Theunis VAN EEDEN v Phillip Andrew HENRY; Phillip Andrew HENRY v Theunis VAN EEDEN [2005] NSWCA 14 (11 February 2005)

CITATION: Theunis VAN EEDEN v Phillip Andrew HENRY; Phillip Andrew HENRY v Theunis VAN EEDEN [2005] NSWCA 14

FILE NUMBER(S):

40069/04

40033/04

HEARING DATE(S): 13 December 2004

JUDGMENT DATE: 11/02/2005

PARTIES:

Theunis Van Eeden (Appellant/Respondent)

Philip Andrew Henry (Respondent/Appellant)

JUDGMENT OF: Spigelman CJ Sheller JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC No. 10998 of 2001, DC No. 1971 of 2001

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:

P Blackett SC / P Nolan (Appellant - van Eeden)

K Rewell SC / W Fitzsimmons (Respondent - Henry)

A Morrison SC / R Royle (Appellant - Henry)

P Garling SC / BG Smith (Respondent - van Eeden)

SOLICITORS:

TJ Goudkamp of Stacks/ Goudkamp Solicitors (Appellant - van Eeden)

MJ Learoyd of PricewaterhouseCoopers Legal Lawyers (Respondent - Henry)

T Young of Tim Young & Associates Solicitors (Appellant - Henry)

DJ Hanna of Dibbs Barker Gosling Lawyers (Respondent - van Eeden)

CATCHWORDS:

NEGLIGENCE - Motor vehicle collision - No first hand evidence - Proof on the balance of probabilities - Claim and counter-claim dismissed

APPEAL - Whether trial judge drew correct inferences from primary evidence - Trial judge inferences upheld

COSTS - Discretion to award - Claim and counter claim - Each party separately represented as plaintiff and defendant - Courts should only award costs where justice requires double representation - Parties should seek leave to be separately represented - Courts should exercise discretion to award costs to create an incentive to ensure only one set of legal representatives appointed to represent an individual party - In the normal case a successful Plaintiff should receive one half of his or her costs and a successful defendant should receive one half of his or her costs

LEGISLATION CITED:

Motor Accidents Act 1988

Motor Accident Insurance Act 1994 (Qld)

Supreme Court Rules 1970: Part 1 Rule 3

DECISION:

1. Appeals allowed in part

2. That part of the order of Karpin DCJ that "the Plaintiff be ordered to pay the Defendant's costs" be varied by including the words "half of" before the words "the Defendant's costs"

3. Otherwise appeals dismissed

4. The Appellant in each appeal to pay one half of the Respondent's costs

JUDGMENT:

- 20 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40069/04

CA 40033/04

SPIGELMAN CJ

SHELLER JA

McCOLL JA

Friday 11 February 2005

Theunis VAN EEDEN v Philip Andrew HENRY

Philip Andrew HENRY v Theunis VAN EEDEN

Two cars collided on a remote rural road. There were no witnesses, and neither driver had any recollection of the circumstances of the accident. Each sued the other. The trial judge dismissed both claims on the basis that neither had established a breach of the duty of care.

The findings of primary fact were not challenged on appeal. Both Appellants submitted that the trial judge erred by failing to draw inferences from the facts that would lead to a finding of negligence.

At trial, and before the Court of Appeal, the two parties appeared with two sets of counsel and solicitors – one for each of their respective capacities as Plaintiff and Defendant, and later Appellant and Respondent. Each party, as Defendant, looked to their third party insurer for indemnity. Each insurer had the right to defend proceedings under their policy, but no rights in respect of the conduct of the respective driver’s proceedings as Plaintiff in the co-ordinate proceedings.

HELD per curiam

Liability

1. There was nothing in the objective circumstances to enable the Court to draw either of the inferences pressed at appeal. Each Appellant failed to establish a proper basis for drawing the inference favourable to his case. The trial judge was correct to reject each case for the reasons given. [23], [27], [69], [70].

Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140; Maher-Smith v Gaw [1969] VR 371; Hering v Martin [2004] QCA 70; (2004) 40 MVR 366; Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 referred to. Baker v Market Harborough Industrial Cooperative Society Ltd [1953] 1 WLR 1472; Wheatland v Dickson (1995) 22 MVR 431 distinguished.

Costs

2. The Court has a public duty to manage proceedings in such a way as to avoid parties incurring unnecessary costs. Part 1 Rule 3 of the Supreme Court Rules 1970 requires the Court to exercise its power so as to facilitate the just, quick and cheap disposal of proceedings. [31], [33], [69], [70].

3. When exercising the discretion to award costs the Court should only do so in a way which accepts double representation where the requirements of justice require that to be done. It is not a practice to be encouraged. [33], [39], [69], [70].

Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140; Maher-Smith v Gaw [1969] VR 371; Hering v Martin [2004] QCA 70 referred to.

4. In the normal case, there is no relevant conflict of interest, or possibility of conflict, justifying dual representation. This was the case in the present proceedings. [51], [59], [63], [69], [70].

Hinchcliffe v Carroll [1969] VR 164 referred to.

5. A Court should exercise the discretion to award costs so as to create an incentive to ensure that only one set of legal representatives are appointed to represent an individual party who appears in a dual capacity as a Plaintiff and a Defendant, whether in separate proceedings or in proceedings involving a cross-claim. In cases where dual representation is appropriate, a party should seek the leave of the Court in advance to be separately represented and, if leave is granted, full costs will generally be awarded. [64], [69], [70].

6. Where there is dual representation, in the normal case a successful Plaintiff should receive one half of his or her costs and a successful defendant should receive one half of his or her costs. That is the order appropriate in this case. [67], [69], [70].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40069/04

CA 40033/04

SPIGELMAN CJ

SHELLER JA

McCOLL JA

Friday 11 February 2005

Theunis VAN EEDEN v Philip Andrew HENRY

Philip Andrew HENRY v Theunis VAN EEDEN

Judgment

1 SPIGELMAN CJ: Two cars collided on a remote rural road. There were no witnesses. Both drivers were seriously injured, so seriously that neither had any recollection of the circumstances of the accident. Each sued the other. Judge Karpin dismissed both claims on the basis that neither had established a breach of the duty of care. Both Plaintiffs appeal to this Court.

