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Barry, Christopher --- "Inferential reasoning in catastrophic injury cases" [2016] PrecedentAULA 16; (2016) 133 Precedent 8

INFERENTIAL REASONING IN CATASTROPHIC INJURY CASES

By Christopher Barry QC

One of the distinguishing characteristics of catastrophic injury cases is that plaintiffs often have no recollection of the circumstances of the accident.

This does not cause any difficulty in the proof of liability where there are witnesses, but it is not uncommon for plaintiffs with severe injuries to have no recollection of their accidents where there are no witnesses.

The function of the plaintiff’s legal representatives is then to prove facts upon which inferences can be drawn in order to prove negligence.

Two fairly recent High Court cases with opposite outcomes are good illustrations of the nature of the process of proof and fact-finding that such cases involves.

In Matina Lujans v Yarrabee Coal Company Pty Ltd and Jalgrid Pty Ltd [2008] HCA 51, the facts were that at 6.20am on Friday 18 September 1998 the plaintiff, then aged 28, was driving to work at a central Queensland coal mine owned by the first respondent, Yarrabee Coal Company Pty Ltd (‘Yarrabee’) and maintained by the second respondent Jalgrid Pty Ltd (‘Jalgrid’).

Ms Lujans had turned off the Capricorn Highway and, approximately six kilometres along the haul road, her Toyota Hilux gradually drifted on to the shoulder on the left-hand side of the road close to a guidepost approaching a sweeping right-hand bend. Tyre marks showed that her vehicle then travelled across to the other side of the road and rolled, causing catastrophic injuries to Ms Lujans, including quadriplegia.

The trial proceeded over several weeks. Evidence was given about the method of grading the road. The system of maintenance was that loose material was pushed to the edge of the road and as a result of the continual movement of coal trucks, black dust was deposited over the whole of the road from one side to the other so that a motorist could not readily discern where the hard surface of the road finished and where the soft edge commenced.

The plaintiff had a recollection of commencing the drive out to the coal mine and a vague recollection of feeling unsafe, but no recollection of the circumstances of the accident.

The primary judge found on the basis of lay evidence, photographic evidence and expert evidence that the manner of construction and maintenance of the road made the road deceptive. This caused the plaintiff to travel too far to the left on to the loose material, causing her to lose control of her vehicle when she tried to regain the firm surface of the road.

The primary judge found both defendants liable and awarded Ms Lujans $10,802,980.43, which he reduced by 20 per cent for her contributory negligence (being her failure to stay on the hard compacted centre of the road). Judgment was entered in her favour for the amount of $8,759,510.55.

The defendants appealed to the Court of Appeal.[1] Handley AJA, with whom Ipp JA and McColl JA agreed, allowed the appeal with costs and set aside the judgment in favour of the plaintiff, with costs.

In his reasons for judgment, Handley AJA said:[2]


‘Since there was no evidence of any defect in the vehicle or its tyres or of the presence of anything else on the road surface, the movement of her vehicle off the road was some evidence (res ipsa loquitur) of negligence by the respondent in her control and management of the vehicle: Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246, 260, 272, 276; Government Insurance Office of NSW v Fredrichberg [1968] HCA 54; (1968) 118 CLR 403, 412, 418. It was not, per se, evidence of negligence on the part of those responsible for the construction and maintenance of the road.’

Further, in his judgment, his Honour said:[3]

‘Even if the appearance of the road at the boundary between the shoulder and the smooth central surface was deceptive, this could only be relevant and causative of the accident if the respondent was attempting to drive close to the left shoulder. There was no good reason for her to do this. She could and should have kept her vehicle well away from the left shoulder wherever it began.
The judge found there was nothing unsafe about the central section of the road which could have caused the respondent to drive close to the left shoulder. She would have had no difficulty in driving well clear of the shoulder if she wanted to and was keeping a proper lookout. She would need to keep well clear of it as she approached the right-hand bend.

The most probable explanation for the respondent finding herself approaching the guidepost is that she was not keeping a proper lookout.’

