Edwards v Nominal Defendant [2006] QCA 475

SUPREME COURT OF QUEENSLAND CITATION: Edwards v Nominal Defendant [2006] QCA 475 PARTIES: MELINDA LEE EDWARDS (plaintiff/appellant) v NOMINAL DEFENDANT (defendant/respondent) FILE NO/S: Appeal No 4386 of 2006 SC No 9049 of 2002 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 November 2006 DELIVERED AT: Brisbane HEARING DATE: 20 October 2006 JUDGES: Williams JA, Mackenzie and Fryberg JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed with costs CATCHWORDS: TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the appellant was injured as a result of the negligent driving of an unregistered motor vehicle and sued the respondent – after a trial, the appellant was found to have contributed to her injuries and liability was apportioned 50/50 – whether the appellant actually contributed to her own injuries – whether the apportionment of negligence was reasonable – whether the assessed quantum of damages was too low Evidence Act 1997 (Qld), s 92 CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458, applied Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied Pennington v Norris (1956) 96 CLR 10, cited Podrabersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, considered Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, considered COUNSEL: J W Lee for the appellant -- 1 of 7 -- 2 A M Daubney SC, with R Dixon and P J McCafferty for the respondent SOLICITORS: Keith Scott & Associates for the appellant WHD Lawyers for the respondent [1] WILLIAMS JA: The appellant sustained personal injuries on 22 December 1995 and alleged in the proceedings that those injuries were sustained as a result of the negligent driving of an unregistered motor vehicle. In consequence she sued the respondent. After a trial it was held that both the appellant and the driver of the unregistered vehicle were negligent, negligence was apportioned 50/50, damages were assessed in the sum of $174,000, and in consequence the appellant recovered one-half of the assessed damages, namely $87,000. The appellant has appealed challenging the finding that she was negligent, the apportionment, and also the assessment of quantum. [2] On the date in question the appellant was aged 15, as was the principal witness supporting her on the issue of liability, namely Dianna Grimes. The driver of the unregistered vehicle, Gregory Pain, was then aged 18. Those three young people were mutual friends, and on the occasion in question Pain drove the appellant to a party at the residence of Grimes. The incident in question occurred on the roadway outside the residence of Grimes. [3] There is no doubt that as a result of the incident the appellant sustained a head injury. In his reasons the trial judge recorded that, in a motor accident personal injury notice of claim signed by the plaintiff's mother on 4 July 1996 in the presence of the plaintiff, it was stated that the plaintiff had "no independent recollection of the accident but has been informed of circumstances surrounding the accident by Dianna Grimes who witnessed the accident." At the trial the appellant was unable in her evidence to describe an incident resulting in her being injured. The learned trial judge clearly proceeded on the basis that the appellant was unable to give any precise evidence as to the circumstances in which she came to be injured, and he was clearly entitled to do so. [4] Dianna Grimes gave evidence at trial and was cross-examined. In about January 1996 she had made a statement about the incident to a Constable Dux and had signed the pages in his notebook recording her statement (referred to in the judgment as her record of interview). Dux was called by the respondent and reference was made to those signed notes. Then on the application of counsel for the appellant those signed notes were tendered as an exhibit. Further, Grimes gave evidence in the Magistrates Court when it was dealing with certain charges brought against Pain arising out of the incident and the pages of her evidence given on 5 June 1997 were tendered at this trial by counsel for the appellant. Thus the trial judge had available to him a statement by Grimes made about a month after the incident, sworn evidence by Grimes given about 18 months after the incident, and her evidence given at the trial in March 2006. [5] Pain died on or about 21 January 2004. In September 1996 he signed a lengthy statement relating to the incident and his signature on each page of that statement was witnessed by his father. It was accepted that the statement had been prepared at the request of a loss assessor acting for the respondent. The statement is mostly in typed script, but there are various additions in handwriting. Those additions are not initialled. It is not clear when and how those additions were made, though the -- 2 of 7 -- 3 affidavit of Pain's father says that the exhibit "is a true copy of a statement offered by my son … at or about September 1996." Counsel for the respondent submitted that the affidavit indicated that the document as amended was that signed by Pain, but that is not entirely