Benedetti v Benedetti
[2017] WADC 103
•17 AUGUST 2017
BENEDETTI -v- BENEDETTI [2017] WADC 103
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 103 | |
| Case No: | CIV:832/2015 | 14-17 & 20 MARCH, 4 MAY & 30 JUNE 2017 | |
| Coram: | STONE DCJ | 17/08/17 | |
| PERTH | |||
| 35 | Judgment Part: | 1 of 1 | |
| Result: | The plaintiff's claim against the defendant is dismissed The defendant's claim against the third party is dismissed | ||
| PDF Version |
| Parties: | BRIAN BENEDETTI MATHEW RYAN BENEDETTI INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Motor vehicle accident Liability Turns on own facts Leave to reopen case after trial |
Legislation: | Evidence Act 1906 (WA) s 11, s 21, s 22, s 79C |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MATHEW RYAN BENEDETTI
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party
Catchwords:
Motor vehicle accident - Liability - Turns on own facts - Leave to reopen case after trial
Legislation:
Evidence Act 1906 (WA) s 11, s 21, s 22, s 79C
Result:
The plaintiff's claim against the defendant is dismissed
The defendant's claim against the third party is dismissed
Representation:
Counsel:
Plaintiff : Mr B L Nugawela & Mr K Wong
Defendant : In person
Third Party : Mr M D Cuerdin SC & Mr D M G Burton
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Not applicable
Third Party : SRB Legal
Case(s) referred to in judgment(s):
Nil
- STONE DCJ:
Introduction
1 The dispute in this trial is whether the plaintiff, Mr Brian Benedetti or his son, the defendant Mr Mathew Benedetti was the driver of a motor vehicle that was negligently driven and collided with a tree, as a result of which the plaintiff and the defendant sustained injuries.
2 The plaintiff alleges that the defendant was the driver at the time of the accident. The defendant agrees that he was the driver. The third party, the Insurance Commission of Western Australia, disputes that the defendant was driving the motor vehicle at the time of the accident. The third party claims that the plaintiff was driving. The third party contends the plaintiff has no claim against the defendant and the third party has no liability in respect of the plaintiff's injuries.
3 The quantum of the claim made by the plaintiff for his injuries has been agreed with the third party.
The issue
4 Whether the plaintiff can establish the defendant was the driver.
The evidence
5 The defendant was called as the plaintiff's first witness. The plaintiff remained outside the courtroom whilst the defendant testified.
6 During cross-examination the defendant declined to answer drug related questions on the ground that his answers might incriminate him. He was compelled to answer the questions. At the conclusion of his testimony he was granted a certificate pursuant to s 11 of the Evidence Act 1906 (WA) as his evidence was given satisfactorily.
7 The defendant left the courtroom after he gave his testimony and he took no further part in the trial until the plaintiff applied for leave to re-open the plaintiff's case.
Mathew Benedetti
8 The defendant gave evidence-in-chief that in August 2013 he was in an 'on/off' relationship with his fiancée, Ms Wright with whom he had a son, Jayden aged 4 months. Ms Wright and his son were residing in Leda. He was residing with his parents at their home in Munster. He had the use of his father's car, a two door Toyota Starlet hatchback (the car). He also used the car as transport to his work.
9 At about 3.30 pm on 30 August 2013 the defendant arrived home from work. He cleaned the car before he got ready to go to a 60th birthday party and visit his son on the way to the party.
10 There were then the following exchanges between Mr Nugawela and the defendant (ts 28, 29), to which I attached very little weight, because what was said by the defendant might have been the result of nervousness in the witness box:
So what were you going to do first, go to the 60th, or go visit your son? - - - No, I was - Dad was driving me to - down there to see - to drop me off at the party.
And you were waiting for Dad to - - - ?- - - To get ready. He was coming down with me to see Jayden, and then he was dropping - or I was getting out, going to the 60th, and he was bringing the car home.
11 The defendant intended to visit his son with the plaintiff before he was dropped off at the party and the plaintiff brought the car home. He had made these arrangements with the plaintiff because it was an opportunity for them to visit his son and he anticipated drinking at the party.
12 The defendant and the plaintiff departed at about 7.00 pm. He was driving and the plaintiff was in the front passenger seat.
13 The defendant described his intended route. He was in a rush because he was running late for the party and he had to see his son. His speed as he approached and then entered a roundabout, on Hope Valley Road in Hope Valley, was between 60 - 70 km per hour. As he came out of the roundabout he sped up to between 70 and 80 km per hour. It was raining and 'pretty wet'. The plaintiff yelled out something which startled him. He jerked the steering wheel to the right. When the car slid to the left, he tried to correct the car and straighten it, but he went too far. The car swung around 180 degrees before it slid off the road and sideways into a tree. The tree and the car impacted behind the right driver's door before the car bounced around (clockwise) so that it was facing the road. He could not open the driver's door because it was damaged. After the plaintiff got out the passenger door, he found his mobile telephone and climbed out the passenger door. He then telephoned Ms Wright for assistance.
14 The defendant described how he sustained seat belt injuries extending from his right shoulder over his right breast to his left hip and felt pain in that area. He felt pain in his whole torso. He was in shock. He sat on a slight embankment waiting for Ms Wright. He observed the plaintiff wandering around (the car) trying to pick up things.
15 At some stage after Ms Wright arrived at the accident scene, the defendant's mother turned up and she told Ms Wright to take him to hospital.
16 The defendant had a recollection of being taken to hospital, feeling sore, being placed in a wheelchair when he was unable to get out of Ms Wright's car, passing out, being pushed into the Emergency Department Triage Section, going through doors into a cubicle and put into a bed (in the Emergency Department Ward). His pain level was about 9. He also recollected being rolled over and checked. '[He] kept passing in and out of consciousness from the pain'. He had no recollection of talking to anyone in the Emergency Department. In the morning his sister picked him up after he was discharged from hospital.