The plaintiff sought special leave to appeal to the High Court of Australia. The Court referred the special leave application to a Full Court and treated the appeal as having been heard at once. It allowed the appeal and remitted the matter to the Court of Appeal for rehearing of the respondent’s appeal to that Court.[4]

In the joint judgment, French CJ, Gummow, Hayne, Heydon and Crennan JJ were critical of the way in which the Court of Appeal approached the task of the drawing of inferences from the facts otherwise established. Their Honours stated:[5]

‘The primary reason why the Court of Appeal reversed the trial judge was that it viewed the sole cause of the accident as being driver error. That error lay in the plaintiff’s failure to remain in the central part of the road and failure to keep away from the left shoulder. The Court of Appeal said she was not keeping a proper lookout. Thus what the trial judge saw as a factor properly reflecting a finding of 20 per cent contributory negligence was seen by the Court of Appeal as a complete bar to recovery.’

Their Honours observed[6]:

‘The point of the trial judge’s reasoning is that although just after the road had been graded down to the underlying clay the difference between the hard surface and the softer edges was clear, the road assumed a uniform darker colour as the days passed until the next regrading, so that it was difficult to distinguish the hard centre and the softer edges.’

The High Court then reviewed, in some detail, the evidence given at trial and commented adversely upon the failure of the Court of Appeal to have itself done so.

Their Honours continued:[7]

‘The primary difficulty with the reasons for the judgment of the Court of Appeal is not that analysis reveals that the conclusions stated in them are necessarily wrong, it is that important steps in the Court’s reasoning are shown not to be valid. In that sense the Court of Appeal has not reheard the matter as it should.’

The High Court remitted the matter to the Court of Appeal for a rehearing of the respondent’s appeal to that Court and ordered the defendants to pay the High Court costs upon the ground that ‘the defendants strongly resisted both the special leave application and the appeal in this Court’.

On the remitter to the Court of Appeal, the President of the Court of Appeal, Allsop P, who agreed with the reasons of Beazley JA and Giles JA, was less than enamoured with the criticism made of the Court of Appeal by the High Court. His response to the High Court’s conclusion that the Court of Appeal had not properly discharged its function was to make the observation:[8]

‘The Court was able to evaluate the evidence assisted by not only the submissions, but also by the debate between Bench and Bar. This degree of assistance to, and perspective of, an appellate court fortunate enough to receive it and the opportunity then for reserving judgment and analysing the evidence with the advantage of discussion and debate among the appellate court are to be recognised as a species of appellate advantage not often available to a primary judge.’

Beazley JA referred at some length to what the High Court had said in Fox v Percy:[9]

‘In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’

Her Honour then noted the extensive review of the evidence in the judgment of Giles JA, which included his acceptance of findings of fact all favourable to the plaintiff in relation to the coal dust on the road and its uniform appearance. But her Honour then continued:

‘However, even assuming these factual matters in favour of the respondent, they do not lead to “a reasonable and definite inference”: see Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 per Williams, Webb and Taylor JJ citing Bradshaw & McEwans Pty Ltd (High Court of Australia, 27 April 1951, unreported), that the onside wheels of the respondent’s vehicle moved off the pavement proper and on to the shoulder because the appellant was misled by the appearance of the road.
75. Dixon, Fullagar and Kitto JJ in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, at 358, cited the following passage from Bradshaw & McEwans:

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] UKLawRpAC 47; (1911) AC 674, at p687. But if the circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise: cf per Lord Loreburn (1911) AC at p678”.’

The appeal was again allowed by the Court of Appeal and the plaintiff was ordered to pay the appellant’s costs of the trial and of the rehearing of the appeal.

Ms Lujans made a further application for special leave to appeal to the High Court which was refused, with costs, without the defendant being called upon.

The reference by Beazley JA to Luxton v Vines[10] provides a good introduction to a second High Court case to be discussed in this article. This is the case of Fuller-Lyons v State of New South Wales,[11] which isthe most recent High Court case involving inferential fact-finding in a catastrophic injuries case.

The plaintiff, Corey Fuller-Lyons, was eight years old when he was travelling with his brothers on a train between Sydney and Newcastle.

