NOMINAL DEFENDANT v McPHILLAMY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and SHELLER JJA 16 February 1998, 16 February 1998 [1998] NSWCA 161 CONTRIBUTORY NEGLIGENCE — argued trial Judge erred in not finding contributory negligence — Held: Appellant did not satisfy onus — facts provided no inference, on balance of probabilities of contributory negligence — appeal dismissed Sheller JA At 5.45 pm on a Sunday afternoon on 4 November 1990, the plaintiff, Michael Gerard McPhillamy, was riding a motor cycle in a westerly direction on the Tarana/Locksley Road, in the Bathurst area, when he collided with a Honda Odyssey motor vehicle driven in an easterly direction by Stephen Haynes. Neither vehicle was registered or insured. Stephen Haynes was uninjured. Mr McPhillamy suffered severe injuries which eventually resulted in the loss of his leg. Mr McPhillamy commenced proceedings against Stephen Haynes, Robert Warry, who was the owner of the Odyssey vehicle and the Nominal Defendant, pursuant to s27 of the Motor Accidents Act. Simpson J heard the proceedings at Bathurst on 3 June 1997 and awarded the plaintiff $795,625 by way of damages. The Nominal Defendant has appealed. Her Honour described the road on which the accident occurred as a poorly maintained, narrow country road sealed with bitumen in the centre with gravel shoulders. She said it was not wide enough for two vehicles to pass without at least one moving on to the gravel shoulder. No centre line was marked. The road travelled through undulating country with a number of crests and curves. No eye witness gave evidence of the accident. The plaintiff suffered from retrograde amnesia. Stephen Haynes was not called to give evidence. Although liability was hotly contested at the trial, as I understand the submissions of Mr Morris QC who appeared for the appellant, that is not an issue on the appeal. Simpson J reviewed the evidence. She found Mr McPhillamy to be a generally credible witness and she accepted the evidence of a Mr Hawkey, who arrived at the scene of the accident shortly after it had occurred. His evidence was that when he arrived the Odyssey was in the middle of the bitumen part of the road. The police were not called to the accident and indeed apparently did not learn of it until about 7.00 pm that night. Later that evening Senior Constable Rodwell attended the site and identified a fuel spill near the centre of the roadway in the area where he was told by another person that the accident had taken place. Her Honour inferred that this fuel spill had come from the Odyssey vehicle. The bitumen at that point was approximately four metres in width and the fuel spill was approximately two metres from either side. Her Honour expressed difficulty, for a variety of reasons, in accepting the evidence of Stephen Haynes' father, who did give evidence. Her Honour expressed a number of reasons for that conclusion. Her Honour found, on what she described as the flimsy material available, that the probabilities favoured the conclusion that the Odyssey was indeed across the notional centre of the 2 UNREPORTED JUDGMENTS roadway. She then reviewed the principal evidence led at the trial about contributory negligence, namely, that Mr McPhillamy, had been affected by the consumption of some alcohol earlier that afternoon. Having reviewed that evidence, her Honour found that the circumstances surrounding that intake of alcohol had not contributed in any way to the accident. That finding was not challenged. Her Honour said that the accident was, in her view, caused by two things; (i) the fact the Odyssey sat so low on the ground as to render its visibility less than that of any ordinary vehicle; (ii) the fact that Stephen Haynes drove it across the centre of the road and into the path of the plaintiffs on-coming vehicle. The notice of appeal contains eight grounds of appeal. The appellant has either abandoned those grounds of appeal or, in so far as they relate to mistakes said to have been made in the judgment about matters of fact, does not press them separately. The ground of appeal relied upon is ground 7, that her Honour erred in law in failing to consider the question of contributory negligence on the part of the respondent other than the effect of alcohol on his driving ability. In substance, as I understand it, the appellant argues that this court should draw an inference from the evidence that the plaintiff had, by his own acts or omissions, contributed to the accident which occurred. In particular, it was submitted that if one looked at the evidence which her Honour accepted, namely, a diagram which was prepared in the presence of Mr Hawkey and which he accepted, it showed that when he came upon the scene the Odyssey, although shown across the centre line of the bitumen part of the road, was in fact was only about one third on the wrong side and two thirds on its