Mansi v O’Connor & Ors [2012] QSC 336

In a decision turning on the determination of a number possibilities as to the actual identity of the real tortfeasor, Her Honour’s discussion of the relevant legal principles is helpful.

Ann Lyons J

[1] On 23 July 2007 the Plaintiff was injured when his motorcycle hit a quantity of concrete slurry, which had discharged from the back of a cement truck as it went around a corner, in the vicinity of the intersection of Hope Island Road and the Old Pacific Highway at Oxenford. The Plaintiff’s injury occurred after he lost control of the motorcycle as it slid in the concrete slurry. He fell from his motorcycle and suffered a fracture to his right wrist. He also received some other superficial injuries. He also maintains that he injured his lumbar spine.

[4] The Plaintiff gave evidence that around 4.00 pm on 23 July 2007 he was riding his Ducati motorcycle behind a large cement mixer with a Readymix badge and that as he was following the truck around the corner a quantity of concrete slurry fell from the back of the truck onto the road. This caused him to lose control of his motorcycle and have an accident. The truck which spilt the concrete did not stop and its registration number was not obtained by any of the witnesses.

Relevant legal Principles

[27] In this case, given the evidence of the witness Mr Duncan and the Plaintiff, as well as noting the injuries he suffered, I accept that the accident occurred in the manner described. In my view, there is no doubt that the discharge of slurry was caused by the Readymix cement truck as it went around the corner around 4pm on 23 July 2007. The Plaintiff was then injured as a result of losing control when the motorcycle he was riding slid out from under him as he came around the corner and hit the slurry which had been discharged.

[28] Unlike the position in Muller v Cherrie & Anor,[10] where Atkinson J held there was no evidence properly capable of establishing that the Defendant had driven negligently, I consider that there is evidence in this case that a driver of the concrete truck allowed concrete slurry to discharge from his truck onto a busy roadway used by members of the public. Her Honour referred[11] to the statements of Dixon CJ in Jones v Dunkel:[12]

“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind…”[13]

[29] In my view the Plaintiff has proved that it was more likely than not that the accident occurred as a result of the negligence of the driver of the Readymix cement truck which came through the intersection around 4pm on 23 July 2007. The available inference is that the concrete slurry spiled onto the roadway due to the negligence of the driver. He was responsible for the load he was carrying and had to ensure that none of the product he was carrying left the truck and caused injury to others. He was required to take steps to ensure there was no discharge. There was a discharge. It was entirely foreseeable that a motorist or road user would be injured should there be such a discharge. It was also entirely foreseeable that road user would be injured in the manner described by Mr Mansi.

[30] Accordingly, I am satisfied that the negligence of the driver of that Readymix concrete truck caused an accident on 23 July 2007 at Oxenford and that the Plaintiff was injured. Clearly there were a number of Readymix trucks in the area at the time. Is it possible to identify the particular truck? This may initially seem to be a difficult task, however it must be remembered that Wheeler v French[14] made it clear that the standard of proof is on the balance of probabilities. President Kirby (as his Honour then was) stated:

“There was no dispute that each of the parties was in the relevant motor vehicle and that one of them was the driver, the other being the passenger. Accordingly, on the face of the conclusion reached, the legal process has certainly failed to provide justice to one of the parties. Indeed, a significant injustice has occurred, for one certainly suffered injuries as a result of the negligence of the other. Compensation has been denied simply because of the suggested inability of either to prove which one was at fault. Against the background of the system of compulsory third party insurance in force in this State for nearly half a century, such a result is unpalatable.[15]

His Honour continued:

“These are not criminal proceedings, in which a much high standard of proof is required for an affirmative conclusion on the issue in contest. In civil proceedings of the present character, it is enough that one of the contending parties should have shown his or her case to have been more probable than not. His Honour was right to avoid speculation. But, at least in the facts of this ease, the matter could be approached from the starting point that one or other of the parties was the driver. The possibilities were, to that extent, narrowed. This was not a case where there was doubt that the accident had occurred at all. Nor was it a case where there was any suggestion that the accident occurred in a different way or that some other, third party or unidentified person was the driver or the person responsible for the collision. The issue was confined to which of these two parties had been proved to have been the driver at fault. The very purpose of the consolidation of the two actions was to avoid (or at least diminish) the risk of the outcome which eventuated. It was to permit the trial judge, weighing all the evidence, to look to where the probabilities lay.”[16]

Priestly JA also noted:

“Whatever the reasons may have been for the sketchy nature of the evidence put before the trial judge, it was not open, on the way the trial was conducted for any possibility to be entertained that some person other than Mr French or Mrs Wheeler had been driving the car at the time of the accident. Thus, for the purposes of the case, the trial judge had to examine the evidence on the footing that Mr French or Mrs Wheeler had been the driver. After discarding the evidence of various witnesses in the way that he did, evidence remained upon which, as it seems to me, it was slightly more probable than not that Mr French was the driver. In a case where one of the few facts which was certain (for the purposes of the proceeding) was that one or other of two persons was the driver of the car, it seems to me that even a slight balance of probability that one person rather than the other was the driver, should be accepted as fulfilling the civil standard of proof.”[17]

[31] What is the correct approach therefore when there are a number of possibilities as to the actual identity of the real tortfeasor? In Kalgannon v Sharpe Bros Pty Ltd,[18] Kirby P held:

“It is otherwise where the plaintiff has brought before the Court all those who, on the evidence, could be responsible for the unspecified negligence alleged. In such circumstances, negligence is not left in the air… There is a difference between failing to identify the tortfeasor liable and failing to specify which of a number of tortfeasors sued may be liable in negligence, where it is shown that the plaintiff has before the Court all of those who are potentially liable.[19]

His Honour continued:

The common law permits sensible inferences to be drawn by processes of logical reasoning from proved facts. If a plaintiff brings all relevant parties to the court and establishes to the satisfaction of the tribunal of fact that one or more of those parties is responsible even though the plaintiff cannot identify which, it would be unjust that those parties, who have the detailed knowledge of their own arrangements should be able to escape liability by declining to give evidence and by asserting that the plaintiff has failed to make out his case, because he has failed to specify who is liable.”[20]

Brisbane Barrister – David Cormack

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