17 The defendant made a police report shortly after the accident (as the driver).
18 In his own case, the defendant gave evidence-in-chief that he came 'through the roundabout too fast and got startled from [his] dad telling [him] to pretty much slow down or … [he] didn't know exactly what he said to [him] at the time. But he yelled something, it startled [him], and [he] lost control. Skid to the left, then skid to the right and into a tree'. At the hospital he was 'just in and out of consciousness'.
19 During cross-examination the defendant described his movements when the right side of the car impacted the tree. His first movement was sideways to the right hand side upon impact until the seat belt caught him. He could not recall how his body reacted thereafter other than that his body and the plaintiff's body collided.
20 The defendant did not recall saying to a triage nurse that he was 'the front seat passenger'. He did not recall saying to a triage nurse that he was intoxicated. He did not recall saying to a second triage nurse that he was 'the front seat passenger'. He did not recall saying to a female doctor that he was a 'front seat passenger wearing a seat belt'.
21 The defendant described discharging himself from hospital on the morning of 31 August 2013 and noticing that he had bruising on the right side of his upper body that effectively mirrored the seat belt he wore. On 1 September 2013 his mother took photographs of his bruising (the photographs of the defendant's bruising). He had the bruising for a couple of weeks. His whole body was stiff for a couple of days. He had pain in his right shoulder.
22 In re-examination the defendant agreed that on 2 September 2013 he completed and signed a Western Australia Police Report of Road Traffic Crash (WAPR RTC) form for the accident as the driver. He also agreed that on 3 December 2013 he completed and signed an Insurance Commission of Western Australia Crash Report Form (ICWA CR) form for the accident as the driver.
Brian Benedetti
23 The plaintiff gave evidence-in-chief that he was the registered owner and the insured owner of the car. As he had the use of a work truck and his wife had her own vehicle, his son drove the car '24/7'.
24 At about 4.00 pm on 30 August 2013 when the plaintiff returned home from work, the defendant was cleaning the car. His wife was at work. He got dinner ready and waited for his wife. He had arranged with the defendant to visit his grandson in Leda. His wife arrived home at about 6.45 pm. At about 7.00 pm he and the defendant left. The defendant was driving the car. It was raining moderately.
25 The plaintiff described the route taken to Hope Valley Road. It was raining heavily as there had been a 'massive squall'. The defendant was speeding and he told him to slow down because of the rain. When the defendant flew through the roundabout he said or yelled 'slow down, rain'. The defendant 'lost it' on a bend; slid around the bend, slid down (an embankment) and hit a tree on the driver's side. He described how he had his right hand on the dashboard. He hit the defendant and then he hit the passenger door, hitting his head. His left shoulder struck the passenger door and his head struck the (door) window. He got out of the car through the passenger door. He saw the defendant crawling out over the (front) passenger seat. The defendant said '[he] was sorry and asked if [he] was okay'. Thereafter things became vague. He was wandering around trying to figure out what happened.
26 At some stage the plaintiff saw the defendant on the embankment with Ms Wright. The defendant kept calling out, 'Are you okay? I'm sorry, I'm sorry?'. He then saw his wife. He climbed up the embankment to the road. He got into the driver's seat of his wife's vehicle because it was raining. His wife was looking in the glovebox for a torch or some paperwork so she could call the RAC. In the meantime Ms Wright had taken the defendant to hospital.
27 After an ambulance arrived, a female ambulance officer told the plaintiff to leave his wife's vehicle and get into the ambulance so 'they could have a look at [him]'. In the back of the ambulance the ambulance officers checked him over and asked him questions. He was disorientated and '[he] could not remember what was really going on in the ambulance'. At that time his wife was in her vehicle. After he got back into his wife's vehicle, the ambulance officers told his wife he 'possibly had concussion' and to take him to hospital. His thought processes were very scrambled. He was thinking about an accident in 1991 when he rolled a 5-tonne truck which slid into a tree and he had to be cut out of the cab.
28 After his wife drove him to hospital, the plaintiff recalled sitting in the Emergency Department Triage Section, a nurse giving him two Panadol tablets, his wife leaving to see the defendant, going to the defendant's cubicle (in the Emergency Department Ward) and seeing them there, sitting next to his wife and 'dozing on and off'. He was in pain. He did not recall speaking to anyone. His wife took him home from hospital and he went to work the next day.
29 In December 2013 the plaintiff stopped work because of a sore right shoulder.
30 During cross-examination there were the following exchanges between Mr Cuerdin and the plaintiff (ts 149) to which I attached very little weight because what was said by the plaintiff might have been the result of nervousness in the witness box:
Yes - - - And he said he wanted to go to see Jayden, and then he was going to go on to a birthday party. I said, 'Well, I'd like to go and see my grandson, and if you want to go to the party, I'll drop you there and I'll bring the car home.' That was the idea of me going in two senses, if you know what I mean.
What do you mean when you say you would drop him at the party - - - Hm?
You just said - I think you said that you said to Mathew - - -?- - - I would take him to the party, leave him there.
Yes - - - And then I'd bring the car home.
31 The plaintiff could not recall what happened to the car, after the defendant 'started to lose it' on the slight bend beyond the roundabout and before the car hit the tree. He recalled putting his right hand on the dash, moving to the right when the car hit the tree, his right shoulder slamming into the defendant's left shoulder or upper left side, his left shoulder then slamming into the passenger door and his head hitting the passenger window. He sustained an injury to the side of his left eyebrow. He was disorientated. He suffered from concussion. He felt nauseous. He felt sore over both shoulders. His head was sore; the whole left side of his face. His legs were not sore. His stomach was sore. The right side of his chest, just below the shoulder was sore.