Background Facts

2 The trial judge made the following findings, which were not contentious:

“These proceedings arise out of a motor vehicle accident which occurred on Burroway Road near Narromine between approximately 9.15am and 9.30am on Wednesday 9 December 1998. ... Mr Theunis Van Eeden, was travelling east on Burroway Road in his 1993 Toyota Hilux, Queensland registration No 098 BZH (‘The Toyota’). At the same time, Philip Henry ... was travelling west on Burroway Road in his 1996 VS Holden Commodore utility, registration No AGH 252 (‘The Holden’). Each driver was alone.

The weather was fine and hot. As they approached the point of impact both vehicles were travelling on an unmarked road with a good bitumen surface, running in a generally east west direction and varying in width from approximately 6 to 6.5 metres with a slight camber on each shoulder of approximately 1½ degrees, and a mild slope from east to west. The shoulders of the bitumen were quite stable. The bitumen edge on each side adjoins a sloping dirt and gravel shoulder, which appears to have a generally gentle slope into the surrounding grass area. The surrounding terrain is flat in appearance. The road travels through wheat paddocks, which were at that time, in the process of harvesting. There are occasional trees in the vicinity situated some distance back from the road, but the general visibility is good.

The point of collision was approximately 50 metres west of the conclusion of a gradual bend negotiated by the Holden.

The prevailing speed limit was 100 kph. It is common ground between all parties that as the vehicles approached the point of impact both were travelling well under the speed limit. It is also common ground that given the excellent conditions of both the roadway and the weather, it would not have been unreasonable for both vehicles to have been travelling at the speed limit of 100 kph as they approached the point of impact. The estimated probable speed of the Toyota as it approached the point of impact was no more than 65 kph. The estimated probable speed of the Holden at the commencement of the skid marks was between 50 and 79 kph depending upon whether there was two or four wheel lock up. In neither case could those speeds, whether somewhat greater or somewhat lesser, be the subject of adverse criticism. The careful documentation of items of debris at the scene of the accident assisted the experts in arriving at a broad general agreement as to the likely range of speeds of the vehicles at the point of impact. It is not necessary to traverse that aspect in detail since it is self-evident, and agreed by all parties, that neither vehicle was travelling at a speed which could be regarded as excessive in the prevailing circumstances.

The vehicles came into collision approximately in the middle of the road at a point 50 metres past the conclusion of the right-hand bend around which the Holden had travelled. The point of collision was just north of the notional centreline on the eastbound side of the roadway. There was a primary collision between the vehicles followed by a secondary impact, as they rotated following the primary impact. Both vehicles left the road. The Holden came to rest on the gravel road shoulder with its rear end approximately one metre from the southern bitumen edge with the vehicle facing in a generally southerly direction. Fire completely destroyed the front-end of this vehicle including the engine compartment and cabin interior. The fire exacerbated the difficulties involved in determining the cause of the accident. This vehicle had severe impact damage to the front nearside section as a consequence of the primary collision and less severe impact damage to the rear nearside section resulting from the secondary collision as the vehicles rotated.”

3 Her Honour made the following findings about the objective evidence:

“Two parallel tyre marks were located on the southern side of the road commencing approximately 20 metres from the conclusion of the sweeping right hand bend from round which the Holden emerged and travelling in a westerly direction for a distance of 29.7 metres. Those marks were entirely on the correct (southern) side of the road for the Holden.

The parties agree that the skid marks were caused by the Holden and that they are the result of heavy or emergency braking causing wheel lock up. Whether there was a two wheel lock up or a four wheel lock up was in issue. Although there was initially some difference of opinion as to whether, if there was two wheel lock up, it was the front or rear wheels, the consensus ultimately was that if only two wheels were involved, it would have been two rear wheel lock up.

The nearside or southern tyre mark commenced at 0.9 metre from the southern bitumen edge, concluding at a 1.0 metre from the bitumen edge. The northern, offside mark, commenced at a point 2.35 metres from the southern bitumen edge and terminated 1.9 m from the southern bitumen edge. Those measurements indicate that the tyre marks were converging after approximately 20 metres. There is, however, evidence to suggest the possibility that convergence commenced at around the 15 metre mark. Those skid marks remained throughout on the southern side of the road, being the correct side for the direction in which the Holden was travelling. The northern or offside skid mark terminated a little before the southern nearside mark.

Those skid marks extend in a straight line although angling slightly toward the southern side of the road to a point where the nearside mark is 0.5 metres from the southern bitumen edge before gradually moving away from the southern edge whilst remaining on the correct side of the notional centreline of the unmarked road. The marks travel in a generally parallel and straight line for the first 20.5 metres before commencing to rotate and ultimately rotating at a 51 degree angle rotation which caused the front nearside portion of the Holden to move into the notional incorrect side of the road to an extent variously estimated to be approximately 15–25 centimetres.

It is not in dispute that the converging tyre marks and the point at which those tyre marks terminate, are indicative of the Holden rotating in a northerly direction in the latter 10 metres of the skid. The most cogent evidence suggests that the vehicle rotated 51 degrees resulting in the front nearside of the Holden obtruding across the notional centre line approximately 25 cm at the point of impact. It is agreed that at the point of impact the rear wheels of the Holden were at the termination points of the skid marks.”

The Trial Judge’s Reasons

4 Karpin DCJ set out the issues she had to address:

“There is no dispute concerning the existence of the available physical evidence. The issue for the Court is what inferences can be drawn from those facts, and whether any inferences which can be drawn are sufficient to satisfy the burden of proof resting upon each Plaintiff in their respective cases.