Sometime prior to the train arriving at Morisset railway station he left the company of his two older brothers to get a drink of water. The three boys were in the front carriage of the train. When the plaintiff did not return after 15 minutes his brothers went looking for him and could not find him on the train.

The primary judge, Beech-Jones, commenced his judgment in which he found a verdict in favour of the plaintiff as follows:[12]

‘[1] Sometime after midday on Monday, 29 January 2001, motorists driving on Main Road 217 near Marconi Road, Dora Creek, were confronted with the sight of an eight–year-old boy covered in blood near the side of the road. That boy was Corey Fuller-Lyons who by his mother, Nita Lyons acting as his tutor, is the plaintiff in these proceedings.
[2] Earlier that day Corey had boarded a train at Sydenham with his two elder brothers, Dominic and Nathan. They had changed at Central Station and boarded a train to Newcastle. It is common ground that Corey exited the train shortly after it departed from Morisset Station on the western side of the train line. The police report describes him as having missed a power line before hitting the ground, and sliding for approximately 20 metres over a 3 metre embankment. He received severe lacerations to his forehead, legs and arms. Somehow Corey was able to climb the embankment, walk across both tracks and climb a safety fence before being noticed by passing motorists. The police and ambulance were called. Ambulance officers arrived at the scene at 12.56pm. Corey was airlifted to John Hunter Hospital in Newcastle.’

No one heard or saw the plaintiff fall from the train. The plaintiff himself had no recollection of the accident, probably by reason of his age and the brain damage that he sustained when he fell from the train which, at that time, was travelling at approximately 100km/h.

The primary judge found a verdict in favour of the plaintiff upon the basis that the customer services attendant on the railway station had negligently signalled that it was safe for the train to leave Morisset Railway Station while the plaintiff was trapped in the doors of the train and he awarded the plaintiff $1,536,954.55.

The customer services attendant who gave the signal had died prior to the trial and no witness statement or other record of his version of what occurred at Morisset Railway Station had been obtained.

The primary judge directed himself in relation to the relevant principles to be applied in the following terms:

‘[68] As noted, the only witness to Corey’s fall was Corey himself, and his recollection is of no assistance in determining how it happened. I must therefore resort to a process of drawing inferences based on known or established facts. Inferences “from actual facts that are proved are just as much part of the evidence as those facts themselves” (Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480 per Williams, Webb and Taylor JJ, citing Richard Evans & Co Ltd v Astley [1911] AC 64 at 687; see also Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 309 per Menzies J). Moreover, a court is entitled to draw inferences from “even slim circumstantial facts that exist so long as that goes beyond speculation” (Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq, with whom Ipp JA and Davies AJA agreed; Condos v Clycut Pty Ltd [2009] NSWCA 200 at [68] per McColl JA, with whom Campbell and Macfarlan JJA agreed). In that regard I note four points.
[69] First, all the circumstances proved in evidence, however slim, should be closely examined in order to establish whether they “raise a more probable inference in favour of what is alleged [that is, negligence on the part of the defendant]” (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155 at 161-162 per Stephen J).
[70] Second, the inference must arise as an affirmative conclusion from the evidence and be established to the reasonable satisfaction of a judicial mind (Jones at 304 per Dixon CJ, West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 at 66 per Stephen, Mason, Aickin and Wilson JJ, Condos at [68] per McColl J, Campbell and Macfarlan JJA agreeing, Jackson v Lithgow City Council [2008] NSWCA 312 at [10] per Allsop P, Basten JA and Grove J agreeing).
[71] Third, where the circumstances give rise to nothing but conflicting conjectures that are of equal degree of probability, the court cannot reasonably arrive at an affirmative inference of negligence (Bradshaw at 5, Luxton at 360 per Dixon, Fullagar and Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, West at 68 per Stephen, Mason, Aickin and Wilson JJ, Girlock at 161-162 per Stephen J). The plaintiff cannot succeed unless the more probable inference is that the injury arose from the defendant’s negligence (Millicent District Council v Altschwager (1983) 50 ALR 173-4 per Gibbs CJ, Murphy, Brennan, Dean and Dawson JJ).
[72] Fourth, it is no answer to the question of whether something has been shown to be more probable than not to say there is another possibility open (Strong v Woolworths [2012] HCA 5; 246 CLR 182 at [34] per French CJ, Gummow, Crennan and Bell JJ).’