32 The plaintiff recalled seeing a female paramedic get out of the ambulance. He got into the side or back of the ambulance where he was observed by one or two paramedics. He did not recall what was done to him by the paramedics. He recalled that one of the paramedics asked him what happened. He did not say '[he] was driving at approximately 70 kph and [he] swerved to avoid an obstacle on the road and slid off the road and hit the tree'. He told the paramedic '[he] had had an accident, [he] was recurring [sic] an accident [he] had in 1991 when [he] rolled a truck over just this side of Waroona, at about 2 o'clock in the morning'. He believed he said that because of flashbacks from the 1991 accident. He did not recall being asked any other questions by the paramedics. He did not recall speaking to the paramedics about anything apart from the 1991 accident.
33 In the 1991 accident he was driving the truck at 100 km per hour when he swerved to avoid an obstacle on the road. The truck rolled and slid into a tree. He did not have a passenger in the truck. He went on to explain 'this truck flipped over cos the back joules got caught and [he] couldn't correct it, hit a farmer's crossover, it shot up in the air, came down on its side and … [he] got pinned in the cab because it hit the tree on its side and the tree crashed all the cab on top of [him] and [he] was entombed for two hours, sitting in fuel and the dash lights were all going crazy … wiring. And then [he] had to be cut out of that and taken to hospital'.
34 When the tow truck arrived he was seated in his wife's vehicle. She got out and spoke to the tow truck driver.
35 The plaintiff did not recall speaking to a nurse at the hospital. He did not recall seeing Ms Wright with his wife at the defendant's bed.
36 The plaintiff and his wife arrived home from the hospital after midnight. During the night he took Mersyndol pain relief tablets. He awoke in the morning with a massive headache and pain from the waist upwards. The pain was worse on the right side. He went to work. At lunchtime he took two Mersyndol. The pain he experienced from the waist upwards had gone by Sunday morning. His headache had not gone by Monday morning and he still felt nauseous. He went to Dr Withers on 9 September 2013.
37 The plaintiff understood a WAP RTC form needed to be completed if someone was injured in the accident or damage to the vehicle was (not less than) $3,000. After he downloaded the WAP RTC form from the police website on his computer in his home office, he sat with the defendant and filled it in at the defendant's dictation. He did that to help the defendant because he was his father and the defendant had poor handwriting. He wrote down whatever the defendant told him regardless of whether or not he agreed with the defendant's version of events. He and the defendant discussed the sketch of the accident scene before he drew it. Prior to completing the WAP RTC form on 2 September 2013 he had seen the bruising on the defendant's right shoulder, (right) neck, (right) breast and stomach. He had not seen bruising on the defendant's left shoulder. The photographs depicting the defendant's bruising had assisted his memory. He wrote down the defendant's injuries as dictated by the defendant as he believed they needed to be included for the driver. He then wrote down 'concussion' for himself, but then stopped writing his injuries because it was the defendant's document. At 3.52 pm on 2 September 2013 the completed WAP RTC form was signed by the defendant in the presence of a police officer at the local police station.
38 The plaintiff agreed the ICWA CR form dated 3 December 2013 and signed by the defendant was in his handwriting/printing. He downloaded the form from the ICWA website on or about 3 December 2013. He understood the form had to be lodged by the driver. He sat with the defendant and he completed the form by copying what was on the WAP RTC form dated 2 September 2013 or writing down what the defendant read out from it. He agreed the two documents were not in the same words. He wrote down the defendant's words. He understood the purpose of the document was to send it to the Insurance Commission because he wanted to make a claim for his injuries. He had not made a claim at that stage. He commenced his claim in the new year (2014) when 'he ended up finishing work and thought [he] had to do something about it'. He wrote down his injuries on the ICWA CR form: concussion, left shoulder, right shoulder, neck, left side of body (which was a reference to his head). He did not mention pain to the right body, torso or flank. His major complaint was his right shoulder.
39 In re-examination the plaintiff recalled that the female paramedic spoke to him from outside the ambulance. He vaguely recalled speaking to the paramedic inside the ambulance.
Gemma Lee Wright
40 Ms Wright gave evidence-in-chief that at about 7.30 pm on 30 August 2013 she received a telephone call from the defendant saying he had been in an accident on Hope Valley Road and asking her to go there. Before driving to the accident scene she telephoned the defendant's mother.
41 About 10 minutes later Ms Wright arrived at the accident scene. It was raining. The defendant was looking in the car for his 'smokes or wallet' and the plaintiff was standing on the front fender of the passenger side 'all dazed and sort of leaning over'. She walked down (the embankment) to the car and then the trio walked back up to the road because of the arrival of Mrs Benedetti. Mrs Benedetti had arrived at the accident scene 5 - 10 minutes after her. The defendant was saying 'he was sore and in a lot of pain', apologising to his mother about the car and how he wrote it off. It started to rain and she climbed into her vehicle. Mrs Benedetti told her to take the defendant to hospital.
42 Ms Wright drove the defendant to the hospital. The journey took about 20 - 25 minutes. She pulled into the Emergency Department parking (the ambulance lane) and went inside to get a wheelchair whilst the defendant remained in her car. A nurse helped her place the defendant in the wheelchair and then they went inside the Emergency Department Triage Section. She 'went up to the counter and gave all [the defendant's] details and everything … name, date of birth and address' to a female person behind a glass barrier. When asked 'what was the incident that brought the defendant to the hospital', she mentioned that it was a car accident but she could not recall if she was asked for any more information. She spoke to the female person for about five minutes. At that time the defendant was sitting in the wheelchair over near the public seating. She then sat with the defendant.