Each of the Plaintiffs is faced with the same problem, namely, each bears the onus of proving on the balance of probabilities that the accident was caused, or substantially caused by the negligence of the other party, whether that be by act or omission, and whether that act or omission, if established, was the sole cause, or a causative factor in a series of relevant causal events.

Each Plaintiff denies liability and by his pleadings, as Defendant, avers that if he is found to have been negligent the Court should find that the other party contributed to the collision through his negligent act or omission.

The difficulty with which the Court is faced is exemplified by the various scenarios offered as to the cause of the accident. It must be borne in mind that the Court cannot simply choose one of several competing scenarios, each of which may provide an equally plausible explanation. The Court may accept the more probable of competing explanations and must reject those which are remote or fanciful.

Neither Plaintiff is able to given any account of what occurred and the parties very properly reached an agreement that no adverse inference would or could be drawn from the failure to call either Plaintiff.

There is limited physical evidence available to the experts in carrying our their attempted reconstruction and to the Court in arriving at a decision. For example, whilst there are skid marks left by the Holden, there are no marks left on the road by the Toyota which might assist in establishing its path prior to impact.

As a consequence of this lack of direct evidence, the Court is asked to draw inferences based upon the available physical evidence and the opinions of the accident reconstruction experts.

The ultimate finding that the Court is being asked to make in each case is that the physical evidence, and inferences which may be drawn from that available evidence, is sufficient to establish that the Plaintiff in each case has proved to the requisite civil standard, that the Defendant in each case breached his duty of care by an act or omission which caused or contributed to the accident.

That entails the Court making findings in four broad categories: what occurred as the vehicles approached one another in the second immediately prior to the accident; what events or other factors may have caused or impacted upon the circumstances as they unfolded in the seconds immediately prior to the accident; what occurred at the point of impact; and whether there was, in fact, any act or omission on the part of either driver which was either the sole cause of the collision or which contributed to it.

The available physical evidence standing by itself is not capable of constituting proof to the requisite standard which would allow the Court to make a finding in either case as to where responsibility lies. That evidence standing by itself does not provide a solution to the questions posed in the proceedings.

Thus, the Court must look to that evidence combined with the evidence of the experts in order to determine whether inferences can be drawn which when combined with the known facts, are capable of discharging the burden of proof to the requisite civil standard.”

5 Her Honour identified the rotation of the Holden as a critical factor:

“There is no dispute that over a distance of 20.5 metres the Holden was travelling in an essentially straight line and entirely on its correct side of the road. At about 20.5 metres the Holden commenced to rotate in an northerly direction, but on one argument may have commenced at 15.1 metres.

It is common ground that if the Holden had continued in the essentially straight line along which it travelled for the first 20.5 metres of the skid, the collision would not have taken place. It has not been possible to establish from the physical evidence to any degree of certainty, what may have caused the Holden to commence its rotation. A number of theories have been advanced. Those theories will be examined to determine if any one of them is sufficiently persuasive to provide an explanation which can be relied upon in reaching a decision in this matter.

The matters which cannot be agreed are: what caused the Holden driver to apply his brakes; whether there was a two or four wheel lock up as a consequence of that braking; what caused the Holden to commence rotation in a northerly direction; and, finally, the location and orientation of the vehicles immediately prior to, and at the point of impact.”

6 Karpin DCJ subsequently made the following findings:

“Depending upon whether it was a four wheel lock up or two wheel lock up, the driver may have retained some residual capacity to steer the vehicle. The consensus of expert evidence suggests that even with two wheel lock up, the capacity for a driver to control the path of the vehicle may be extremely limited, and in practical terms, in these circumstances, impossible.

On the totality of the evidence the more likely proposition is that the Holden was under a two wheel lock up if not from the commencement of the skid, certainly in the latter part of it. Assuming a two wheel lock up, the driver may have had a residual capacity to control the direction of the vehicle. That leads to a consideration of the cause for vehicle rotation immediately prior to the accident. The fact that the Holden rotated approximately 51 degrees to the north, prior to impact, is not disputed. The best evidence suggests that rotation commenced about 20.5 metres from the commencement of the skid marks. Several suggested causes for that rotation were canvassed. One suggestion is that the Holden driver had sufficient control of the vehicle to steer it in that direction. That seems the least likely proposition. The vehicle had been skidding in a substantially straight line for approximately 20.5 metres by the time rotation commenced, it seems singularly unlikely that if the driver had any level of control over the vehicle he would deliberately steer into the path of an oncoming vehicle. That leaves aside the outside chance that there was some unknown object or obstruction on the road which he was seeking to avoid. Clearly there was no other vehicle. It is difficult to believe that a driver faced with the choice between say, colliding with a kangaroo (an undoubtedly unpleasant and dangerous experience), or driving deliberately into the path of an oncoming vehicle, would choose the latter.”

7 Her Honour set out the expert evidence, much of which was contentious in ways which do not arise on appeal. She indicated the areas of common ground as follows:

“The physical evidence permitted the experts to agree on a number of factors including, within a range, the relative speed of the vehicles as they approached one another; the point at which the Holden braked and its trajectory under braking together with the point at which rotation commenced; the point of impact, and the point at which each of the vehicles impacted in relation to that particular vehicle, the nature of the secondary impact, and the rotation of the vehicles to the point where they came to rest.”

8 Her Honour was unable to make a finding of breach with respect to the cause of the rotation. She said:

“Regrettably it is not possible to arrive at a conclusion as to what caused the vehicle to rotate 51 degrees towards the middle of the road. It seems unlikely that camber of the road caused the rotation. If the driver retained a residual capacity to steer the vehicle, which has not been established, it is possible but highly unlikely that he deliberately steered into the path of an oncoming vehicle. A calliper failure or surface defect, both remain possibilities but neither is established to a point beyond that of a mere theoretical possibility. The cause of the rotation thus remains a mystery. The Court could not draw an inference, on the balance of probabilities, in the sense of being the more probable, that any of the theories explored provides an explanation for this event which was a causative factor, and more probably than not, the ultimate cause of the vehicles coming into collision.

