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POSITIVE IDENTIFICATION OF TORTFEASOR NOT NECESSARY TO ESTABLISH LIABILITY
7 December 2012
Mansi v O'Connor & Ors  QSC 336
On 2 October 2012, Her Honour Justice Ann Lyons found one of six identified cement trucks was, on the balance of probabilities, responsible for causing a motor vehicle accident despite the fact that no witness could attest to the vehicle's registration details or identify the driver.
Shortly after 4.00 pm 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 at Coomera. The Plaintiff lost control of his motorcycle as it slid in the concrete slurry.
The Court attempted to identify which truck caused the accident.
The Plaintiff gave evidence that the cement truck which discharged part of its load had a "Readymix" badge however he was unable to provide the registration number of the truck.
An independent witness also stated that the truck was a "Readymix" truck and it was travelling at high speed around a corner. He witnessed something spilling from the truck onto the roadway. This was sufficient to found negligence against the truck driver.
There was a Readymix concrete batching plant in Coomera not far from where the accident occurred. Evidence was given by the Senior Safety Coordinator for Holcin Concrete (formerly Readymix) about which trucks arrived and left the plant around the time of the accident. Six Readymix trucks were identified as being in the vicinity of the accident site on that afternoon.
The six trucks all had different owners and were insured by three different Compulsory Third Party insurers between them. The Nominal Defendant was also joined to the proceedings.
The Court found on the balance of probabilities that the accident occurred in the way described by the Plaintiff and the independent witness and that the driver of the truck involved in the accident was negligent.
The Court was also satisfied that the Plaintiff had joined all possible Defendants. For a Readymix truck to be in the vicinity of the accident location at that time, it was more likely than not that it was a truck which was either leaving or returning to the plant rather than a Readymix truck with no connection to the plant. A truck with a load of concrete on board was more likely to discharge concrete slurry than a truck which had discharged its load; hence the responsible truck was more likely to be one that had just left the plant with a load of concrete than one which was about to arrive at the plant with little or no load.
The Court referred to the comments of Kirby P (as he then was) in the decision of Kalgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600:
"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."
The Court had to determine if it was possible to identify the responsible truck out of the six contenders even if the plaintiff could not. Of the six trucks identified by the Senior Safety Coordinator, three were of a different type to that described by the Plaintiff and the independent witness. Another two had left the plant well before the accident occurred. This left one truck whose driver was found to be responsible for the accident. The Court found that this truck would have been in the area at the critical time as it had left the plant with a load of concrete at about 4.00 pm.
Alternatively, it was submitted that the Nominal Defendant should be found liable if the Court was satisfied that none of the truck drivers were in the vicinity at the time of the accident and that an unidentified truck was responsible. As the Court had found that the responsible defendant was one of the Readymix trucks which worked out of the Coomera batching plant, it was not necessary to consider this aspect of the claim further.
Even though the Plaintiff was unable to positively identify the Readymix truck the court was prepared to draw ‘a sensible inference' from the proved facts.
No appeal is likely given the defendants including the Nominal Defendant agreed to share any judgment given prior to the trial.
For further information, please contact:
Daniel Sullivan | Associate
t +61 7 3224 0358
f +61 7 3224 0333
Cameron Seymour | Partner
t +61 7 3224 0360
f +61 7 3224 0333