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  • Unreported Judgment

Nominal Defendant v Garside

 

[2019] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Garside & Ors [2019] QCA 270

PARTIES:

NOMINAL DEFENDANT

ABN 65 207 831 553

(appellant)

v

GLENN STUART GARSIDE

(first respondent)

DAN ROHAN

(second respondent)

TREVOR JAMES MILES

(third respondent)

JEFF ROBERTSON

(fourth respondent)

QBE INSURANCE (AUSTRALIA) LIMITED

ABN 78 003 191 035

(fifth respondent)

FILE NO/S:

Appeal No 71 of 2019

SC No 499 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton – [2018] QSC 295 (Davis J)

DELIVERED ON:

26 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2019

JUDGES:

Philippides and McMurdo JJA and Applegarth J

ORDERS:

  1. Appeal dismissed.
  2. The appellant pay each respondent’s costs of the appeal.

CATCHWORDS:

TORTS – NEGLIGENCE – PROCEDURE AND EVIDENCE – EVIDENCE – SUFFICIENCY OF EVIDENCE – where the first respondent was injured in the early morning by what he said was an object falling from the back of a truck and striking him whilst he was driving a motorbike – where the vehicle and its driver were not identified but the type of vehicle was established as a commercial truck – whether it was open on the evidence for the primary judge to conclude that the object was pocketed in some part of the truck’s bodywork – whether, if the object was pocketed, it would have been detected if a competent inspection was undertaken – whether the accident was caused by the negligence of whoever was the driver

COUNSEL:

G W Diehm QC, with G C O’Driscoll, for the appellant

M Grant-Taylor QC, with R D Green, for the first respondent

No appearance for the second, third, fourth and fifth respondents

SOLICITORS:

Moray & Agnew Lawyers for the appellant

Grant & Simpson for the first respondent

No appearance for the second, third, fourth and fifth respondents

  1. [1]
    PHILIPPIDES JA: For the reasons given by McMurdo JA, I agree with the orders proposed by his Honour.
  2. [2]
    McMURDO JA: Early on the morning of 25 November 2014, the first respondent, Mr Garside , was injured as he rode his motorcycle along the Gregory Highway, north of Emerald. He was injured by an object, about the size of half a brick, which fell from the back of a truck which was travelling ahead of him. Mr Garside saw the object fall from a height of about 800 millimetres to the road, and bounce on the road, before grazing his motorbike and striking him on his kneecap. He was able to regain control of the motorcycle and pull over, but nevertheless, he was badly injured.
  3. [3]
    Mr Garside brought this proceeding, claiming that the accident was caused by the negligence of the driver of the truck. In essence, he alleged the driver either knew, or should have known by an inspection of the truck before embarking on this journey, that there was this object on the truck which could fall off it when the truck was being driven, creating a risk of the kind of which eventuated in this case.
  4. [4]
    Mr Garside claimed that this was a truck which was operated by JJRichards & Sons Ltd (“Richards”), a waste removal company. The first, second and third defendants were drivers of trucks operated by Richards in that area on that morning. The fourth defendant was the compulsory third party insurer of its trucks. Those defendants denied that it was a Richards truck which was involved in this accident.
  5. [5]
    In the alternative, Mr Garside claimed that the truck, or its insurer under its compulsory third party policy, could not be identified, with the consequence that the Nominal Defendant was liable for the negligence of the driver. That negligence was particularised in the same terms as the case against the Richards defendants.
  6. [6]
    The trial judge had to determine whether it was a Richards truck from which the object fell, whether the accident was caused by the negligence of whoever was the driver, and the amount of damages which should be assessed. His Honour found that this was not a Richards truck, that it was by the negligence of the driver of the (unidentified) truck that the object fell from it and injured Mr Garside , and that his damages should be assessed in the sum of $723,761.64. Mr Garside was given judgment in that amount against the Nominal Defendant.[1]
  7. [7]
    The Nominal Defendant appeals against that judgment, arguing that the determination of that second question was erroneous. There is no challenge to the trial judge’s determination of the first and third questions. The issue for this Court is whether the judge should have found that it was by the negligence of the truck driver that this object fell from it. For the reasons that follow, the trial judge was correct to decide that question as he did, and the appeal should be dismissed.