Although ultimately both experts were able to agree the point of impact, which is not the point of impact calculated by Detective Salmon, neither was able to propound a persuasive view as to the path travelled by the Toyota as it approached the point of impact. Little can be inferred as to the Toyota’s steering, braking or location on the roadway up until the point of impact.”

9 Mr Alan Brown and Mr William Keramidas were called as expert witnesses. Her Honour made the following relevant findings:

“Both in his report and in evidence, Mr Brown agreed with the essential proposition of Mr Keremidas, that the ultimate cause of the accident was rotation by the Holden immediately prior to the accident into the path of the Toyota at an angle estimated to be approximately 50 to 51 degrees causing the front nearside of the Holden to protrude into the notional incorrect side of the road.

It is agreed that the Holden was skidding was approximately three seconds and that the rotation commenced at a point something less than one second before, impact leaving no time for driver response if the driver had a residual steering capacity and assuming that rotation did not occur because of any voluntary act on the part of the driver. There was broad agreement that the average reaction time for a driver is in the range of 1.5 to 2.5 seconds. Assuming, as the only rational explanation, that some external factor caused the vehicle to commence to rotate, neither driver had time within which they could react to that changed circumstance. Immediately prior to the commencement of the rotation, the available evidence suggests that whilst the vehicles may have been close to one another as they passed in opposite directions, they would not have come into collision.

So far as the Toyota is concerned the only matter which can be asserted with some certainty, and is agreed between Mr Brown and Mr Keramidas is its position at the point of impact. The evidence does not support a finding as to the position of the Toyota at the time it could first have been seen by the Holden driver; nor at the time that the Holden emerged from the sweeping bend; nor at the time the skid marks commenced nor, indeed, up to the point of collision. There is general agreement between the experts as to the speed of the Toyota at the time of impact, within reasonably broad parameters, but certainly agreement that it was travelling well under the speed limit, and well under a speed which was reasonable for the prevailing conditions. It is entirely within the realms of speculation as to whether that vehicle was travelling at a higher speed as it travelled towards the accident site and, perhaps upon sighting the Holden, reduced speed through braking but without locking its brakes. The front offside of the vehicle was clearly on the correct side of the road as is agreed between the experts. The extent to which, if at all, it was moving toward the northern boundary at the point of impact cannot be determined. It clearly had road space available to it which permitted it to pass the Holden with greater distance between the two vehicles, had the Toyota moved further to the northern side of the road.”

10 Her Honour summarised her findings:

“The evidence establishes the following.

The prevailing speed limit was 100 kph. Both vehicles were travelling well under the speed limit and well under speeds which would have been acceptable and safe considering the prevailing conditions.

Depending upon the precise speed at which the vehicle was travelling, the Holden skidded with locked up brakes for approximately three seconds prior to impact.

It is not possible to make a finding as to whether the Holden experienced two wheel or four wheel lock up. It follows, accordingly, that it is not possible to make a finding as to whether or not the driver had any residual capacity to steer the vehicle. Throughout the skid, the Holden was wholly on its correct side of the road until it commenced to rotate less than 10 metres prior to impact. That rotation commenced approximately one second or less prior to collision. It caused the front nearside of the Holden to project across the notional centreline on the unmarked road by 15 to 25 cms, and more probably by about 25 cms.

There is an agreed point of the impact established from the physical evidence.

If the Holden had continued to follow the path of the skid marks, the vehicles would have passed without incident. The rotation of the Holden was a cause of the accident. At the time the Holden commenced to rotate, less than one second elapsed prior to the point of collision. The average reaction time for drivers ranges between 1.5 seconds and 2.5 seconds, which is the time required to make an observation and commence to react to it. Once rotation commenced, neither party was in a position to react to it prior to the collision.

The cause of the rotation cannot be determined. The least likely proposition is that Mr Henry retained a residual capacity to steer the vehicle and deliberately steered into the path of the oncoming Toyota. The evidence does not support the theory that a broken calliper caused the rotation, nor, does the suggestion of an indentation or minor depression in the roadway provide more probable explanation. The only finding open to the Court is that it is not possible to determine what caused the rotation.”

11 Having been unable to identify any negligence in, or external cause of, the rotation, which was the immediate cause of the accident, her Honour turned her attention to the skidding of the Holden which culminated in its rotation. She had earlier said:

“The simple fact of a motor vehicle accident in circumstances such as these, does not raise a presumption of negligence.

It is no part of the Court’s function to engage in unfounded speculation. For example, various suggestions have been put forward as to what may have caused the Holden driver to apply his brakes. It is not open to the Court to make a determination on that issue unless, amongst those competing scenarios, there is one which can stand alone as a rational and more probable explanation for that action on the part of the driver. If there is more than one scenario which is equally probable, then the Court cannot make a finding. It is an attractive, and initially compelling scenario to make an assumption that the Holden driver, observing the approaching Toyota, applied his brakes. A closer analysis of that inference, diminishes its capacity to provide a compelling explanation for the ultimate collision, or establishing it as the more probable explanation for a causal chain of events.”

12 Karpin DCJ went on to make the following findings:

“Whatever caused the rotation, it can be assumed that had the vehicle been under usual driving conditions, and accordingly under the control of Mr Henry, there would have been no rotation. Thus, the fact of the Holden skidding, provides a causal connection between the rotation and the collision. That, however, is not sufficient to establish negligence on the part of Mr Henry.

The evidence will not permit a finding as to the orientation, speed, or mode of driving of either vehicle as they approached the point of collision area, until the first available physical evidence appears from the commencement of the skid marks made by the Holden. So far as the Toyota is concerned, there is virtually no evidence to establish those relevant facts prior to the point of impact. There is, however, sufficient evidence to establish that it was not travelling at excessive speed.

It is not possible to say whether the Toyota prior to impact was travelling in an essentially easterly direction barely on its correct side of the road; or whether it was travelling in a more north easterly oriented position but on its correct side of the road immediately preceding the impact.