43 About 10 minutes later a nurse took them through to a cubicle in the Emergency Department Ward. The defendant lay on the bed and a neck brace was put on him. She went through to the front section of the Emergency Department Triage Section where she saw the plaintiff and Mrs Benedetti walking in through 'the big glass doors'. She brought the plaintiff and Mrs Benedetti through to the defendant's cubicle in the Emergency Department Ward. The plaintiff and Mrs Benedetti sat down. About five minutes later she left the hospital for her home to attend to the children.
44 At about 8.00 pm on 31 August 2013 the defendant was brought by his sister to Ms Wright's home for a visit. The defendant lifted up his shirt to show her his bruising. He had a bruise starting at the top right shoulder and extending across the body down to the left lower hip, a 'really big' bruise above the right chest area, a big bruise towards the lower left hip and a bruise across the stomach to the right hip.
45 During cross-examination Ms Wright said that at the accident scene she observed that when the plaintiff was leaning over the car he looked to be in pain and a bit dazed, 'confused'.
46 At the Emergency Department Triage Section Ms Wright approached a female administrative/clerical worker who was behind the glass screen and she gave her the defendant's details. The defendant was not attended to by a nurse at the front section of the Emergency Department Triage Section.
47 When the defendant's name was called out he was taken by a nurse straight through to the Emergency Department Ward. Ms Wright did not see the defendant lay down in the bed or who put the neck brace on him. A person in white with 'a pattern collar' approached her and asked her to go through to the Emergency Department Ward. When she was accompanied there by the nurse she saw the defendant laying in the bed and wearing a neck brace. The defendant was moaning and groaning. When she went to the Emergency Department Ward with the plaintiff and Mrs Benedetti someone pushed the button to let them through the doors. On that occasion the defendant was also moaning and groaning, he was awake but then closed his eyes. She did not tell anyone at the hospital that the defendant had 'three beers', he had been drinking alcohol or he was intoxicated.
48 Ms Wright saw 'bright purple' bruising on the entire right side of defendant's chest the following day (31 August 2013). She did not notice any bruising on the left side of his chest or around the left shoulder. He had a red mark on the right side of the bottom of the neck. On his stomach the bruising was dark on the left side, lighter towards the middle and darker towards the right side. It appeared that the bruising followed the line of a seat belt worn by a person on the driver's side. Three or four days later the bruising went 'a yellowy colour around the outside of it'. She did not observe any bruising on the left side of his chest or around the left shoulder on that occasion.
Cheryl Jane Benedetti
49 Mrs Benedetti gave evidence-in-chief that at about 6.45 pm on 30 August 2013 she returned home from her work. It was raining lightly. The defendant was moving the car out of the carport. The plaintiff was ready to pull (down) the roller door. After she drove her car into the garage, the plaintiff pulled down the roller door. As she proceeded to go into the house, the plaintiff got in the passenger side of the car.
50 At about 7.30 pm Ms Wright telephoned Mrs Benedetti and told her about the accident. Approximately 15 - 20 minutes later she arrived at the accident scene in her vehicle.
51 Mrs Benedetti saw the defendant and Ms Wright standing in front of Ms Wright's vehicle on the roadside. The defendant was in pain so she told Ms Wright to take him to hospital.
52 Mrs Benedetti saw the plaintiff down (the embankment) at the car. She called out 'come up, it's starting to rain' but the plaintiff did not respond. The plaintiff turned and walked to the back of the car, mumbling. She went down and brought the plaintiff up (the embankment) to her vehicle. The plaintiff sat in the driver's seat of her vehicle whilst she searched the glovebox for a torch to search for valuables in the car and a pad and pen to telephone the RAC. At that time an ambulance arrived.
53 The plaintiff went over to the ambulance whilst Mrs Benedetti waited at her vehicle. A female ambulance officer came over to her and asked her to take the plaintiff to hospital. The female ambulance officer said the plaintiff looked a bit shocked and explained what symptoms she should look out for. After the ambulance left a tow truck arrived.
54 Mrs Benedetti gave the tow truck driver the car's RAC details to tow it away. The tow truck driver advised her to take photographs of the car which she did with her mobile telephone 'at [approximately] 9.00 pm or later'.
55 Mrs Benedetti drove the plaintiff to hospital. The journey took about 15 minutes. She parked her vehicle and walked the plaintiff into the Emergency Department Triage Section. She told the plaintiff to sit on a chair in the public seating area. The plaintiff appeared unresponsive because he was not answering her.
56 Mrs Benedetti went to look for the defendant in the Emergency Department Ward. She found the defendant on a bed in a neck brace. The defendant was moaning in pain, asked after his father and apologised for the accident. She remained at the defendant's bed. About 10 minutes later the plaintiff appeared at the defendant's bedside and he sat down. The plaintiff said he had been given some tablets, he felt unwell and wanted to go home. The plaintiff looked 'white and seedy'. At some stage Ms Wright was at the defendant's bedside but then left to attend to the children. When a nurse came and advised that a CT scan and some tests had been done on the defendant, she decided to stay for the results because she was concerned about his neck. She described the female nurse as short and stout. At some stage that nurse returned when the defendant was moaning and apologising for going so fast. The plaintiff was sitting there unresponsive and 'dozing off and on'. She took a photograph of the defendant in the neck brace and a photograph of him lying in bed without the neck brace. After 12.00 am, after being advised the CT scan was alright, she and the defendant left the hospital for home.
57 On the following day the plaintiff went to work and she attended a funeral.
58 On the morning of 1 September 2013 Mrs Benedetti took photographs of the defendant's visible bruising 'just in case [he] needed to go back to the doctor' and she was shocked by the bruising. In the afternoon the family celebrated Father's Day.