The evidence

  1. [8]
    The accident occurred at about 6.15 am on the Gregory Highway, where Mr Garside was riding his motorcycle north of Emerald towards Capella. It occurred at a place which was about six kilometres from Emerald. The speed limit at that point was 100kilometres per hour. The weather conditions were good.
  2. [9]
    Mr Garside was riding behind a bus, which was driven by a Mr Mooney . Mr Garside ’s evidence was that he could see that there was a truck in front of the bus, which he described, in his evidence-in-chief, as a liquid waste tanker. Mr Garside said that the truck had the name “JJ Richards” printed on its side.
  3. [10]
    Mr Garside described his following the bus and the truck, until it was safe to overtake. He positioned himself near the centre line of the highway, from which he could see the rear of the truck. At that time, there was no oncoming vehicle. He then noticed that something fell from the back of the truck, which he thought “was a piece of concrete half the size of a house brick.” He noticed that it “bounced directly behind the truck” before it “pinged back directly into my motorbike.” The object “grazed the fender on my motorbike and it struck my kneecap”. His knee was knocked from its position, as was his foot, but he was able to regain control and pull the motorcycle to the side of the road. He further described the object as “about half the size of ahouse brick or a closed fist” and grey in colour. Mr Garside did not see from what part of the truck the object fell. When he first saw it, it was “mid-air about one metre behind and off from the driver’s side of the rear of the vehicle at approximately 800 millimetres from the ground.”
  4. [11]
    Later that day, Mr Garside contacted a Mr Fisher at the Richards depot in Emerald. He told Mr Fisher that this was a Richards truck, which he described to Mr Fisher as an overhead lift truck. But in his evidence, Mr Garside said that he was mistaken in that description to MrFisher, and that he believed that the truck was a chemical waste truck.
  5. [12]
    Mr Garside and his partner attempted to locate the object at the scene, but were unable to do so. It was never found.
  6. [13]
    All of that evidence was accepted by the trial judge, except for Mr Garside ’s testimony that the truck had “JJ Richards” printed on its side. As I have said, his Honour found that more probably than not, this was not a Richards truck. Each of the Richards drivers who was a defendant testified as to his particular movements on the morning in question, and there is no challenge to his Honour’s finding, from that evidence, that none of them could have been the driver. There was further evidence that it could not have been a Richards truck driven by anyone else. The bus driver, Mr Mooney , said that he noticed that it was a “JJ Richards” truck. But his evidence in that respect, like that of Mr Garside was rejected.
  7. [14]
    In addition to his description of the truck, Mr Mooney ’s evidence was that, although he recalled a motorcycle in his rear vision mirrors, he did not see anything fall from the truck, and nor did he see what became of the motorcycle.
  8. [15]
    Each of the Richards drivers who was a defendant gave evidence, as to what he routinely did in commencing work and beginning his first journey of each day. MrRohan described checking tyres, lights, fluid levels and the engine, and checking for unsecured items and removing any that he found.[2] He said that sometimes “tools can be left behind after … maintenance work, so we check that there’s nothing that can basically fall off.”[3] MrMiles performed a safety check, which included a check for loose objects on the bodywork of his semi-vacuum tanker, before embarking on his first journey.[4] This was a check for “loose objects or anything which may have been in the pipe racks or anything like that” which “made sure everything was secure”.[5] MrRobertson drove an overhead lift truck. Each morning he went through a process which included a check of his truck, which included a check for “anything that’s on the truck that shouldn’t be on the truck or anything that’s out of the normal.”[6]
  9. [16]
    There was evidence by the operations manager for another waste disposal company, which conducted a business from Emerald in collecting solid and liquid waste from coal mines. He also described a procedure routinely undertaken by drivers for that company of checking for hazards, including loose objects on their trucks, before setting off for the day.[7]

The reasoning of the trial judge

  1. [17]
    After concluding that the truck and the truck’s insurer could not be identified, so that the claims against the defendants other than the Nominal Defendant should be dismissed, the trial judge turned to the question of whether negligence was proved. His Honour began that discussion as follows:[8]

“I find that the object which hit Mr Garside fell from the green truck. I reject the contrary submission that the rock may have been thrown up from the road. I reject that submission because:

  1. (i)
    the object was quite obviously a large one that is unlikely to have been thrown from the road’s surface;
  2. (ii)
    I accept Mr Garside’s evidence that he saw the object falling to the right side of the truck from a height of about 800 millimetres;
  3. (iii)
    I accept Mr Garside’s evidence that the rock was moving in a forward trajectory. That is inconsistent with the object being propelled from the road at Mr Garside, and consistent with it travelling on the truck (therefore at the same speed as the truck) and falling from it. As it fell from the moving truck and its forward momentum slowed relative to the truck and the speed of Mr Garside’s motorcycle, it has collided with Mr Garside.”
  1. [18]
    Next, his Honour set out the terms of s9 of the Civil Liability Act 2003 (Qld), after which he referred to Wyong Shire Council v Shirt,[9] and what he described as astatutory alteration of the test of foreseeability which had been laid down in that case.[10]
  2. [19]
    What then followed were the critical parts of his Honour’s judgment, which should be set out in full:

[80]Consistently with the relevant speed limits in Queensland, vehicles on an open road travel in the vicinity of 100 kilometres per hour. Any solid object falling from a vehicle moving at that speed becomes a projectile capable of inflicting enormous harm and damage to vehicles and persons using the roadway. The risk that an object could become lodged in the bodywork of acommercial vehicle and then become dislodged during the journey causing danger is clearly foreseeable as a significant risk. Having regard to the seriousness of the harm that could be suffered and the fact that the precautions necessary to avoid the harm are as simple as an inspection of the external bodywork of the vehicle, the failure to do so constitutes a breach of duty.

[81]Mr Garside does not rely on the principles of res ipsa loquitur. On his behalf, it is submitted that an inference can be drawn that the object was either placed on the vehicle and not removed before the journey began or became accidentally lodged in the vehicle and was not detected before the journey began. Of course, in order for Mr Garside to succeed he, bearing the onus of proof, must establish a positive inference that it is more likely than not that the pleaded breach of duty actually occurred.

[82]Although every case, of course, turns on its own peculiar facts, the courts in a number of cases have drawn the inference of negligent conduct where accidents have been caused as a result of foreign objects and substances being on the road.

[83]Here, the object has clearly fallen from the bodywork of the truck. The object is a large object and even if “pocketed” in some part of the bodywork it must have been able to be seen on competent inspection. I draw the inference then that the driver either knew that the object was on the bodywork (they having placed it there) or ought to have known but did not conduct an examination to detect it. In either case there was then a failure to remove it.

[84]I find that the injuries suffered by Mr Garside were caused by negligence of the driver of the green truck.”

The appellant’s argument

  1. [20]
    The appellant’s argument does not criticise the reasoning in [80] of the Primary Judgment. There is no challenge to the first sentence of [83], but the second sentence is said to have been a finding which was not open on the evidence. The primary judge there said that the object, even if “pocketed” in some part of the bodywork, must have been able to be seen on a competent inspection.
  2. [21]
    The appellant argues that many things could have affected whether the object was visible, if “pocketed” on the bodywork: precisely where the object was “pocketed” on the truck, what sort of truck it was and what “pockets” existed on its bodywork, and what was their orientation, shape and size. Further, it is said, his Honour failed to define, or at least describe, what would have been a “competent inspection”, including by reference to the frequency of inspections and when, during the course of a working day, the inspections would be carried out.
  3. [22]
    The appellant’s argument acknowledges that there was the evidence of the truck drivers, to which I have referred, as to their practices at the commencement of a shift, but points out that, on that evidence, the trucks were not climbed and ladders were not employed to inspect “pockets” above eye level.
  4. [23]
    Further, it is submitted that there was no evidence suggesting a real possibility that a driver would place such an object on the bodywork. It is said that, if it was to be contemplated that the object had been deliberately placed on the truck, there was no basis to find that that had been done by the driver. According to the particulars of negligence, it was only the driver, rather than his employer, who was said to have been negligent.
  5. [24]
    More generally, it is said that no finding could be or was made as to what journey or journeys this truck had taken on the day, what work it had been involved in prior to the accident or how an object such as this may have come to have been on the truck.
  6. [25]
    The appellant criticises the judgment as not revealing his Honour’s chain of reasoning towards his conclusions in [83]. It is suggested that his Honour may have made findings of fact which were, on the evidence, no more than a preference for one speculative possibility as more probable than another.[11]

