New South Wales Court of Appeal CITATION : Nominal Defendant v Genn [2004] NSWCA 306 HEARING DATE(S) : 24/08/04 JUDGMENT DATE : 1 September 2004 JUDGMENT OF : McColl JA at 1; Young CJ in Eq at 2; Kirby J at 88 DECISION : Appeal dismissed with costs. CATCHWORDS : TORTS- Negligence- Res ipsa loquitur type inferences- Action against Nominal Defendant- Whether inference might be drawn that piece of metal on road fell from unidentified motor vehicle as a result of the fault of the operator. LEGISLATION CITED : Motor Accidents Act 1988, s 28 Abalos v Australian Postal Commission (1990) 171 CLR 167 Bellizia v Meares [1971] VR 641 Blandford v Fox (1944) 45 SR (NSW) 241 GIO v Best [1993] Aust Torts Rep 81-209 Harrison v Nominal Defendant (1976) 50 ALJR 330 CASES CITED : Incorporated Nominal Defendant v Kemp (Vic SC Full Court 16.3.1961 unreported) Incorporated Nominal Defendant (Victoria) v Knowles [1987] VR 138; (1986) 4 MVR 174 Johnson v Nominal Defendant [2003] NSWCA 153 Jones v Dunkel (1959) 101 CLR 298 Nominal Defendant v Haslbauer (1967) 117 CLR 448 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 PARTIES : Nominal Defendant (A) Stephen Richard Genn (R) FILE NUMBER(S) : CA 40941/03 COUNSEL : G M Watson SC and P D Ryan (A) M J Neil QC and J A Jobson (R) SOLICITORS : Henry Davis York (A) Milicevic Solicitors (R) LOWER COURT District Court JURISDICTION : LOWER COURT 6108/99 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40941/03 McCOLL JA YOUNG CJ in EQ KIRBY J Wednesday 1 September 2004 NOMINAL DEFENDANT v GENN Judgment 1 McCOLL JA: I agree with Young CJ in Eq. 2 YOUNG CJ in EQ: This is an appeal from a decision of her Honour Acting Judge Gamble of the District Court in which her Honour determined that the present respondent as plaintiff should recover substantial damages from the present appellant in respect of a motor vehicle accident which occurred on 19 August 1996. 3 On the hearing of the appeal, Mr Geoffrey Watson SC and Mr P D Ryan appeared for the appellant, and Mr M J Neil QC and Mr J A Jobson appeared for the respondent. 4 The learned judge said that the accident occurred at about 2pm on that day when the respondent was driving his employer's Ford motor vehicle south along the New England Highway Kankool near Willowtree. The conditions were wet, the road was icy, but the traffic, including the respondent's vehicle were driving in the dry tyre tracks of preceding vehicles. The respondent was travelling at about 80-90 kph. 5 The judge found that as the respondent rounded a sweeping bend of the road to the right to cross a wide creek, he noticed a piece of metal lying in his lane approximately three feet from the centre line. The respondent reckoned he was only 20-30 metres from the metal when he first espied it. He described it as an "I" section about 15 inches long. He said it was hollow about two inches by one inch. It was coated with red metal primer. It was lying at about 30 degrees to the respondent's line of approach and located at the point where the road begins its curve. 6 The judge accepted that as soon as he saw the metal, the respondent began to take evasive action. It is not necessary to describe in detail what he did, but the evasive action included swerving. The respondent felt a loud bang at the back, he found his car would not respond to his steering, he went sideways across the road into oncoming traffic. He crashed into an oncoming vehicle and then crashed into an embankment suffering considerable injury. 7 I should add that the respondent also said in evidence which did not appear to be challenged that the metal was shiny at the end where it had been cut. 8 The respondent pleaded that an unidentified motor vehicle had, during its operation, dropped the piece of steel on the road and that after due inquiry and search, the identity of that vehicle could not be established. Thus the appellant was liable for the negligence of the unidentified vehicle. 9 The appellant did not admit what is in the preceding paragraph, denied negligence and alleged contributory negligence. 10 Her Honour basically accepted the respondent's case and found no contributory negligence. 11 It must be remembered that her Honour was trying an action against the Nominal Defendant. Authority makes it clear that a plaintiff so suing is pursuing a new statutory cause of action, which, at the relevant time was contained in s 28 of the Motor Accidents Act 1988 (identical to s34 of the Motor Accidents Act 1999). Under that section, it is necessary for the plaintiff to establish that his or her injury has been suffered as a result of the fault of the operator of an unidentified motor vehicle and that he or she has made due search and inquiry for the identity of the motor vehicle that caused the injury; see Blandford v Fox (1944) 45 SR (NSW) 241. 