59 During cross-examination Mrs Benedetti said that while the plaintiff was in the ambulance, she went down to the car to retrieve a map book and then went back up to her vehicle and sat in the driver's seat. She only saw the female paramedic when the female paramedic came to the window of her vehicle.
60 On 31 August 2013 the plaintiff complained of a headache and feeling unwell. Mrs Benedetti tried to persuade him not to go to work.
61 Mrs Benedetti took the photographs of the defendant's bruising with her digital camera to show his bruising. The photographs showed the main bruising over his right shoulder closer to the base of the neckline and over his right breast region. There was bruising down towards his stomach, (and) across. She did not see any bruising on the left side of his neck and shoulder or on his left chest.
Dr Martyn Edwin Flahive
62 Dr Flahive, a medical practitioner and an occupational physician, explained in evidence-in-chief that when he examined the photographs of the defendant's bruising, he observed 'evidence of an old contusion [bruise] and what appears to be seat belt bruising over the right shoulder'. There were two linear marks at the right neck; 'they just looked like some sort of linear bruising which could be consistent with the seat belt sitting over there and causing that contusion'. He then corrected himself, saying the two linear marks were 'suggestive' of a seat belt. He also observed from the photographs 'some dependant [changed by gravity] bruising that appears to be settling and collecting around the right breast'. He explained how gravity caused that bruising to move down and that the bruising was consistent with the application of force somewhere above the semi-circular line below the right nipple. He also observed from the photographs that 'there has been some seat belt bruising having occurred across the right shoulder, right breast and left side of the abdomen'. In his opinion 'this would suggest that [the defendant] was seated on the right side of the vehicle, either in the passenger or driver's seat'. (This was his initial opinion.)
63 When Dr Flahive examined a photograph of the plaintiff taken on 1 September 2013 he observed what 'appears to be a laceration on his left eyebrow'.
64 Dr Flahive explained that 'for the passengers, in addition to seat belt injuries, it may be expected [that they] have some right-sided injuries from the impact which may be of relevance'.
65 During cross-examination Dr Flahive explained the phenomena of 'the seat belt mark' or 'the seat belt sign' as 'a marking that's caused by the seat belt where it sits across the body on impact ... the significance to medical practitioners is when it's seen, it raises some concerns in relation to some internal damage'. It manifested itself as bruising on the body. It was more commonly associated with a front-on collision as opposed to a side-on collision and rarely seen in rear-end collisions. Generally, the typical seat belt mark or seat belt sign would not be seen in a side-on collision. Bruising over the clavicle or sternum, at the base of the neck or [over] the abdomen, caused by the seat belt, following a motor vehicle accident was frequently seen. If he saw bruising as a result of the seat belt following a motor vehicle accident on the driver, he would more likely expect the bruising to be on the right clavicle than the left clavicle. He would expect to see a variety of patterns for the passenger because the passenger was less restrained than the driver. If he saw bruising over the left clavicle/collar bone, he would more likely associate that with the person being the passenger rather than the driver. With the passenger 'the seat belt mark may not be just a typical straight line. It may actually vary somewhat but [the passenger will] get the left side of the upper chest, neck, shoulder injury' (from the seat belt).
66 When he was shown the position of the defendant's bruising as drawn on the sketch under the heading 'Clinical Assessment' on the Rockingham-Kwinana Hospital Emergency Department Clinical Record for the defendant (the defendant's Emergency Department Clinical Record), Dr Flahive agreed that the bruising he observed in the photographs of the defendant's bruising, apart from the right breast, accorded with the position of the defendant's bruising as drawn in the sketch on the document, except for the drawing of the bruising on the left side of the chest. After reviewing the larger of the photographs of the defendant's bruising, he observed an area of darkening on the left side of the upper chest that looked like a faint bruise.
67 Dr Flahive agreed the abdominal bruising seen in the photographs of the defendant's bruising was consistent with a seat belt, but it did not allow him to form any conclusion as to whether the person was more likely sitting in the passenger's seat or the driver's seat. He did not associate the bruising around the right breast with seat belt type injuries. The left sided bruising (he observed when reviewing the photographs of the defendant's bruising) was consistent with a seat belt bruise (for a person seated on the left side of the vehicle) and the right neck bruising was consistent with a seat belt bruise (for a person seated on the right side of the vehicle). (This was his subsequent opinion.)
68 Dr Flahive agreed that the plaintiff's injuries to both his right and left shoulders, which Dr Withers described in his report as soft tissue injuries, were equally consistent with the plaintiff being either the passenger or the driver of the vehicle because the mechanics of the shoulder injuries were not associated with the seat belt.
69 In re-examination Dr Flahive said the bruise on the left of the chest near the sternum that he observed on reviewing the photographs of the defendant's bruising and which accorded with the sketch of his bruising as drawn on (the defendant's Emergency Department Clinical Record), made him less certain of his initial opinion that was suggestive 'that the seat belt was running from the top right to the bottom left' on the defendant. He went on to explain that 'if [he] was to take the view that this person was the passenger and that bruise was as a result of a seat belt impact on the left side of the sternum, then one would have to provide some explanation for that right-sided neck bruise'. Equally, if he was to take the view that the right neck bruise was as a result of the seat belt, he would have to provide some explanation for the bruise on the left of the chest near the sternum. For example, if this person was the driver and he came into contact with a passenger or something else.
Robert John Lyne Davey
70 Mr Davey, a motor vehicle crash consultant with experience with seat belts, explained in evidence-in-chief that the primary reason for the three-point design of a lap-sash seat belt was that it dissipated the energy during the crash and prevented the body from moving forward into the steering wheel and windscreen. The force of the impact was transferred, in part, to those areas of the body that were in direct contact with the seat belt.