Consideration of the appellant’s arguments

  1. [26]
    As his Honour recorded, the argument for Mr Garside did not rely on the principle of resipsaloquitur.[12] There was and is no argument for Mr Garside that this occurrence, namely the falling of a hard object of this size from the bodywork of a truck being driven on a highway, could not happen without some negligence by the driver of the truck. It was not said that this was one of those cases where a presumption of negligence from the occurrence was one which followed from “the common knowledge and experience of mankind”, to use the words of BarwickCJ in Piening v Wanless.[13] Nor was it a case where the evidence, expert or otherwise, established that such an occurrence ordinarily does not occur without negligence on the part of the driver.[14]
  2. [27]
    It must be said that the evidence raised many variables, as the appellant’s argument suggests. The size of the object, and its colour and hardness, could be determined, but beyond that, just what the object was remained unknown. Whilst Mr Garside described it as being like a piece of concrete or a rock, he was unable to say that this is what it was. He described the object as bouncing unevenly off the road, which he said might have meant that it had jagged edges, but beyond that he could not describe it beyond reference to its size and that it was “about the colour of concrete”.[15] The trial judge did not find that it was a piece of concrete or rock.
  3. [28]
    Nevertheless, his Honour had the benefit of the evidence of the truck drivers, to which Ihave referred. From that evidence, several things appeared. The first was that there was a common recognition that, occasionally, some object might be on the bodywork of a truck, which had not been placed there by the driver and ought not to be there when the truck was being driven. The frequency with which that could occur would vary according to factors such as the purpose to which the truck was put, and the locations in which it was driven and parked. But the prospect that there would be such an object was sufficient to lead to a general practice of checking for the presence of such a thing, at least at the beginning of a working day.
  4. [29]
    Secondly, from this evidence it could be seen that the drivers, in undertaking these checks each day, were confident that any such object could be found. No doubt that confidence was supported by a driver’s knowledge of the particular truck, or in other words, a knowledge of where to look for the presence of such an object. It did not matter that these drivers, with these trucks, did not climb all over them with the use of ladders or otherwise. What mattered was that, as would be expected, they worked on the bases that an object such as this one would be visible on an inspection of any part of the body work where there was a possibility that it would be located.
  5. [30]
    Therefore from this evidence, it would be inferred that, with an inspection undertaken with reasonable care, such an object, if present at the time of the inspection, would be found.
  6. [31]
    There is then a question of whether such an inspection would have found this object, against the possibility that it came to be on this truck at a point in time between the most recent inspection and this accident. It is important that the accident occurred very early in the morning. It was very probable that this occurred at or near the beginning of its working day. It is argued for the appellant that, nevertheless, it could not be inferred that the truck would have been inspected by its driver at the beginning of, rather than, say, half way through, the working day. However the evidence suggested no reason why a routine inspection, as described by each of the drivers who testified, would be done in the middle of, rather than at the beginning of, the driver’s shift as they took control of the vehicle. In my view, the strong probability was that this accident occurred not long after the beginning of the shift of the driver of the truck, and after the routine check of the vehicle at the commencement of the shift should have occurred.
  7. [32]
    There are then only two realistic possibilities, which were those identified in [83] of the Primary Judgment, namely that the driver knew that the object was there, or that he ought to have known that it was present, because a proper inspection would have revealed it. There is no real possibility that by some means and unbeknown to the driver, this object came to be on the truck after the shift began, but before this accident.
  8. [33]
    For these reasons, the conclusion of the trial judge was correct and the appeal should be dismissed.

Orders

  1. [34]
    The Richards drivers and their insurer, who are defendants, were joined as respondents to this appeal, because originally, the appellant challenged the finding that the driver and the insurer were unidentified. That challenge was abandoned prior to the hearing of the appeal. Those respondents, like Mr Garside , should have their costs of the appeal.
  2. [35]
    I would order as follows:
    1. Appeal dismissed.
    2. The appellant pay each respondent’s costs of the appeal.
  3. [36]
    APPLEGARTH J: I agree with the reasons of Mc Murdo JA and with the orders proposed by his Honour.

Footnotes

[1] Garside v Rohan & Ors (2018) 87 MVR 148; [2018] QSC 295 (“the Primary Judgment”).

[2] T2-68–69; Primary Judgment [35].

[3] T2-68.

[4] T3-79; Primary Judgment [38].

[5] T3-79.

[6] T3-59; Primary Judgment [42].

[7] T3-97; Primary Judgment [52].

[8] Primary Judgment [75].

[9] (1980) 146 CLR 40 at 47; [1980] HCA 12.

[10] Citing Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldird Pty Ltd [2013] 1 Qd R 319; by s 9(1)(b).

[11] Inconsistently with Jones v Dunkel (1959) 101 CLR 298 at 304-305 per Dixon CJ; [1959] HCA 8.

[12] Primary Judgment [81].

[13] (1968) 117 CLR 498 at 508; [1968] HCA 7.

[14] Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 140 [43] per Gleeson CJ and McHugh J; [2000] HCA 18 at [43].

[15] Exhibit 6, paragraph 26.

Close

Editorial Notes

  • Published Case Name:

    Nominal Defendant v Garside & Ors

  • Shortened Case Name:

    Nominal Defendant v Garside

  • MNC:

    [2019] QCA 270

  • Court:

    QCA

  • Judge(s):

    Philippides JA, McMurdo JA, Applegarth JA

  • Date:

    26 Nov 2019

Litigation History

No Litigation History

Appeal Status

No Status