Carter v Gordon & Anor [1992] QSC 246

I : I .; ... .. '· .... ... -~ -:·: ... / •\ I ~ .· .. :·; TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State ReP?rting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No 111 of 1987 PETER JOHN CARTER and THELMA GORDON and MURRAY GORDON TOWNSVILLE .. DATE 12/6/92 JUDGMENT 1 F;E\ 1 lSE£) C()P!ES JSSLJED St:!'t;.; Report!no B~irc;:u Plaintiff First Defendant Second Defendant -- 1 of 9 -- 120692 JUDGMENT HIS HONOUR: I find the facts of this case quite amazing. Even after more than 25 years' association with the law, I would not hav:e.dreamed this particular set of facts possible. To adopt slightly an expression used by counsel, the plaintiff's simple proposition is that a car owned by the ~ . . . first defendant shot him in the hand. I $hould record at the outset that on 28 March 1984 such an inciqent did occur which occasioned significant damage to the plaintiff '.s left hand. The parties have agreed that if liability is established, he is entitled to recover by way of damages the sum of $185,000 including interest to date. The only issue litigated before me was that of liabil~ty. With respect to that, I should record that the plaintiff's case was put ~n the basis of negligence~ ~ ~ it was not contended that the cir~umstances in any way gave rise to strict liability. The plaintiff was a qualified motor mechanic employed by Les Matheson Motors, who conducted a garage at Charters Towers Road, _Townsville. On 28 March 1984 an XP Falcon station wagon, registration number .476 NHF, was taken to that garage for servicing. The plaintiff was asked to carry .out the work, and he was informed by his superiors that the owners were complaining of a leaking exhaust and also that there was .a nois.e apparent when the brakes were applied. The plaintiff took the vehicle for a test drive and also loo~ed under the bonnet of the vehicle whilst the engine was running. In the 2 0 0 0 0 -- 2 of 9 -- ;'-.... \. 120692 course of doing all that, he confirmed that there was a leaking exhaust and that t:here was a noise apparent when the vehicle was under braking. He then proceeded to raise the vehicle on the hoist and began looking for possible causes for the noise that he had heard. He then saw a foreign object which was jammed between the right-hand wishbone and the chassis of the vehicle. The precise point where that object was located ~·.;as indicated by the plaintiff in the photograph which is Exhibit 4. He ( believed that he had found the possible cause of the noise and sought to remove that object with a screwdriver. It would ·not (I budge, so he struck it with a hammer. Unbeknownst to him; he· struck a .22 cartridge, ·which discharged and the 'projectile lodged in his hand. The foreign object was loosened and he was able to examine it . .. It turned out to be a vacuum fitting of a type which is ( normally found associated with the exhaust manifold systems or heating systems of motor vehicles. The fitting has a thread at one end enabling it to be attached to the manifold or engine Slock, and at the other end there was a smboth cylindrical projection over which a rubber hose would be ordinarily placed. Apparently to seal off one end of the vacuum fitting, someone had placed a .22 cartridge through a washer and inserted the cartridge in the fitting at the threaded end. ·It had then been fixed in that position with. silastic material. The plaintiff noticed-immediately after the incident that the fitting was covered in grease and the silas.tic material, and he said that on his observation there was no dirt present-in 3 -- 3 of 9 -- 120692 the grease. I turn now to the evidence as to the m6ior vehicle in question. It was, as I have said, an XP Falcon, and one of the witnesses said that that model came out in about 1966. It certainly was not a new vehicle. The defendants, Mr and Mrs Garden, acquired it·in about July 1979 from a man named Campbell. Campbell was called by the plaintiff to give evidence. He said that he had been the owner of the vehicle for about six months. His evidence does not indicate anything of the vehicle's history between 1966 and 1979. He swore that he never owned a rifle. He was shown the fitting, including the .22 cartridge, and he said that he had never seen them before. No one made any attack at all on his credibility, and the unchallenged evidence is that-he was not responsible foi ·-" Ex 1 ~eing found on the vehicle. Mrs Garden gave evidence, and again her evidence was not challenged. She said that she was the owner of the vehicle; she was primarily the driver of it; and she said that her husband rarely drove the vehicle. That latter statement was not made the subject of any further inquiry. Her evidence also was, and this was supported by the witness Considine, that the vehicle was regularly serviced at Les Matheson Motors. It seems the vehicle was serviced roughly every three to four months. Other evidence does establish that in the Garden household at Blue Water there were available .22 calibre cartridges at some time between July 1979 and March 1984. 4 0 0 0 0 l .I -- 4 of 9 -- ( ( 120692 The negligence alleged in para 10 of the statement of claim is particularised as follows: "(a) placing a live .22 cartridge in the exhaust manifold fitting of the motor vehicle; (b) failing to warn the plaintiff that a live .22 cartridge had been placed in the exhaust manifold fitting of the motor vehicle." As I have already said, it was not contended that strict liability was relevant here. The onus is on the plaintiff to prove negligence on the part of the defendants. Mr Pope for the plaintiff also conceded that the circumstances of the case did not permit him to rely on the principle of res ipsa loquitur. 