Background

Her Honour Justice Ann Lyons recently had to decide which of the six named Insureds was the driver of a truck involved in an accident that occurred on 23 July 2007 at the intersection of Hope Island Road and Old Pacific Highway, Oxenford. The case is Mansi v O’Connor and Others1.

The Plaintiff and an independent witness gave evidence that a large red coloured cement mixer truck turned off Hope Island Road onto Old Pacific Highway, Oxenford and discharged a slurry concrete mix onto the roadway. The Plaintiff was on a motorbike travelling behind the truck not at speed and was unable to avoid the slurry and high-sided on his bike and fell over sustaining injuries to his wrist.

Determination of the Defendant

Evidence was called from the local concrete batching plant concerning the computer information of the vehicles that left the batching plant on 23 July 2007.

Each of the six trucks were able to be identified by the:

  • Time that they commenced loading;
  • Destination where they were travelling;
  • Distance at which the destination was from the batching plant;
  • Type of truck.

The independent witness and the Plaintiff gave evidence that the truck was a normal 6x4 rather than a 8x4 or a 4x2 axle combination. To that end, two of the trucks identified and sued did not match the description by the Plaintiff and the independent witness.

Her Honour found that liability rested with the driver of the Ready Mix cement truck as he was responsible for the load that he was carrying to ensure that none of the product escaped and discharged onto the roadway causing a foreseeable injury to road users, such as the Plaintiff.

Her Honour then made findings as to which truck in question was the liable party for the purpose of the Judgment. The Plaintiff was not able to give any further evidence which would assist but he had clearly identified all of the trucks in question that were relevant, based on the evidence of the batching plant operator.

Her Honour Justice Ann Lyons said by inference she could determine which truck was the more probable of the vehicles involved. She made reference to the dicta by President Kirby (as His Honour was then) in Kalgannon v Sharpe Bros Pty Ltd2 where he said:

“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.”

Findings

As a consequence, Her Honour said it would be inappropriate for the Plaintiff to fail in his case, when he has done everything in his possession of proving the identity of the truck. He at Common Law was only required to show on the balance of probability which is the party liable.

As a result of the evidence of the batching plant operator, it is apparent that all possible Ready Mix trucks were identified in the time frame in question when the incident occurred. There was no other inference available to suggest to the contrary.

It was apparent that it was more likely than not the truck that was loaded with concrete on board was more likely to discharge the concrete slurry, than one that was empty and returning. By way of process of elimination Her Honour determined that it was the First Defendant’s truck that clearly had just left the batching plant and would have been in the area at the time of the incident. He was also traveling in the appropriate direction and the driver may have taken an alternative route rather than a direct route to avoid residential areas and traffic.

Her Honour said that as to the case concerning the Nominal Defendant for an unidentified vehicle was inappropriate because her conclusion was the vehicle was now identified.

Quantum

Her Honour then had to decide as to whether the complaint of the back injury that the Plaintiff had 12 months post accident was attributed to the accident. Because of the lack of complaint of that symptomatology at the medical centre where he was seen post accident and the Hospital, his Centrelink forms whilst he was on benefits for six months, Her Honour concluded that the back symptomatology that occurred 12 months after was not causatively related to the accident.

She determined that he was entitled for loss of earnings for 26 weeks at $600.00 per week consistent with his past average earnings plus allowance for global disadvantage concerning an antique business he was operating on the weekend of $5,000.00.

The Plaintiff also gave evidence that he was only working 30 hours per week compared to the 40 hours pre accident and so there was a quantifiable loss ongoing of ten hours per week of approximately $150.00 per week.

The assessment of loss of earnings in the future was not assessed on the basis of the reduced earnings of ten hours per week but a global allowance of $25,000.00.

Conclusion

Although the Defendants drivers in the matter were not called to give evidence about the involvement of the truck in the claimed accident, it was apparent that a red Ready Mix concrete truck was involved and on the balance of probabilities the Plaintiff was successful in establishing the identity of the truck in question notwithstanding suing seven named Defendants plus their Insurers.

Clearly, there was never going to be an issue that the Plaintiff was not going to succeed. The question was which of the CTP Insurers was going to be a liable party. On the balance of probability some of the Insurers should have been excluded given the findings made by Her Honour and the evidence of the witnesses supported that they were not involved.