12 The notice of appeal complained that her Honour had erred in finding that there was a piece of metal lying on the road and she had further erred in finding that the presence of the metal caused or materially contributed to the respondent's injuries. It was also said that her Honour erred in finding that the presence of the piece of steel was a result of the use or operation of a motor vehicle and in finding by implication that the respondent's injuries were the result of fault of the driver of that motor vehicle. 13 The notice of appeal also challenged the conclusions (a) that the respondent had conducted due enquiry and search; and (b) that the respondent was not guilty of contributory negligence. 14 The appellant also complained that that her Honour had failed to give adequate reasons for accepting the respondent's case or for making the key findings in the case. 15 The result of her Honour's determination was a verdict for the respondent for $355,743.53 and costs. There is no appeal on quantum. 16 The appeal books are voluminous. They reproduce the copious medical evidence. We were glad to be reassured by Mr Watson that the cost of this wasted material would not be charged to the client, or, if his client succeeded in the appeal, to the respondent. 17 Her Honour heard the evidence in the case for five consecutive days, 16-20 June 2003 and then heard submissions in September 2003. 18 So far as the case on liability is concerned, the respondent called only his own oral evidence, though some of the evidence of Dr Phillips was peripherally relevant to the issue of liability. The appellant called the oral evidence of Senior Constable Junor and of three motorists who witnessed the accident, Mr Peters and Mr Clydesdale who were travelling south (the latter immediately behind the respondent) and Mr Miles who was travelling north. 19 No witness other than the respondent ever saw any piece of metal on the road at all. However, her Honour said at Red 37S that, whilst the piece of metal had not been found, there was no evidence that anyone has searched for it. 20 Furthermore, the respondent made no mention of the piece of metal to the police until late November 1996, three months after the accident. 21 The judge noted at Red 35P that the defence case was that the respondent was an unreliable witness and was fabricating the evidence about the piece of metal. She also noted the defence submission that there had not been due enquiry and search. 22 Her Honour made her principal finding of fact at Red 36W-37H when she said: "I am satisfied on the evidence as it is set out above that it is more likely than not that Mr Genn did see a piece of metal of the type he described and that he swerved to avoid it. I believe Mr Genn to be a credible witness. I am also satisfied that the evidence of the other witnesses present on the occasion supports his version of events, or at least does not contradict his description of events. All who saw the incident agree that Mr Genn first steered to his left and then swerved more suddenly to the right, then lost control of the car. The evidence is consistent with him swerving to avoid a piece of metal on the road." 23 Her Honour then went on to consider whether there was sufficient evidence to find that the piece of metal came from a motor vehicle and the matter of due enquiry and search. 24 On the first matter, she was comforted by two decisions of the Full Court of the Supreme Court of Victoria, Incorporated Nominal Defendant v Kemp (16.3.1961 unreported) and Incorporated Nominal Defendant (Victoria) v Knowles [1987] VR 138; (1986) 4 MVR 174 in each of which it was held that it was appropriate to make a finding that a piece of wood lying on the road was the cause of the accident and that such wood had fallen from a motor vehicle. Her Honour acknowledged that the present case was not as strong factually, but said at Red 38I that the description of the metal, its style, size and the location of the metal near the centre of the road assists in establishing that it was unlikely that it came to lie on the road for any other reason than it had been dropped from a motor vehicle. She discarded what she considered as the only alternative explanation, that the metal had been left by workmen, as mere speculation. 25 She held that as the recollection of the piece of metal only returned to the respondent in November 1996, it was then too late to do anything more about search and that there had been sufficient search and inquiry to satisfy the statute. 26 As to contributory negligence, her Honour simply said at Red 38P, "I do not believe that there is any evidence of contributory negligence on Mr Genn's part". She went on to say that the allegations of failing to keep a proper lookout, failure to keep his vehicle under control and failure to steer the vehicle so as to avoid a collision had not been made out. 27 It is put that the series of errors stated in the notice of appeal entitles this Court to intervene and to make its own determination of the factual material and enter a verdict for the appellant. The respondent seeks to uphold the decision, but, if the Court were to find that it has been vitiated by error, the parties are content for this Court to substitute its own decision. 