Had the Holden continued to travel in accordance with the skid marks, and the Toyota remained in that portion of the road in which it was travelling the vehicles came into collision, no collision would have occurred.

There is no evidence as to when either driver became aware of the approaching vehicle with which he subsequently collided nor, since the Holden was skidding in a straight line could the Court be satisfied that the Toyota driver, upon observing the Holden should have realised it was skidding.”

13 With respect to the negligence alleged on Mr Van Eeden’s part, her Honour concluded:

“On the state of the evidence it is not possible to make any finding as to whether or not Mr Van Eeden’s failed to keep a proper lookout conduct in that regard. Similarly, it cannot be said that he failed to keep his motor vehicle under any or any proper control. He was travelling well under the prevailing speed limit and had he continued in the direction in which he was travelling, the most likely proposition is that the vehicles would have passed one another without incident. At the point at which the Holden commenced to rotate into the path of the Toyota it was far too late for Mr Van Eeden to apply his brakes and the available reaction time was too short to permit him doing so. At that point it is difficult to see that the application of the brakes would have made any difference to what occurred.

There is no evidence which would substantiate a finding that Mr Van Eeden was not exercising due and proper care, or that any such a failure was a causative factor in the accident and his asserted failure to steer or control his vehicle so as to avoid a collision is clearly not available to the Plaintiff having regard to the point at which the Holden commenced to rotate.

There is no evidence in relation to either driver that they were driving in an excessive speed in the circumstances. Indeed, all the available evidence suggests otherwise. There is no evidence that would sustain a finding that the Toyota was on the incorrect side of the road or that it was travelling in that position either prior to or at the point of impact.

The only known ultimate cause of the accident was the rotation of the Holden into the path of the Toyota. A penultimate cause of the accident, accordingly, was the skidding of the Holden. Thus, what caused the Holden driver to apply his brakes at emergency pressure, causing the brakes to lock up and the vehicle to skid, is a question which is essential to a determination of fault. It is prima facie attractive to infer that the Holden driver observed the Toyota either on the wrong side of the road or in the middle of the road as he emerged from the bend and applied emergency braking as the vehicles approached one another. The evidence does not support that proposition. It is not possible to find where the Toyota was situation at the time the Holden emerged from the bend nor at the time emergency braking was applied.”

14 As to the alleged negligence on the part of Mr Henry, her Honour concluded:

“It is not possible to find that Mr Henry behaved unreasonably in applying emergency braking or that he so managed or failed to control his vehicle that he should be held responsible for the accident. No finding can be made as to why he applied emergency braking and no finding of negligence on his part can flow from that fact alone. The vehicle was skidding in a straight line effectively on the correct side of the road, indeed veering mildly toward the southern, and accordingly from his point of view, correct, side of the road. It is not possible to make a finding as to what caused the rotation. It is certainly not possible to make a finding that any act or omission of the Holden driver brought that about. Nor that the vehicle suffered a catastrophic failure resulting from a broken calliper; nor that the minor indentation or depression in the road caused the rotation.”

15 Finally, her Honour concluded:

“In order for the Plaintiff Mr Henry or the Plaintiff Mr Van Eeden to succeed in their actions one against the other, they must discharge the onus of proving that the other was in some manner negligent, such negligence being constituted by an act or omission which breached the duty of care that each owed to the other and which either was the cause or a contributing cause of the accident, and the damage that ensued.

From a humane point of view, having regard to the appalling consequences suffered by both these men as a result of this accident, there is a temptation to find each of them breached that duty of care, that each of them contributed in some way to the accident. After anxious deliberation I have not been able to come to that conclusion.”

Issues on the Appeal

16 Neither Appellant submitted that her Honour committed any error of law. Nor were her Honour’s findings of primary fact challenged. Each appeal was directed to the inferences which her Honour ought to have drawn.

17 Her Honour disposed of a number of hypotheses which are not pressed on the appeals. Specifically, her Honour’s finding that the reason for the immediate cause of the accident – the rotation of the Holden which took it onto the wrong side of the road – could not be determined, was not challenged on the appeal. It was common ground that the rotation was a consequence of the braking.

18 Each appeal focused on what caused the Appellant Henry to apply his brakes with sufficient force to make the wheels lock and to keep applying that force for the period of two seconds until the rotation of the Holden commenced. That period of two seconds is not a short period in the context of an accident and was preceded by a period of, probably, one and a half seconds, being the reaction time between the stimulus to apply the brakes and their actual application. At the speed the two cars were going there was probably something of the order of 200 metres between the cars at the time the perception that caused Mr Henry to apply his brakes first occurred.

19 Mr A Morrison SC, who appeared for the Appellant Henry, submitted that the more probable inference was that his client perceived an emergency in the form of the Toyota proceeding on a collision course on the wrong side of the road. He relied on the fact that his client maintained the brakes for a lengthy period to ground an inference that he must have perceived a real danger.

20 Mr Morrison also relied on the fact that at the point of impact the Toyota was almost in the middle of the road and not as far over as it could have been. In contrast, the skid marks of the Holden showed that at the time the brakes were applied it was towards the edge of the road on its correct side, and remained well over during most of the skid.

21 Reference was also made to the fact that the driver of the Toyota did not apply his brakes with sufficient force to cause any skid marks. However, the Holden’s skid marks show that it was well over on its side of the road until the last moment when the rotation occurred.

22 On the other hand, Mr P Blacket SC, who appeared for the Appellant Van Eeden, submitted that the distance between the cars at the time the Holden brakes were first applied, being about 200 metres, was such that a driver of ordinary skill would be able to apply the brakes in a fashion that would have avoided the collision and that to maintain the brakes for a period of two seconds prior to the rotation could only be explained by inexperience, inattention or overreaction to the approach of an oncoming vehicle.