71 Mr Davey also explained that where occupant location was questioned due to seat belt injuries, it was important to understand occupant kinematics; the forces involved in a motor vehicle crash on the human body: 'An occupant of a moving vehicle is travelling at the same speed and direction as the vehicle. If the vehicle is involved in a crash with a stationary object, the occupant will tend to remain travelling in the original direction and collide with interior components such as the steering wheel, if not properly restrained. This is not necessarily the case during the impact with another moving object, as the occupants will move towards the principal direction of force'.
72 Mr Davey also explained the forces involved in a motor vehicle crash with a tree. In a 90 degrees impact, if a car is sliding sideways and strikes a tree, perpendicular to the direction of travel, so the car has rotated completely 90 degrees in the direction of travel and slams into a tree, all the force will be in that direction. The force of the tree was through/against the car and the occupants would go against the tree or towards the right-hand side of the car. In an impact where the car may have only rotated 45 degrees, so the car was still more to the left when it slammed into the tree, there may be some forward/back force as well as sideways force through the car. The occupants would get a combination of both those forces so that, depending on the magnitude of each force, the occupants could be thrown towards the A pillar of the car. He went on to explain rotational force. If the tree impacted towards the back of the car, the car would then tend to rotate: the force(s) 'will still tend to go through the car, in a similar direction. The only time that the car will not rotate is if the force goes right through the vehicle's centre of mass. So those are the times when the car comes to rest and stops and, generally, you get massive damage if you hit a tree. And, of course, if you are unlucky enough, the tree can come into the driver's compartment. So the driver, instead of being thrown over the car, will actually hit the tree, in those circumstances'.
73 With respect to the motor vehicle crash in this case, Mr Davey expressed the following opinions. Firstly, 'depending on the angle of [the car] as it struck the tree, it is possible that there was both longitudinal, front to rear, and lateral, right to left deceleration. Assuming this is the case, the occupants would experience a force both towards the right and front of [the car]. The seat belts would exert a force onto the bodies of the driver and passenger during this time due to the longitudinal component of the force. The location of the damage behind [the car's] centre of mass would cause clockwise rotation and negate the lateral force to some extent'. Secondly, acknowledging he had no medical qualifications, 'but if it is assumed that the seat belt can cause bruising where it contacts the body, [he] cannot see an issue with [the plaintiff] being sat in the passenger seat and [the defendant] being the driver, based on the available evidence and crash dynamics'. He explained, in this instance, he assumed the force of the seat belt, wherever it made contact, caused the bruising that appeared on the right side of the neck and right side of the chest in the photographs of the defendant's bruising. His opinions were based on the dynamics; the physics of the car crash. He would never look at a hospital report in his capacity as a forensic crash consultant.
74 During cross-examination Mr Davey explained he had spent a lot of time thinking carefully about the way he expressed his second opinion with respect to the motor vehicle crash in this case which emphasised his acknowledgement he had no medical qualifications. He would defer completely to Dr Flahive as to the conclusions, if any, that could be drawn from any particular bruising or other injuries. He would describe the damage to the car as moderate and not typical of a vehicle that has collided with a tree at high speed. From the damage to the car, he was of the view that there was some front to rear force going through the car. After the car hit the tree just behind the B pillar, the car's centre of mass/centre of gravity caused it to rotate in a clockwise direction around the tree and end up facing towards the road.
75 Mr Davey explained the statement in his report, as corrected because he only saw photographs of the defendant's bruising, that '… the occupant in this crash appears to have sustained seat belt injuries which would normally suggest a frontal impact' was an observation based on 40 years' experience. On his analysis of the evidence to which he had access, he could see a scenario that was consistent with the defendant being the driver. His 'preferred stance', based on the injury that he observed in the photographs of the defendant's bruising that starts at the neck and progresses down the right side of the chest, was that the defendant was in fact the driver of the car.
76 In re-examination Mr Davey explained that in arriving at his 'preferred conclusion' that the defendant was the driver of the car, he was assisted by his 'database of knowledge over many, many years working both as a police officer and consultant attending scenes of serious crashes'.
Dr Kenneth Peter Withers
77 Dr Withers, a general practitioner, gave evidence-in-chief that he examined the plaintiff on 9 September 2013. The plaintiff told him 'he had been involved in a motor vehicle accident. He had been the front seat passenger in a car driven by his son that had hit a tree on Hope Valley Road on 30 August 2013'. The plaintiff's complaint was that 'since the accident he had right shoulder pain and felt that his arm had felt very heavy and he had difficulty lifting his arm'. He observed 'painful and restricted abduction of [the plaintiff's] right shoulder with tenderness over his sterno-clavicular joint'. When he examined the plaintiff on 23 September 2013 'his shoulder was unchanged'. The plaintiff had told him 'his right shoulder was very painful and he had been unable to sleep due to the pain'. He 'did not find any inconsistencies between [his] objective examination and [the plaintiff's] description and his complaints and [the] symptoms [were] directly caused by the motor vehicle accident'.
78 During cross-examination Dr Withers agreed the plaintiff's primary complaint was right shoulder pain. It was a soft tissue injury. He did not believe the right shoulder injury was caused by a seat belt. The right shoulder injury was caused by the weight of the arm going forward at the point of impact or bracing the arm forward at impact. In his opinion the right shoulder injury was consistent with the plaintiff being the driver or a passenger in a motor vehicle accident.