clear. However, the issues raised by the appeal can be resolved without recourse to any of the handwritten additions. [6] Put in broad terms the case for the appellant, based on passages in the evidence of Grimes, is that Pain was driving the vehicle in question negligently around the cul- de-sac and in the course of doing so knocked down the appellant as she stepped off the footpath. The case for the respondent, primarily based on the written statement of Pain made admissible by s 92 of the Evidence Act 1997 (Qld), was that the appellant was skylarking and jumped on the bonnet of his moving vehicle; when he braked the appellant fell to the roadway and was injured. In that statement he also claimed that shortly before the incident occurred he had allowed the appellant to drive the vehicle around the cul-de-sac. [7] Against that background the critical findings made by the trial judge were as follows: "[47] I find the version of events set out in Mr Pain's statement generally more probable than the recollection professed by Ms Grimes. She did not mention, in her record of interview, anything about the vehicle travelling on the wrong side of the road or fishtailing as it approached her residence. In that account, she reports Mr Pain as urging her to take the plaintiff into the house. She did not mention that in her oral evidence either. [48] If the plaintiff's injury had occurred as a result of her accidentally stepping into the path of the car as it moved off, the conduct of Ms Grimes in not wanting to summon an ambulance or obtain assistance from adults would be curious indeed. Although only 15 years old, one can infer from her evidence that she had received training in resuscitation and was likely to have been aware of the risks involved in moving persons with head injuries. On her version of events, her friend had stopped breathing and had commenced breathing imperfectly after resuscitation. Nevertheless, Ms Grimes was content to have the plaintiff driven off to hospital by a reluctant Mr Pain. [49] Mr Pain's admission that he had let the 15 year old plaintiff drive his vehicle seems to me to be plausible. I consider it unlikely that he would have invented background of this nature, particularly as it implicated him in the commission of an offence. His version, or at least the version of events which I accept, is consistent with his subsequent conduct in not taking the plaintiff to her mother when he dropped her off at her home later that evening. If the plaintiff had been injured when she stepped into the path of his car as he drove off, there would appear to be little reason why he would not have wished to explain that to Mrs Edwards. [50] It is probable, in my view, that all three participants in the drama had been involved in some high spirited conduct immediately prior to the accident. Mr Pain described the plaintiff as "laughing -- 3 of 7 -- 4 and mucking around … being bubbly and making jokes". He also described her as being "in a very effervescent and bubbly mood" and "showing off". That was after he let her drive the vehicle "a short distance just in and around Argonaut Street". I find it probable that the plaintiff, being somewhat excited by the other activities just mentioned, jumped onto the bonnet of the vehicle as it commenced to move off. [51] It is improbable in my view that, under the influence of panic, Mr Pain, although having sufficient presence of mind to brake and stop the car, accelerated again whilst panic stricken. The car was moving quite slowly on his version of events. The plaintiff had been behaving in a high spirited fashion and although her jumping onto the bonnet may have occasioned surprise, it is unlikely that it would have produced the panicked reaction reported by Mr Pain. Given the conduct of the participants immediately prior to the incident, it is more likely that Mr Pain continued to drive the car after being aware that the plaintiff was on its bonnet. He could hardly have failed to notice her presence immediately after she was positioned there. [52] It may be that the plaintiff fell when Mr Pain braked but his version of events is that he braked for the second time after she fell. To conclude that the accident happened when he braked immediately on seeing her on the bonnet would be to speculate as to the likely course of events." [8] The most critical finding is that made in the first sentence of the passages quoted; the version of events given by Pain was generally more probable than the recollection professed by Grimes. Underlying that finding are essentially two propositions. Firstly, Grimes was not a credible witness and her evidence should be rejected. Secondly, the account given by Pain was probable, and had some objective support. [9] When the three versions given by Grimes as to what happened on the night in question are considered it is obvious that there are serious inconsistencies as between the statements. Some of those are specifically mentioned by the learned judge in his reasons. But perhaps even more significantly there are serious improbabilities in her evidence. Grimes was