23 In my opinion there is nothing in the objective circumstances to enable the Court to draw either inference. It may be that only a little negligence is sufficient before giving rise to issues of contributory negligence, nevertheless, in my opinion, her Honour was correct to reject each case for the reasons her Honour gave. There is nothing novel about such an outcome. (See Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140; Maher-Smith v Gaw [1969] VR 371; Hering v Martin [2004] QCA 70; (2004) 40 MVR 366.)

24 The facts of this case do not permit the convenient outcome in Baker v Market Harborough Industrial Cooperative Society Ltd [1953] 1 WLR 1472. The rotation of the Holden occurred in a way that neither driver could have avoided the collision. Nothing in the evidence of the skidding indicates that one or other, let alone both, drivers were at fault. (Cf Wheatland v Dickson (1995) 22 MVR 431.)

25 Each Appellant’s submission proceeds on the basis of an assumption that there was no inappropriate conduct, let alone negligence, on the part of that Appellant and, accordingly, that there is a proper basis for an inference that the other party was at fault.

26 The Appellant Henry’s case assumes that his own act of applying the brakes and maintaining them for a lengthy period was a proper response to a threat, most likely the fact that the Toyota was on the wrong side of the road. The Appellant van Eeden’s case assumes that he was on the correct side of the road and that, accordingly, Mr Henry’s conduct in applying and maintaining the brakes was negligent. There is no evidence, or proposition about the ordinary course of events, which can justify either assumption.

27 Even setting aside the assumptions to which I have referred, each Appellant must establish a proper basis for drawing an inference that the application and maintenance of the brakes indicated negligent conduct by the other party. There is an available inference that Mr Henry perceived an emergency, but there is no basis for concluding that, more probably than not, Mr Van Eeden’s conduct caused that perception. Even assuming that the perception was accurate, it could have been caused by anything. Nor is there a basis for inferring that Mr Henry’s perception, or his reaction to it, was negligent on Mr Henry’s part.

28 This is a case, like Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 in which Dixon, Fullagar and Kitto JJ said at 359:

“It is quite impossible to reconstruct from any materials the manner in which he and the supposed car or vehicle came into contact. It can be done only by conjecture. But a number of conjectures is open, equally plausible.”

29 As in Nesterczuk, the facts of the present case lead to the conclusion that neither Appellant discharged his onus of proof. Each appeal should be dismissed.

Costs

30 In these proceedings the two parties appeared with separate representation in their respective capacities as Plaintiff and Defendant. Accordingly, the Court had before it four sets of solicitors and four sets of counsel. This double representation added significantly to the costs of the proceedings.

31 The Court must be careful to ensure that proceedings in courts are conducted economically and efficiently. It must do so in order to maintain public confidence in the administration of justice and to enhance access to justice. The Court has a public duty to manage proceedings in such a way as to avoid parties incurring unnecessary costs.

32 This duty is reflected in the Rules of the Court which relevantly provide in Part 1 Rule 3:

“3(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings.

(2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule.”

33 One of the powers which the Court must exercise in such manner, is the power to award costs. In my opinion when exercising the discretion to award costs the Court should only do so in a way which accepts double representation where the requirements of justice require that to be done. I accept that such cases will arise but, in my opinion, would do so rarely.

34 The relevant steps in the present proceedings were as follows:

(i) On 12 March 2001, Mr Van Eeden filed his Statement of Claim seeking to recover damages from Mr Henry. So far as is known Mr Van Eeden did this at his own risk as to costs.

(ii) The Defendant, Mr Henry, no doubt immediately looked for indemnity to his third party insurer, Allianz Ltd. On 28 October 2002, Mr Henry filed a defence.

(iii) On 2 November 2001, Mr Henry filed a Statement of Claim to recover damages from Mr Van Eeden. So far as appears he did so at his own risk as to costs.

(iv) The Defendant, Mr Van Eeden, no doubt immediately looked for indemnity to his third party insurer QBE Ltd. A defence was filed on 12 May 2003.

35 In the case of Allianz the statutory insurance provisions are found in the Motor Accidents Act 1988. In the case of QBE the relevant statutory provisions are found in the Motor Accident Insurance Act 1994 (Qld). In each case there was a statutory contract of insurance which did not relevantly differ. Each policy gave the insurer the right to defend proceedings but did not give the insurer any rights in respect of the conduct of the respective driver’s personal proceedings.

36 The end result is that QBE is interested only in the personal injury claim against Mr Van Eeden and not in their client’s personal injury claim against Mr Henry. Similarly, Allianz is interested only in claims against Mr Henry for personal injuries by Van Eeden and has no interest in Mr Henry’s claim against Van Eeden.

37 The Court raised with the parties the question of whether or not, in case each appeal was unsuccessful, the Court should nevertheless allow the appeal with respect to the order of costs alone and make a special order with respect to the costs of appeal of a kind which did not allow costs in whole or in part.

38 Mr P Garling SC, who appeared for the Respondent Van Eeden on behalf of QBE and Mr K Rewell SC, who appeared for the Respondent Henry on behalf of Allianz, each submitted that the trial judge’s order as to costs should not be disturbed and that the normal order that costs follow the event should be made if the appeals were dismissed.

39 Counsel who appeared in this Court agreed that double representation was a frequent occurrence. Indeed one said that it was an invariable practice, perhaps reflecting the practice of that particular insurer. It is not a practice which this Court should encourage. I note that neither in Nesterczuk supra (and see (1965) SASR 81), nor in the cases which applied it, Maher-Smith supra and Hering supra, was there dual representation.

40 There was of course no legal impediment to the separate representation of Mr Henry and Mr Van Eeden in their respective capacities as Plaintiff and Defendant. Nevertheless this Court has a discretion with respect to the award of costs and could refuse to make an order for costs in favour of a party whose separate representation was unnecessary or inappropriate.