28 Before commencing my review of her Honour's findings I need to state that I am, of course, aware of strictures such as are contained in Abalos v Australian Postal Commission (1990) 171 CLR 167. However, little stress was put on such matters during the oral argument. 29 Appellant's counsel submitted that the crucial finding in the judgment, which I have set out in para 22 of these reasons, is flawed. 30 The main point of the submission is that there were a series of objective factors which supported a finding that there was no piece of metal on the road which were not considered by her Honour. These included the respondent's first version of the accident to the police and his worker's compensation claim filed on 9 September 1996. 31 The evidence clearly shows that the respondent was amnesic after the accident and that it took some time for his memory to return. Naturally, the respondent recovered his memory in a gradual process. He was discharged from hospital on 13 September 1996. 32 The respondent saw Mr Glancey, a psychologist on 26 October 1996. He told Mr Glancey he had no memory of the accident. 33 However, in his claim for worker's compensation made 9 September 1996, (Black 59), the respondent declared when asked how the accident occurred, "Driving-Lost Control- Fishtailed down road (Possibility of black ice on the road) swerved across to wrong side of road and collided with 4 wheel drive (left hand/passenger side took impact)." He noted the cause as "Unknown-Driving Conditions possibly". 34 In his statement to the police made 23 November 1996 (Black 126-8), the respondent said that he could not recall any debris on the road before the accident and that he thought the problem was caused by a blown tyre at the back. 35 The respondent gave evidence that his memory of what happened came back to him gradually. He said in evidence that his recollection had recovered about three or four months after the accident. Her Honour noted that it had returned before he completed his claim form in February 1997. 36 Needless to say, the circumstances which I have related brought about long, testing, cross-examination of the respondent on the accuracy of the metal on the road theory, a cross-examination that lasted two days. However, the respondent's evidence was not affected by this ordeal. 37 The medical evidence suggested that the respondent may have had some aid to recover his memory. It was never suggested, even on appeal, that this affected his credibility. Rather the challenge was to the reliability of his memory. 38 Appellant's counsel submitted that her Honour gave no reasons for her belief in the respondent's credibility and that she did not evaluate the material which I have digested above. 39 I wholeheartedly agree that her Honour should have provided some reasoning to support her finding that the respondent was a credible witness particularly as this was perhaps the key finding in the case. 40 However, her Honour having to judge the credibility of the respondent must have taken into account the problems I have digested, she saw the respondent in the witness box for a long period and heard him survive the cross-examination and she accepted him as a credible witness. It is thus difficult to attack her finding that the respondent should be accepted when he put up the metal on the road was the cause of the accident. 41 Mr Watson then put that her Honour's finding that the other witnesses to the accident did not contradict the respondent's evidence was tendentious. 42 However, even though Mr Miles did not notice the swerve to the left, the main evidence of the four witnesses did not differ substantially from that of the respondent, though it is incontestable that none of the four witnesses saw any piece of metal. 43 Mr Watson puts that the fact that the witnesses agree with the respondent on the course that his vehicle took is valueless as it is explicable on numerous alternative bases, not the least of which is a simple loss of control of a car on a bend on a rainy day. 44 However, the statement that her Honour made was one which she was entitled to make. 45 Thus the finding that there was a piece of metal on the road must stand. 46 The next matter to consider is whether the piece of metal fell from a motor vehicle onto the roadway as a result of the fault of the operator of that vehicle. 47 Her Honour put some store on the style, size and location of the piece of metal as described by the respondent. Mr Watson puts this as mere speculation. However, the fact that the metal appeared to be manufactured, primed and cut, was, in my view a material factor for the judge to consider. 48 I have resisted the temptation of saying that there was a piece of manufactured metal on the road, it was the countryside away from town and industry, there was no evidence of any nearby roadworks, ergo it was more likely than not that the metal fell from a moving vehicle. These factors are significant, but not necessarily enough. 49 The trial judge seemed to consider that the only viable alternative suggestion was that the metal was left by workmen which she regarded as mere speculation. 