5 10 20 30 40 50 60 -- 5 of 9 -- 120692 counsel for the plaintiff submi-tted that there were two hypotheses open on the evidence as to how the fitting came to be lodged where it was in the motor vehicle: firstly, it was thrown up from the road; secondly, that it fell from the engine compartment either with or without human intervention ... Mr Pope argued that I should reject the hypothesis that the fitting was ·thrown up from the·road. He relied on two pieces of evidence in support of his submission in that ·regard: . firstly, there was the evidence of the plaintiff that it was unlikely for the fitting to lodge where it was if it had been thrown up from the road; ~nd, secondly, there was no dirt on it when it was examined on 28 March 1984. Whilst I can see the reason for the plaintiff saying that it is unlikely that it would have lodged where it did by being thrown up ·_from the road, the evidence does suggest that it is not impossible that it could have got there in that way. so far as the absence of dirt is concerned, two observations need to be made: firstly, the evidence of both the plaintiff and Considine was the result of a relatively quick visual examination shortly after the incident occurred. Whilst it may well be·that there was no obvious road diit present, that does not necessarily mean that there was ~one at all there, the presence of. which may have been established by some more detailed examination. The second observation is that it .is .quite possible that the fi't'ting fe.ll -from another motor vehicle on to a bitumen road and was then very shortly afterwards thrown up by this vehicle and it lodged where it 6 0 0! 0 -- 6 of 9 -- /·- 120692 1 .-··· did. If that happened then it would not be surprising for there to be little or no roa.d dirt on the fitting . Mr Pope c6nceded . that the plaintiff could not succeed if the fitting-had been thrown up from the road and lodged where it did. He conceded in those circumstances there would be no basis for making a finding of negligence on the part of either Mr or Mrs Gordon. He also conceded - and this was inevitable in the light of Mrs Gordon's evidence - that I could not maKe a finding that Mrs Gordon ( was responsible for inserting the projectile. into the fitting so that the second hypothesis, that of a fall from ( the engine, had.to involve conduct on the part of someone other than Mrs Gordon. Ultimately, counsel for the plaintiff conceded that the plaintiff must fail unless I was satisfied on the balance of .• probabil~ty that Mr Gordon was responsible for carrying out running repairs which involved the insertion of the cartridge into the vacuum fitting. The question, therefore, becomes whether or not the plaintiff has discharged the onus of satisfying me of that on the balance of probabilities. The facts which were·said to support such a finding were that Mr Gordon had access to .22 calibre ammunition, the ca.r had been in the Gordon's possession for five years,and it was unlikely that the fitting hadbeen in its jammed position prior to their acquiring it;. In othe~ words, he said it was more·likely· than not that it had got there within the period of the 7 -- 7 of 9 -- 120692 Gordon's ownership. That was r~inforced, it was said, because of the fact th~t the vehicle was serviced regularly and reference was made to th_e fact _tha·t the plaintiff quite readily spotted the foreign object when he raised the vehicle on the hoist. '' ' Mr Considine, however, was not certain as to whether or not it was the sort of thing that would have been noted on an ordinary service.. Certainly it has to be conceded that the plaintiff here was looking for the cause of a particular noise. As I say, the question 'l.vhether ·those facts . support my drawing the inference that Mr Gordon was the one who was responsible. After giving the matter anxious consideration, I have come to the conclusion that the plaintiff has not, in the circumstanGes, discharged that particular onus. There is just no evidence at all of Mr Gordon's expertise in this regard. The evidence is that he drove the vehicle only rarely. There is no evidence, for example, that he took the vehicle into bush situations which might give rise to the necessity for carrying out temporary running repairs; there is no evidence that he had any knowledge or understanding of motor vehicles or was in the habit of carrying out repairs or tinkering with the motor vehicle. If there was any such evidence, that may have made it easier to draw the inference but in the absence of any evidence along those lines it seems to me that the inference that the plaintiff asks me to draw is no more probable than, for example, the inference that it was thrown up from the road. 8 0 0 0 0 I --·-·-····--···- -- 8 of 9 -- (' 120692 I should also say that the projectile was inserted into the threaded end of the fitting. bne would have thought thaf if it became necessary to carry out running repairs it would have been inserted in the other end to seal off the hose end from the engine block. If that had happened it would be feasible to think that subsequently the fitting was removed to be replaced by a new one and that when that happened it fell into the position on the wishbone. As the bullet was in the other end that does, if anything, tend to support Mr White's 10 proposition that someone was trying to make a mini gun out of - . 20 the particular object; in which case it would be more probable that the item was thrown up from the tyres of the vehicle and lodged where it did. One has only to go through these various hypotheses, in my view, to see that one is speculating as to what happened and 30 how and when the object came to be lodged where it was ultimately seen by the plaintiff. There are, as I have indicated, a number of hypotheses and in all the circumstances I cannot persuade myself that on the balance of probability I can draw the inference which Mr Pope asks me to draw: namely, that Mr Gordon, the second defendant, was responsible for running repairs which included the insertion of the cartridge into the vacuum fitting. Therefore, with some regret, I have to find that the plaintiff has not established negligence entitling him to succeed and the action will therefore be dismissed with costs on the Supreme 'Conrt Scale. 9 40 50 60 -- 9 of 9 --