so concerned by what she perceived to be serious injuries that she immediately commenced resuscitation procedures. But despite the fact that her parents were in the house nearby, and despite what she admitted on one occasion were entreaties from Pain to take the appellant into the house, Grimes made no attempt to inform her parents of what happened, nor did she seek to telephone an ambulance. Rather, she insisted that Pain drive the appellant to the hospital. As the judge observed her reluctance to "obtain assistance from adults" was at least "curious". It suggests a desire to cover up what actually happened; the conduct is more consistent with an injury being sustained because the skylarking went horribly wrong. [10] The proposition that the appellant had jumped on the bonnet of Pain's motor vehicle was not something which came to light a significant time after the incident and in circumstances where it might be considered as a rationalisation of events to avoid legal consequences. The appellant's mother took her that night to the Logan -- 4 of 7 -- 5 Hospital and on some three occasions those hospital records, made on that night, refer to the appellant falling off the bonnet of a motor vehicle. Those notes record amnesia on the part of the appellant and it may well be that the notations in question were based on statements made by the appellant's mother. It is unclear, if that be the case, who provided the information to the mother. It could have been Pain; after dropping the appellant off outside her home he went and spoke to the appellant's sister who in turn telephoned her mother prior to the appellant being taken to the hospital. Against that background the mother could have acquired the information in question from something Pain said to the appellant's sister, or, and perhaps less likely because of the amnesia, from something said to her by the appellant. But it is of some significance that on the night of the incident it was recorded at the hospital that the injuries were sustained in a fall from the bonnet of a car. [11] The observations by the learned trial judge on Pain's statement were pertinent. His account of what happened becomes more plausible in the light of the inference drawn from the evidence of Grimes that there was something to cover up about the circumstances in which the appellant was injured. The judge was aware the statement was not tested by cross-examination and that in consequence one had to be cautious about accepting it. The inconsistencies in the statement were not such as to render it totally unreliable. [12] The trial judge, of course, had all the advantages that flow from seeing and hearing witnesses give their evidence and evaluating evidence in the context of the trial as it evolved. Grimes was held not to be a credible witness and a consideration of the transcript does not establish that the trial judge erred in so concluding. [13] The appellant has not demonstrated any error of law in the approach of the learned trial judge to the assessment of the evidence placed before him. The conclusion he reached was clearly open on the evidence. He was not compelled to accept the evidence of Grimes which was the only evidence establishing the central plank of the appellant's case, namely that she was knocked down by a vehicle being driven negligently. Once the evidence of Grimes was rejected, the only remaining evidence relevant to the issue of liability was that contained in the statement of Pain. The trial judge came to the conclusion that it provided a probable explanation of what happened on the night in question and in consequence he acted on it. He was entitled to do so. [14] A real difficulty faced by the appellant is that if the attack mounted by her counsel on Pain's statement is accepted, and then the statement is rejected as implausible, that does not mean that the evidence of Grimes must be accepted. To the contrary, as already noted, the learned judge at first instance was clearly entitled to find her evidence improbable and contradictory so that it could not be acted upon. [15] The onus of establishing negligence is on the appellant and if the evidence from both Grimes and Pain is rejected there is nothing left which could provide a definite basis for drawing an inference on the balance of probabilities that somehow Pain was negligent. At best for the plaintiff there was some evidence that Pain had been driving erratically at an earlier point of time, and the fact that he was the driver of the car which somehow was involved in her being injured. [16] In the circumstances the conclusion of the learned trial judge that the version of events set out in the statement of Pain was more probable and should be acted upon -- 5 of 7 -- 6 has not been shown to be erroneous. Adopting the approach an appellate court should take to findings of fact at first instance as defined in Fox v Percy (2003) 214 CLR 118 and CSR Ltd v Della Maddalena (2006) 80 ALJR 458, it has not been shown that the findings should be set aside. [17] Given those findings it followed that each of the appellant and Pain was negligent