Having analysed the evidence in relation to the way in which the doors operated and, in particular, the force required to move them apart, the primary judge made this finding:

‘[77] The most likely possibility by a large measure is that, as the train left Morisset, Corey was already inserted between the doors with his back to one of them. This represents the most likely scenario in which he could have exerted sufficient force on one of the doors in an attempt to open it in the minutes before he fell out of the train. This possibility would entail the door closing on some point of the span of his body between his two shoulders. It means that, as the train left the station, at least one of his legs and arms was outside the train and part of his torso. From that point Corey would have been able to generate sufficient force to force the doors open a little further in the minute or so before the fall. As he did so and the train veered to the east, he fell out, bearing in mind the centrifugal force that was operating as noted by Mr Cowling.’

Although the primary judge rejected the plaintiff’s case based upon the failure of the defendant to commission a mechanical means of preventing the train from leaving while a person was trapped between the doors, the primary judge accepted that part of the plaintiff’s case based upon the vicarious liability of the defendant for the negligence of the customer services attendant. He concluded as follows:

‘[43] Accordingly, I accept Mr Barry QC’s submission that, a CSA (customer services attendant) being present on the platform, that person “was negligent in failing to keep a proper lookout for the plaintiff trapped in the doors when he gave the signal to Mr Meiforth (the guard) that it was safe for the train to leave”.’

The defendant appealed to the Court of Appeal.

That Court, McColl and Macfarlan JJA and Sackville AJA, allowed the appeal and substituted a judgment for the appellant and ordered the plaintiff’s mother to pay the costs of the trial and the costs of the appeal.

The leading judgment in the Court of Appeal was delivered by Macfarlan JA, who reasoned that the plaintiff may have been able to use either his shoulder, a small object, or a larger object such as a backpack, soccer ball or the like to keep the train doors from locking at Morisset Railway Station then enlarge the gap by forcing himself between the doors and then inadvertently falling out of the train.

There was no evidence at the trial that the plaintiff had any such objects in his possession, nor was the existence of any such objects raised on the hearing of the appeal.

His Honour’s reasoning included the following:

‘[43] ...As I have said above, Corey could have had a shoulder, arm and leg between the doors when the train left Morisset Station without any of them protruding significantly; alternatively, when the train left Morisset Station the gap between the doors could have been created by an object placed between them and been large enough for Corey to insert himself easily in and through it in the two to three minutes available before his fall. In my view, these possibilities were no less likely than that identified by the judge.
[44] Supporting this view is the fact that the CSA at Morisset apparently did not observe Corey’s body to be protruding significantly from any of the train doors. Whilst an alternative possibility is that, as the plaintiff alleged, Corey was in this position when the train left Morisset Station and the CSA negligently failed to observe him, it cannot be assumed that this is what occurred. It is at least as plausible that the CSA was doing his or her job but did not see Corey because no significant part of his body protruded beyond the doors.
[45] The primary judge proceeded to consider in paragraph [79]-[82] whether Corey had become unwittingly trapped between the doors or had in some fashion been interfering with the doors in an attempt to open them or keep them open (or perhaps a combination of both). His Honour said that the evidence did not enable him to reach a conclusion as to which was applicable and it was not asserted on the appeal that any such conclusion should or could be reached. It follows that intentional interference with the doors would not, on the balance of probabilities, exclude it as a reasonable possibility and that the hypotheses that I have identified, alternative to that found by the primary judge, therefore remain reasonably available.
[46] For these reasons, my view is that the evidence did not warrant an affirmative conclusion that Corey’s body was protruding significantly from the train doors when the train left Morisset Station.’

