. Had there been no evidence other than the plaintiffs evidence, bearing in mind the appellant's failure to call the respondent husband, in my view it would have been open to a tribunal of fact to find on the admissions to which I have referred that the cause of the accident was braking failure. At the trial only two possible 8. Appeal Book, p1SD-p15K 9. Appeal Book, p16S-p16T. 10. Appeal Book, p16S-p16V 4 UNREPORTED JUDGMENTS causes of the accident were suggested. The plaintiff said it was due to braking failure. The defendant suggested that she may have been travelling at an excessive speed, a contention rejected by the trial judge who held: "There is no evidence before me that the bike could have tipped over at a slow speed for any other reason other than for faulty brakes." It is to be recognised, of course, that the plaintiff's bears the onus of establishing the cause of the accident, but in circumstances where those were the only two matters raised in the evidence, a tribunal of fact would be able in my view, having rejected the speed allegation as a cause, to find causation established. The respondent husband was not called but a statement signed by him was tendered. In it he wrote: "Approximately two weeks beforehand at about.... PM I was using the bike to round some sheep up. I wasn't going very fast and I noticed when I put the brake on that the front brake jammed. I first thought that because of all the wet weather and travelling in and out of puddles that was the reason. After that it jammed every time I applied the brakes. The front brake is applied with left hand, back brake with right hand and by foot, so you could still use the bike by applying the back brake... I meant to get the brakes looked at (probably by myself) but because of lack of time, I didn't get round to it. I did tell my daughter in the next few days (Martinique aged thirteen) because she rides the bike from time to time but I forgot to tell my wife. Only last week I had a look, and took it (the bike) to Eurells. They told me they'd give me a quote but damage was extensive (expected $1500-$2000 and if so it will be a right off because that is all it's worth). The day I took the bike in and he said to me that the front brakes were jamming on and that would have flipped the bike." The appellant husband's statement, read literally, suggests that the front brake jammed every time he applied the "brakes", although the statement that "you could still use the bike by applying the back brake" would tend to suggest the contrary. However the appellant chose not to explain that matter. The evidence does not make clear whether this vehicle had two distinct braking systems, one for the front wheel and one for the two rear wheels, or whether there was one braking system which could be operated so as to apply only to the front wheel by using the left hand lever, or only to the rear wheels by using the foot pedal or right hand lever. In my view, in the light of the various admissions made by the appellant husband that the "brakes" were defective, that he should have warned his wife, as he did his daughter, of the danger of using the vehicle with the defective "brakes'', and his admission that at the time of the accident "the brakes locked on and failed", it was open to a tribunal of fact to find that the cause of the accident was defective brakes. The appellant husband's statement makes clear that there was evidence that if the front brake locked the vehicle could flip as it did. Having admitted that "the brakes locked on and failed" at the time of accident, that grounds a finding that the cause of the accident was due to that factor. I would dismiss the appeal with costs. Beazley JA I agree. Stein JA I also agree. URJ COWAN and ANOR v COWAN (Cole JA) 5 Cole JA The order of the Court will be that the appeal is dismissed with costs. Appeal dismissed with costs. 5 Counsel for the appellant: I G Harrison SC/J P Merkel Solicitors for the appellant: Phillips Fox Counsel for the respondent: R Goodridge 10 Solicitors for the respondent: Firths