50 Mr Watson put to us the hypothesis that there may have been many possible reasons as to how the metal came to be on the road. The only substantial reason was that it may have been lying around for some time and knocked into a dangerous position by other traffic. 51 However, this theory is weakened by the shiny end of the metal. Also, as Mr Neil has submitted, this theory still postulates the deposit of the metal by an unidentified motor vehicle. 52 Mr Watson referred the trial judge and ourselves to a passage in the judgment of Dixon CJ in the well known case of Jones v Dunkel (1959) 101 CLR 298 at 305 where he said that in the present sort of case, the plaintiff must fail unless he proves facts which go beyond presenting the court with choices from which it can make guesses and which provide "a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied." 53 In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 133 Gleeson CJ and McHugh J reminded their readers at [22] that, even where the doctrine of res ipsa loquitur is raised, the plaintiff still bears the onus of proof of negligence. Hayne J at 175 [151] noted that judges must be careful not to reverse the onus of proof by making too wide assumptions as to the cause of the accident. 54 The question as to what was the source of the metal on the road is troublesome. Her Honour's treatment of the question was, with respect inadequate. However, in the absence of any other viable hypothesis, her Honour was justified in finding that it was more likely than not that the metal came from a vehicle using the road, both from what she said and what I have set out in para 48 of this judgment. In short, of all the possible scenarios, all are so unlikely except the view that the metal came from a motor vehicle that, on the balance of probabilities, that view should be accepted. 55 However, even more troublesome, and, to my mind the key matter debated on this appeal is the question of whether the metal came onto the road with the fault of the operator of the unidentified motor vehicle. 56 It is to be noted that her Honour made no express finding that the presence of the metal on the road was a result of the fault of the operator of the unidentified motor vehicle. 57 In Johnson v Nominal Defendant [2003] NSWCA 153 this Court made it abundantly clear, if it were not so previously, that a plaintiff must prove fault in the operator of the unidentified motor vehicle to succeed in an action against the Nominal Defendant. 58 Mr Neil submitted that the facts and circumstances of Johnson's case, particularly the fact that the trial judge there declined to draw inferences, whereas Gamble ADCJ did draw inferences, makes the decision distinguishable. This is so, but the basic principle set out in the previous paragraph remains. 59 The respondent says that it is true that her Honour did not expressly find fault in permitting a piece of metal to fall onto the roadway. However, it is submitted that the matter is so obvious that it need not be expressed. No rational inference is open other than fault in the operator at least in failing to secure a load. 60 I agree with the appellant's submission that it cannot be said that it was obvious that the metal must have got onto the road by the operator's fault. 61 As the respondent notes, the trial judge was alert to this point as she sets out the elements of the tort at Red 35E, though referring to the 1999 Act. The appellant says, however, that, whilst she was aware of the issue, the judge never dealt with it and indeed never refers to it again and that this point alone merits the intervention of this Court. 62 Unfortunately, I agree with that submission. Its validity is reinforced by the fact that her Honour gave no reasons for her decision on the point, which was a vital point in the trial. 63 I say "unfortunately" as the result may be that there will have to be another five day trial in the District Court, unless the Court exercises its discretion under s 107 of the Supreme Court Act. 64 If I had to re-examine the evidence for myself, I would have reached the same conclusion as her Honour reached. 65 Mr Neil cited to us Barwick CJ's decision in Nominal Defendant v Haslbauer (1967) 117 CLR 448, 452 and GIO v Best [1993] Aust Torts Rep 81-209 pp 62096-8 and submitted that the present was a case where the plaintiff was entitled to rely on inferences that can be drawn where circumstances are such that in the ordinary course of human affairs, an occurrence is unlikely to occur without there being lack of care. 66 Mr Neil put that the Victorian cases cited in para 24 of this judgment plus the Victorian decision of Bellizia v Meares [1971] VR 641 showed that there was a tendency for courts in the present type of case where something appears to have fallen from a vehicle, to apply thinking analogous to the res ipsa loquitur cases. 