correct side of the road. Her Honour also made a finding that the plaintiff was proceeding one metre in from the bitumen edge of the road on his side of the road. In fact, the plaintiffs evidence was that he was one foot in from the bitumen edge. The point is made that if this was correct and the Odyssey was in the position shown in the Hawkey diagram, he should, if he had not deviated towards the Odyssey, have passed safely by it. In short, it is submitted, that the accident could not have happened unless the plaintiff had deviated in the way suggested. The appellant also relied upon the fact that the plaintiff, according to his evidence, had already been forced to go off the bitumen onto the gravel shoulder by the passing of Stephen Haynes' father's vehicle which was ahead of the Odyssey. He was warned that there was traffic on the road and he might reasonably expect that there would be further traffic following behind it. Furthermore, he was driving into the westerly sun. He gave evidence that, to some extent, his vision was impaired by the sun and adjusted his helmet to take account of it. It is said that in this situation he continued to maintain a speed of something between 70 and 80 kilometres an hour. It is said that by travelling at that speed with impaired vision Mr McPhillamy was in breach of his obligation to stand clear of any approaching traffic. In particular, the appellant challenged that passage in her Honour's judgment, which I have paraphrased, in which she said that the accident was caused by the two things that she mentioned. First, it is said that the Odyssey as a vehicle was not any lower on the ground than, for example, a motor cycle coming in the opposite direction; secondly, it was said that there was no basis for the finding that Stephen Haynes had driven across the centre of the road and into the path of the plaintiffs on-coming vehicle. URJ NOMINAL DEFENDANT v McPHILLAMY (Priestley JA) 3 The appellant properly accepts that a finding of negligence having been made against the driver of the Odyssey, the onus was on the appellant to establish, on the balance of probabilities, that the driver of the motor cycle was guilty of contributory negligence. For my part, I am not satisfied that any such case has been made out. To start with, there must be some doubt as to the precise position of the Odyssey after the accident when it was observed by Mr Hawkey. It appears that the oil stain (referred to as fuel above) mark found on the road was approximately at the centre of the bitumen portion of the road. The fact that the motor from which the oil most likely leaked was positioned in the centre of the vehicle would suggest that the Odyssey was at least across the centre of the road with, as it were, half and half on each side at some point of time. The evidence, which her Honour accepted was that the plaintiff was travelling uphill towards a crest upon which the accident occurred. He had been forced by the father's vehicle on to the shoulder of the road and understandably, having passed that, sought to come back on to the bitumen. There is no doubt about it that the Odyssey vehicle was on the incorrect side of the road as it came over a crest. There is no doubt that the plaintiff's motor cycle struck the Odyssey somewhere near the rear driver's side wheel. To my mind, there is no basis at all upon which one could infer, on the probabilities, that the motor cycle swerved in or deviated towards the Odyssey. It seems to me far more likely that before it came to rest, the Odyssey was further over on its wrong side of the road than the diagram suggests. It may be that Mr McPhillamy's description of his position as one foot in from the gravel was inaccurate. He may have been closer to the centre of the road. Either way he was proceeding on his correct side of the road towards a vehicle which was on its incorrect side of the road. There is no evidence that his vision was impaired in a way which required him further to reduce the speed at which he was travelling. It is true that he mentioned the sun but he was unable, because of his amnesia, to recall what occurred at the point or shortly before the point of collision. In all these circumstances, I would not be prepared to draw the sort of inference which it seems to me to be at the base of the appellant's claim that contributory negligence was made out. Nor am I satisfied that the other matters which are referred to could be said, as a matter of inference or finding, to have contributed to the accident that occurred. Accordingly, I would dismiss the appeal with costs. Priestley JA I agree Meagher JA I also agree. Priestley JA The Court's order is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: L M Morris QC/J M Morris Solicitors for the appellant: Abbott Tout Counsel for the respondent: B M J Toomey QC/T F McKenzie Solicitors for the respondent: King Cain