79 During cross-examination Dr Withers also agreed that he examined the defendant on 3 September 2013. The defendant complained of left shoulder pain, chest pain and neck pain. On the patient record he noted 'extensive bruising and swelling on the left side of the neck and trapezius [one of a pair of large triangular muscles on the back aspect of the neck, shoulders and upper chest] from seat belt'. He did not recall if the reference to the seat belt was because he was told that by the defendant or if it was his conclusion. He did not observe bruising on the right trapezius.
80 After trial, leave was given to the plaintiff to re-open his case to recall Dr Withers concerning his consultation with the defendant on 3 September 2013. Dr Withers had provided a report dated 17 April 2017 to the plaintiff after trial which appeared to indicate that Dr Withers resiled from some aspects of his evidence during trial.
81 When Dr Withers was recalled he gave evidence that in accordance with his usual practice he would have asked the defendant during the consultation on 3 September 2013 where he was seated in the car because of the potential clinical significance for his treatment. However his notes of that consultation did not record that the defendant told him where he was seated in the car. He assumed from his observation of bruising and swelling on the defendant's left side of the neck and trapezius that it was caused by a seat belt. Upon reconsideration (since trial), although he observed 'the bruising on the left trapezius [he] cannot definitively confirm that this was caused by trauma from a seat belt' or collision with some object or person given the sideways and rotational forces involved in the crash.
Alexander Matthew Lawford
82 Mr Lawford, a paramedic employed by St John Ambulance Western Australia, gave evidence-in-chief that he had no recollection of attending the accident scene.
83 By reference to his employee number on the Patient Care Record of St John Ambulance Western Australia for the plaintiff (the Ambulance Patient Care Record), Mr Lawford identified himself as the ambulance officer who attended the accident scene on 30 August 2013 as the 'Attendant'. It was the role of the attendant to prepare 'the notes' on the first page of the Ambulance Patient Care Record and complete the paperwork on the remaining two pages. He explained that after he finished assessing the patient, if he left the patient behind at the scene, as soon as he removed himself from the scene he would immediately start filling out the paperwork on an iPad. All the information on the Ambulance Patient Care Record was what he had gathered from the accident scene. He was in the habit of writing down important details on his glove at the accident scene.
84 By reference to the Ambulance Patient Care Record, Mr Lawford said that the ambulance arrived at the accident scene at 8.23 pm and departed at 9.10.01 pm. The times were generated by pushing a button on the centre console of the ambulance. He would push the departure button when he had finished the paperwork. At 8.34 pm and 8.55 pm he made two sets of observations with respect to the patient's GCS (Glasgow Coma Scale), pulse rate, blood pressure etc. After the second set of observations the ambulance left the scene and he found 'a quiet place to do paperwork'.
85 Mr Lawford explained why it was of 'great importance' to know the position of a patient in a vehicle in a motor vehicle accident: 'it paints the picture of mechanism of injury and potential injury for the people involved in that motor vehicle accident'. Under the heading 'Motor Vehicle Information' and against the heading 'Patient Position' on the Ambulance Patient Care Record, he recorded 'Driver'. Under the heading 'Patient's Details' and against various headings, he recorded the plaintiff's names, date of birth and gender. In the ordinary course, he would obtain that information from the patient. He went on to explain the drop-down box system used in an ambulance patient care record for the examination of a patient.
86 Under the heading 'Other Information' on the Ambulance Patient Care Record, Mr Lawford explained what he had recorded as follows.
At approx. 1930 pt [patient] while driving at approx. 70 kph, pt swerved to avoid obstical on road and slid off road in small sedan and hit large tree.
Pt (driver) self extricated. Front passenger self extricated.
Passenger was taken to hospital by a third party prior to SJA arrival.
O/A
Driver sitting in wife's car when SJA arrived. Vehicle involved in accident is up right off side of road next to large tree.
75 cm intrusion into R side of vehicle, behind drivers door. Drivers door window broken. Minor crack in windscreen near A pillar.
Seat belt worn.
Nil LOC [loss of consciousness] nil obvious head injury, nil nausea, nil vomiting.
A/B [airway and breathing] nil sob [shortness of breath], spo2 97 ra [pulse oximeter digital readout 97% oxygen circulating through blood], good bilateral chest expansion. Nil pain on deep inhalation.
C [circulation] hr [heart rate] 80. Strong regular radial pulse. BP [blood pressure] 160/95.
D [disabilities] GCS 15 [Glasgow Coma Scale highest rating, no altered conscious state]. Pt aware of person place and time. Perl [pupils equal and responsive to light].
E [exposure] nil c spine tenderness on palpation. Minor muscular discomfort on right side of neck with flexion, and right shoulder. Pt states right shoulder is site of past severe injury. Nil NV [neurovascular] deficits in any extremities. Pt c/o [complaining of] bruising pain to right flank. Nil visible bruising at site of pain. Pt ambulating around scene without difficulty.
Sja strongly encouraged patient to seek further assessment at an ED [emergency department]. pt states he will be taken by his wife to Rockingham Hospital.
Discussed at length with friends/relatives/carer that if patient begins to c/o pain, immobility, nausea, confusion or displays signs of confusion, aggression or uncoordination, then present patient to and ED or call 000 for further assistance.'
87 In the ordinary course, Mr Lawford or the ambulance driver would have gathered the information under the heading 'Other Information' from the patient if he was conscious and able to speak, or if the patient was unconscious and unable to answer questions, then the information would be gathered from bystanders.
88 During cross-examination Mr Lawford explained that being aware of 'person, place and time' was the verbal component of the Glasgow Coma Scale. It ruled out a person being disorientated, but it did not necessarily rule out that person being subjectively confused. However, 'If I've asked him "were you the driver of the vehicle" and he said "yes" then I would be confident that that was right'. He explained the first blood pressure that he took for the plaintiff was '160 on 90'. It was a little bit elevated in a time of stress for which he made allowance. It was not uncommon for people in their sixties to suffer from high blood pressure and to have a blood pressure of '160 on 90' every day.