67 On this last submission, I agree with Mr Watson's submission that no such general principle can be gleaned from those cases. However, it is true to say that courts do approach the problem by applying common sense and that if cause is otherwise unidentified and the occurrence tends not to occur without carelessness, the court will tend to favour a verdict for the plaintiff. Whether it does so in any particular case is a matter for the weight the circumstances have in the mind of the adjudicator. 68 To my mind, the circumstances and the lack of a contrary convincing explanation indicate that it was more likely than not that the metal fell to the road from a vehicle where the operator did not secure the load or properly maintain the vehicle. 69 The next issue may be described as due inquiry and search. 70 The appellant says that in fact there was no search for the piece of metal at all. It says that at least as soon as the respondent recovered his memory, he should have organized a search for the metal. He should also have enquired from the volunteers who assisted clearing the debris from the accident as to whether the piece of metal had been seen. However, he did nothing. 71 To my mind it was not the search for the metal that needed to be made, it was search for the identity of the motor vehicle which allegedly dropped the metal. This point is made by the respondent's submissions and must be upheld. 72 It is clear law that there is no need to pursue a useless or futile search; see eg Blandford v Fox (1944) 45 SR (NSW) 241 and Harrison v Nominal Defendant (1976) 50 ALJR 330. 73 I agree that, by the time the respondent recovered his memory, and that was the first moment when the respondent could have appreciated that a search was necessary, the trial judge was justified in finding that inquiry and search would be futile. 74 As to contributory negligence, the appellant says that the judge was in error in saying that there was no evidence of the respondent's negligence. It is put that the respondent did not steer his vehicle so as to avoid a collision. Too many other drivers were able to pass safely to suggest that the respondent's negligence had no role. 75 The respondent says that her Honour was entitled to take the view that there was no contributory negligence. 76 Unfortunately, however, her Honour's reasoning on this aspect of the case, and indeed on other aspects as well, was very sparse and the appellant submits that it is not possible to glean what considerations she took into account when making her "no evidence" finding. 77 The respondent has two answers to this. First that this was because the case was fought almost solely on the point that there was no metal on the road and that it was never put that his actions were otherwise careless. The second is that by "no evidence", her Honour must be taken to mean that the appellant had not put material to her which would enable her to find a lack of duty of self care. 78 As to the first of these so called answers, it seems to me that the cross-examination of the respondent at Black 298 does raise this issue. 79 As to the second answer, I must confess I find it difficult to construe the plain words "no evidence", which have an accepted meaning, in the restricted way Mr Neil suggests. 80 I am also concerned that her Honour did not attempt to make an analysis of the big bang that the respondent says he heard. It seemed to me that what the respondent was saying was that after he heard the big bang, he was just not able to do anything in and about steering the car. This does not appear to have been challenged. 81 Indeed, the scenario that the respondent presented was of a big bang, which he first thought was a blown tyre was the event which was the last factor in the cause of the accident. Whether the big bang was the metal being hit by the rear wheels of the respondent's car and flying up to hit the vital works underneath the car or otherwise was not explored. 82 If I were to consider the issue of contributory negligence afresh, I would consider that there was insufficient material to justify a finding of contributory negligence. 83 The decision below is so flawed that it cannot stand. In respect of the issues on which it is flawed, there does not appear to me to be any advantage that the trial judge had that would not be available to the appellate court. 84 This means that the Court should reassess the evidence itself. 85 I have already made it clear that, for the reasons I have given, I would reach the same result as the trial judge. 86 It is thus unnecessary to consider in depth the criticism that her Honour failed to give adequate reasons for her conclusions. I will thus content myself with this comment. It is not required of trial judges to provide detailed reasons for every intermediate decision in the case. However, there must be sufficient in the reasoning provided to give the parties and this Court on appeal a clear indication as to what was accepted and why. My own view is that the present judgment falls short of this standard. 87 Thus, I would propose that the appeal be dismissed with costs. 88 KIRBY J: I agree with Young CJ in Eq. ******************* Last Modified: 09/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.