41 Mr K Rewell SC submitted that the separate representation in this case was not only appropriate but essential. He submitted that it would have been impossible in the circumstances for the same legal representatives to appear for either of the drivers in their separate capacities. He said that the submissions which proved successful, both before Judge Karpin and in this Court, to the effect that each Plaintiff failed to discharge his respective onus, was the outcome supported by the evidence. He said that such a submission could not have been made if the persons had not been separately represented in their capacity as Defendants. He also submitted that the preparation of each case involving expert evidence could have been compromised without such separate representation. The gathering of expert evidence, for example, could have been directed to demonstrating either of two things: that the particular driver was not negligent; or, on the other hand, that the other driver was negligent. He also submitted that this divergence in approach would have impeded settlement negotiations and may have affected cross-examination. He referred to the possibility that counsel for each Plaintiff could have been instructed by the drivers to agree that one or other, or both, may succeed, but that both drivers could not fail. Finally he submitted that if, as transpired, the trial judge made a decision that both Plaintiffs should fail, instructions could not readily be obtained as to whether an appeal should be lodged. There were, he submitted, four separate legitimate interests to be represented in the trial.

42 During the course of oral submissions Mr Rewell SC expressed his essential proposition in the terms that it would not have been possible for a single legal representative to put to the Court the very outcome of these proceedings, i.e. that both Plaintiffs should lose.

43 Mr P Garling SC submitted that where there is a real possibility, or alternatively a likelihood, of a conflict of interests arising between a Plaintiff and his or her insurer then double representation is appropriate. In such a situation, and on the facts of the present case in this case, one set of solicitors and counsel could not have represented all of the relevant interests of either individual as Plaintiff as well as the interests of his insurer, without conflict or the realistic possibility of conflict.

44 He submitted that neither Mr Van Eeden nor Mr Henry had any direct or indirect financial interest in the defence of the proceedings against them and QBE and Allianz had no direct or indirect financial interest in the case brought by their insured against the other insurer. He accepted that each had an interest in defending the proceedings against them to the extent to which there may have been a finding of contributory negligence reducing their entitlement to damages. However, their primary interest was in proving negligence against Allianz and QBE respectively. He submitted that the interests of the two drivers was not wholly aligned with those of QBE and Allianz, because the submission that there was no negligence by either driver was in the interests of QBE and Allianz but was contrary to the interests of each of Mr Henry and Mr Van Eeden. Accordingly, it would not have been possible for one set of solicitors and counsel to represent Henry and Allianz or for one set of solicitors and counsel to represent Van Eeden and QBE.

45 Mr Garling SC drew particular attention to some evidence of the expert Mr Brown who raised the possibility of mechanical failure of the calliper of Henry’s vehicle as the actual cause of the rotation. This could have led to a finding that there was an inevitable accident by reason of mechanical failure, for which neither party was responsible and for which neither could be held liable. It was submitted that such an alternative was in the interests of QBE and of Allianz but was wholly contrary to the interests of Van Eeden and Henry. In that regard a single counsel appearing for both QBE and Van Eeden would have been placed in a position of direct conflict. There was, accordingly, in this very case, a real possibility of a conflict of interest.

46 In my view it is not correct, to use the terminology of Mr Rewell SC, that both Plaintiffs lost. What happened in this case was that each Plaintiff lost.

47 Subject to the issue of mechanical failure, to which I will refer below, it is wrong to say that, in the usual case of this character, an issue in the trial arises to the effect that neither driver was negligent. In the usual case no issue arises for which either evidence or submissions are directed to the proposition that neither driver is negligent that are of a character different from evidence and submissions directed to the conduct of each individual driver.

48 Subject to the question of mechanical failure, the Court’s attention was not drawn to any example of a situation in which distinctive evidence could be directed to the proposition that neither driver could have been at fault. Nor was there any example put as to why submissions canvassing different possibilities could not reasonably be put in the alternative.

49 In my opinion, no relevant conflict of interest arises in the case of a legal practitioner who advances alternative arguments, perhaps even inconsistent alternative arguments. That is a position which parties and their legal representatives can and do adopt in many situations. The degree of inconsistency may be such that double representation is appropriate in a particular case. That is a matter to be determined on a case by case basis although, as I have said, I would expect the number of such cases justifying double representation to be few.

50 I do not find that there is any difficulty in an insurer of a client directing legal representatives and counsel to prepare and conduct a case and to pursue any settlement or give advice on prospects of appeal, strictly on the basis of the instructions of the insurer with respect to the conduct of each respective defence. In the usual case, in his or her capacity as plaintiff, each insured has the same interest as the insurer to deny that he or she committed any act of negligence and, if there were an act of negligence, to minimise his or her own contribution and to maximise the negligence of the other party. Neither insured has any interest in advancing the proposition that he himself was in any way negligent.

51 Furthermore, as I have said, no issue ordinarily arises that both drivers did not breach their duty of care which is in any way distinguishable from the cumulative effect of the proposition that each did not breach their duty of care. In my opinion, in the ordinary case, there is no relevant conflict or possibility of conflict justifying dual representation. Specifically the result in the present case, i.e. that each Plaintiff failed to discharge his onus, could arise from an entirely unimpeded defence case conducted by legal representatives on the instructions of the insurer alone and any settlement negotiations or decisions about appeal could have been conducted on the same basis.

52 I turn to the example of the particular conflict said to arise from the evidence of Mr Brown concerning the possibility of the rotation having occurred by reason of the mechanical failure of the calliper on Mr Henry’s vehicle. Mr Brown was called as the expert witness in Mr Henry’s case as Plaintiff. The basic thrust of his evidence was directed to establishing the probable travel path of Mr Van Eeden’s vehicle as it approached the point of impact. In the event, the models he used were not able to establish that matter.

53 The issue of the broken calliper raised by Mr Brown was of equivalent relevance to an issue raised by Mr Keramidas, the expert called on behalf of Mr Van Eeden, raising the possibility that the front nearside wheels of the Holden struck a small indentation or depression in the road. Each of these possibilities, relating to either the calliper or the camber, was advanced to explain the last moment rotation of the Holden.