and it became necessary to apportion liability. The learned trial judge quoted a passage from the reasoning of Hayne J in Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68 which included a reference to the decision of the High Court in Podrabersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. He then went on to say that by "getting onto the bonnet of the moving car the plaintiff created an inherently dangerous situation". That proposition cannot be doubted. He then referred to Pain's "responsibility as driver of the car" and in doing so referred to his inexperience as a driver. Against that background he apportioned liability 50/50. [18] The appellant asks this Court to vary the apportionment by reducing significantly the degree of contributory negligence attributed to the appellant. Appellate courts have always been reluctant to intervene and disturb an apportionment which involves to some extent an exercise of discretion by the judge at first instance (see, for example, Pennington v Norris (1956) 96 CLR 10 at 15-16 and Anikin v Sierra (2004) 79 ALJR 452 at 460-1). As the High Court said in Podrabersek at 494: "It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination". That court identified the major considerations as being the degree of departure from the standard of care of a reasonable person and the relevant importance of the acts of the parties in causing the damage. In many cases the observation has been made that the driver of a motor vehicle has a far greater capacity to cause damage and therefore, ordinarily, should bear greater responsibility if injury was caused to a pedestrian. But the comparison here is not with a pedestrian walking on the roadway, but with the act of a person suddenly jumping onto the bonnet of a moving car. The conduct of the appellant, as found by the learned trial judge, created an inherently dangerous situation, and, in my view, it cannot be said that the learned trial judge was wrong in apportioning liability equally. There is no basis on which this Court should interfere with that apportionment. [19] That leaves the challenge to the assessment of quantum. [20] Neither counsel added substantially to what was said in the written outlines of argument in relation to the issue of quantum. In broad terms the appellant complained that the learned trial judge did not attribute all of the symptoms of which she complained to the injuries sustained in the incident. However, it is clear that the judge accepted and acted upon the evidence of Drs Reddan, Cameron and Weidmann. Again it has to be said that the learned trial judge was entitled to do so. There was ample support in those medical opinions for findings that the appellant's migraine headaches and symptoms with the right knee were not consequences of the injuries sustained in the incident. The learned trial judge found that the appellant had sustained minor psychiatric impairment affecting concentration, memory and motivation, but he did not accept that she had undergone a personality change to the extent submitted on her behalf. Again that conclusion was clearly open given all of the medical evidence. -- 6 of 7 -- 7 [21] The appellant has not demonstrated any error in the assessment of quantum such as would warrant this Court intervening. [22] It follows that the appeal should be dismissed with costs. [23] MACKENZIE J: I agree with Williams JA’s analysis of the relevant issues in the appeal. I agree that the appeal should be dismissed with costs. [24] FRYBERG J: For the reasons given by Williams JA, the trial judge, Muir J, was entitled to reject the evidence of the witness Grimes. [25] It would have been open to his Honour also to reject the self-serving parts of the statement made by the driver of the vehicle, Pain; there was substantial evidence suggestive of its unreliability. To some extent his Honour did so. Had he gone further, there might have been insufficient acceptable evidence to sustain a verdict for the plaintiff. She might have failed to satisfy the onus of proof which lay upon her. In my judgment it was open to his Honour to make the findings which he made. [26] The defendant concealed the fact of Pain’s death from the plaintiff and her advisers until after the case had closed. I agree with the trial judge's description of the conduct of the defence as “in effect mount[ing] something of an ambush”. Counsel was caught off guard and off balance. I expect the plaintiff's case would have been conducted differently, and probably more beneficially, had the course which the defence ultimately took been anticipated. For example, more might have been ascertained about the circumstances in which a loss assessor obtained two different versions of Pain’s statement, the second of which markedly improved the first by hand written additions. However the judge afforded the plaintiff adequate opportunity to recover the situation, and no complaint is made of lack of due process. [27] On the questions of contributory negligence and quantum, I agree with the reasons of Williams JA. [28] The appeal should be dismissed with costs. -- 7 of 7 --