Sackville AJA agreed with the judgment of Macfarlan JA, as did McColl JA who, in a separate judgment, stated:
‘[2] The primary judge carefully directed himself as to the principles to be applied in a case which depends upon the drawing of inferences: Fuller-Lyons v State of New South Wales (No. 3) (2013) NSWSC 1672 (at [68]-[72]). However, with respect, in my view his Honour failed to apply the requirement to distinguish carefully between inference and conjecture or speculation (see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [80 ff] per Spigelman CJ) and in concluding the inferential approach favoured the hypothesis as to the cause of his fall.’

On 17 April 2015, Bell and Gageler JJ granted special leave to appeal to the High Court of Australia against the decision of the Court of Appeal.

The High Court heard the appeal on 18 June 2015 and, in a reserved judgment delivered on 2 September 2015,[13] the Court set aside the orders made by the Court of Appeal and ordered that the appeal to that Court be dismissed – with the effect that the decision of the trial judge in favour of the plaintiff was restored.

The matter was remitted to the Court of Appeal to determine the costs of the appeal to that Court which, as with the costs of the trial, were ordered to be paid by the defendant on an indemnity basis.

The High Court judgment is an important decision on inferential fact-finding in these types of cases.

In the unanimous judgment of the High Court,[14] their Honours dealt with that part of the reasoning of Macfarlan JA relating to the use of a larger object to keep the doors open in the following way:

‘[36] It appears clear that Macfarlan JA’s reference to backpacks, soccer balls and the like was a response to the primary judge’s comment that it was difficult to conceive of a larger object that was available to Corey. It was, however, an error to reject the primary judge’s inferential factual finding upon a view that Corey had failed to exclude a hypothesis that had not been explored in evidence.’

The reasoning of the Court of Appeal that the existence of other possibilities or what that Court called ‘hypotheses’ could be legitimately set up against the actual findings of the primary judge was dealt with by the High Court in the following two paragraphs:

‘[46] Corey’s case depends upon proof of three inferences of fact: that as the train left Morisset Station he was trapped between the front, western doors of the lead car; that his arm, leg and part of his torso were protruding from the car; and that the protruding parts of his body were visible to persons standing in the CSA’s position on the platform. Corey’s case fails if any of the inferences is not a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.
[47] The conclusion that Corey fell from the front, western doors of the lead car is inevitable. The conclusion that immediately before the fall Corey must have been between the doors with his back to one (as he pushed against the opposing door) is accepted by the primary judge and the Court of Appeal to be the correct inference. If the primary judge’s conclusion, that the reasonable and probable explanation for this state of affairs is that Corey was trapped between the doors as they closed at Morisset Station, is a correct finding, it remains correct notwithstanding that other possible explanations for the known facts cannot be excluded.’

[emphasis added]

CONCLUSION

So what do we get from the cases of Lujans and Fuller-Lyons when dealing with cases involving inferential fact-finding in catastrophic injury cases where the plaintiff has no recollection of the accident and there are no witnesses?

The answer would appear to be that if the facts established by the evidence are no better than equally consistent with an explanation for the accident which does not involve any finding of negligence against the defendant, then the plaintiff must fail but if those facts enable a primary judge to draw the inference that ‘the reasonable and probable explanation’ for the accident was the negligence of the defendant or someone for whom it is vicariously liable it does not matter that there may be other possible explanations for the way in which the accident occurred.

Christopher Barry QC is a generalist common law and appellate silk and a mediator, located at Selborne Chambers in Sydney. He appeared for Yarrabee Coal Company and its contractor in the first of the High Court cases discussed in this article, and for the Corey Fuller-Lyons in the second of those cases. WEBSITE: barrister.com.au.


[1] Yarrabee Coal Company Pty Ltd v. Matina Lujans [2007] NSWCA 342.

[2] Ibid, at [11].

[3] Ibid, at [32].

[4] Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51.

[5] Ibid, at [9].

[6] Ibid, at [13].

[7] Ibid, at [11].

[8] Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85 at [3].

[9] [2003] HCA 22 at [25].

[10] [1952] HCA 19.

[11] [2015] HCA 31.

[12] Fuller-Lyons v State of New South Wales (No. 3) (2013) NSWSC 1672.

[13] Fuller-Lyons v New South Wales [2015] HCA 31.

[14] [2015] HCA 31 at [36].


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