54 Her Honour rejected both of these explanations of the rotation in coming to her ultimate conclusion that the rotation could not be explained. This focused the attention of her Honour, as has remained the focus in this Court, on the issue of what caused the skidding to commence.

55 Mr P Garling SC’s submissions suggested that the issue of the calliper raised the possibility of an independent mechanical failure and drew attention to the fact that this theory of the accident was the subject of cross-examination by senior counsel for QBE acting for Mr Van Eeden in his capacity as a Defendant. During the course of that cross-examination Mr Brown conceded that the ultimate rotation was caused by the “coincidence of the calliper failing” and that that was so “whatever may be the reason for the emergency braking” (Black AB 125 I-N).

56 The first thing I should note is that this issue does not justify separate representation on the appeal. No point was taken that her Honour erred in rejecting Mr Brown’s hypothesis that there had been a calliper failure.

57 In his evidence in chief on this matter Mr Brown had accepted the proposition that the maximum stress upon a calliper would be under prolonged emergency braking (Black AB 95K). He did not draw that connection in his original report which was directed to the proposition that the calliper failure caused the rotation, concluding that without this failure the accident would have been avoided (Blue AB 100 L-N and 103 I-J). He also expressed the opinion that the accident would not have occurred unless the Toyota was in the middle of the road as it approached the accident site because the Holden would not have braked (Blue AB 103 M-O and 104M).

58 Accordingly, the thrust of Mr Brown’s report was that the accident would not have occurred if either one of two things had not happened, i.e. if the Holden had not rotated or if the Toyota had been on the correct side of the road. This was the evidence called by Mr Henry as Plaintiff. That case proceeded, correctly in my opinion, on the basis that Mr Van Eeden’s alleged fault leading to the emergency braking satisfied the requirements of causation for purposes of his action, irrespective of whether or not the accident would not have occurred but for the mechanical failure of the calliper.

59 In these circumstances I can see no basis on which it could be suggested that there was any possibility of a conflict of interest with respect to Mr Henry’s representation as, respectively, Plaintiff and Defendant. Although such a suggestion was made by Mr Garling appearing for QBE, it was not made by Mr Rewell SC, who appeared for Allianz the relevant party in this regard.

60 Mr Garling SC’s position must be based on a conflict in the representation of Mr Van Eeden, i.e. that Mr Brown’s calliper theory has some different effect on Mr Van Eeden’s case as Plaintiff than it had on Mr Van Eeden’s case as Defendant. No such conflict was identified with any precision. A submission that an independent factor was the sole cause of an accident, not as an alternative, could give rise to a relevant conflict. (See Hinchcliffe v Carroll [1969] VR 164.) That was not suggested here.

61 The suggestion was made that Mr J Gleeson QC, who appeared on the instructions of QBE at first instance, had cross-examined in a way that accepted the calliper theory. Mr P Blackett SC who appeared for Mr Van Eeden in his capacity as Plaintiff, both below and in this Court, had cross-examined Mr Brown with a view to a rejection of the calliper failure theory (Black AB 172-179). The Court’s attention was not directed to any divergence in submissions put below in this regard.

62 I am unable to detect any relevant conflict in this case. Mr Gleeson’s cross-examination below (at Black AB 124-125) appeared to be content with the answer that mechanical failure of the calliper was not itself directly related to the emergency braking. That Mr Blackett SC was not so satisfied, but proceeded to attack the theory itself, does not indicate that there was any relevant conflict on the part of the two representatives of Mr Van Eeden. It is noteworthy that counsel for Mr Henry in his capacity as Defendant, acting on the instructions of Allianz, did not seek to cross-examine in support of the calliper failure theory.

63 On the basis of the above analysis the issue of the calliper failure did not give rise to any possibility of conflict such as to justify dual representation with respect to either driver.

The Exercise of the Costs Discretion

64 A Court should exercise the discretion to award costs so as to create an incentive to ensure that only one set of legal representatives are appointed to represent an individual party who appears in a dual capacity as a Plaintiff and a Defendant, whether in separate proceedings or in proceedings involving a cross-claim. There will be cases where dual representation is appropriate. A party should seek the leave of the Court in advance to be separately represented and, if leave is granted, full costs will generally be awarded.

65 Proceedings are commenced by a Plaintiff and, at that stage, the legal representatives most conversant with the relevant facts are those that appear for the Plaintiff. Although this factor may suggest that those representatives have some advantage when it comes to determining the representation of the Defendant in the co-ordinate proceedings, that should not be assumed. Pursuant to the statutory policy, the insurer has a right to assume carriage of the defence and, therefore, has every right to its own first choice of counsel. The Plaintiff in his own right and the insurer, after assuming carriage of the defence, have a right to be represented by legal representatives of their choice.

66 In some respects it may be unfortunate from the point of view of the profession, but the reality in this State and elsewhere is that certain legal practitioners tend to represent Plaintiffs to a preponderant degree and other legal practitioners represent Defendants to a preponderant degree. In neither case is it necessarily an exclusive practice, but there is a distinct difference in the focus of the practice of different practitioners. In such an environment the choice of separate representation is understandable, but that does not mean that this Court must validate the practice.

67 The exercise of the costs discretion should be directed to giving the litigant and his insurer an equal incentive to ensure that only one set of legal representatives are involved, at least after the initial stages of filing of pleadings. That incentive would arise if, in the normal case, a successful Plaintiff would only receive one half of his or her costs if he or she were separately represented in the capacity of a Defendant. Similarly a successful Defendant would only receive one half of his or her costs. That is the order appropriate here.

68 The orders I propose are:

1 Appeals allowed in part.

2 That part of the order of Karpin DCJ that “the Plaintiff be ordered to pay the Defendant’s costs” be varied by including the words “half of” before the words “the Defendant’s costs”.

3 Otherwise appeals dismissed.

4 The Appellant in each appeal pay one half of the Respondent’s costs.

69 SHELLER JA: I agree with the Chief Justice.

70 McCOLL JA: I agree with the Chief Justice.

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LAST UPDATED: 28/02/2005