Deborah Louise Osborne
89 Ms Osborne, a trainee paramedic employed by St John Ambulance Western Australia, explained in her evidence-in-chief that she attended the accident scene as the driver of the ambulance.
90 Ms Osborne 'did not have full recollection of the whole event and all the conversations that happened at the time. [She] recall[ed] the scene and [she] recall[ed] arriving on the scene'. It was dark and raining on and off. It was a long narrow road. There were occupants in a vehicle parked on the side of the road. There was another vehicle in a ditch with undergrowth around it. The ambulance pulled in ahead of the vehicle on the road. After she and her partner, Mr Lawford looked at the crash vehicle, Mr Lawford had a conversation with the plaintiff outside the ambulance. At some stage it rained and she put on Mr Lawford's raincoat. Whilst Mr Lawford conducted the physical assessment of the plaintiff, he had a conversation with him. She vaguely recalled 'that [she] was putting [her] twopence worth in as well with perhaps feeling [the plaintiff's] neck and [right] shoulder' but, as she was the driver and Mr Lawford was the attendant, Mr Lawford was doing the observations. She went on to say: 'I think he took him into the back of the ambulance and did his blood pressure …'.
91 Ms Osborne observed that the plaintiff 'appeared quite calm. He was coherent. He wasfollowing conversation. [Ms Osborne did not] recall anything standing out as being different or anything.' She did not 'see any head injury and he wasn't behaving in a manner that would suggest any head injury … If there had been any indication of there being a head injury specifically by any mannerisms or confusion, the whole encounter with [the plaintiff] would have taken a completely different course'. If the patient appeared in any way to be concussed or confused or show signs of head injuries, then the paramedics could not reliably accept the patient's word that he or she suffered or did not suffer spinal injuries. In that situation the paramedics go down 'the spinal route'. Depending on the severity of injury, if a patient was confused the Glasgow Coma Scale was used. If there has been sufficient force that has caused [a patient] to be confused, so that there could be potentially a head injury, it has to be assumed that there was sufficient force to have caused a spinal injury. The patient would be placed in the supine position, a neck collar put on and the patient given Ondansetron to stop vomiting. In this instance, they did not go down the spinal route with the plaintiff: 'when you arrive at a scene and somebody has a distracting injury and they are confused and signs of a head injury, possible loss of consciousness or something like that … then we go down a completely different route. We most certainly would not be leaving the scene and leaving them with somebody that's not fully trained'.
Merina Gladys Kirsch
92 Ms Kirsch, a registered nurse employed by Rockingham-Kwinana Hospital, gave evidence-in-chief that she had no recollection of attending to the defendant in the hospital's Emergency Department Triage Section on 30 August 2013.
93 Ms Kirsch explained how she dealt with a patient at the triage glass window by asking the patient questions to complete her triage assessment:
I basically multitask. So I type as the patient talks to me. While the patient talks to me I assess airway breathing, and if possible his circulation. So getting the information from the patient, if he talks to me in full sentences, I can assess that there's no airway compromise. I can also assess whether he's got breathing problems. So basically multitasking and while I ask the patient, I type the information in the system.
94 If a patient presented at the triage glass window with another person, Ms Kirsch's usual practice was for that other person to sit next to the patient or stand behind the patient. She would then insist upon talking to the patient himself to obtain information from the patient. She did not mind if that other person provided information, but if it became confusing she did not listen or asked to speak with the patient alone:
It becomes really confusing if there's more than one person talking. My practice is I talk to the patient. Normally if there's a second person with a patient, I will listen to what they say. But as I said before, part of my assessment for the patient is his breathing and his airway … I will actually tell them that I can only listen to the patient … and I will not listen to (the second) person.
95 By reference to the defendant's Emergency Department Clinical Record, Ms Kirsch identified herself as the triage nurse who attended to the defendant when he presented at the glass window at 8.47 pm. After asking about his problem and other questions, she used a system called EDIS (Emergency Department Information System) to record by a drop box system and free typing 'INJURY - RIGHT NECK AND SHOULDER- MVA, CAR VERSUS TREE AT ABOUT 80KM/H. FRONT SEAT PASSENGER. SELF EXTRACATED. NO LOC [loss of consciousness]. INTOXICATED'.
96 Ms Kirsch would normally ask a patient his position in a vehicle as the driver, a front seat passenger or somewhere else as it could indicate to her the severity of the injury.
97 Ms Kirsch explained that she was required to tick or fill in the drop box question 'Was the incident drug or alcohol related?' because a patient under the influence could be safely assessed and this was the means of communicating that to the rest of the medical team. She may have asked the question 'Was there any recreational drugs or alcohol involved?' and if a patient or a person with the patient admitted he [the patient] was intoxicated or used other words such as drunk, she would type 'intoxicated'. If the patient said he had a few drinks, she would type 'patient admits to ETOH [ethanol]'.
98 By reference to the Rockingham-Kwinana Hospital Emergency Department Adult Triage Assessment for the defendant (the defendant's Emergency Department Triage Assessment Record), Ms Kirsch explained how under the heading 'Mechanism of injury for road trauma', she filled in on the diagram of the vehicle by placing an 'X' for the patient position (front seat passenger) and putting an arrow to show the point of impact (rear of driver's door). She did that if she got the information from a patient or a person with the patient or he (the patient) volunteered it. She would then confirm with the patient 'you were sitting at that position and that was where the impact happened?'. In this instance, the defendant scored '2 out of 5' for triage assessment which indicated he needed to go into the Emergency Department Ward immediately and be seen within 10 minutes by a medical officer. She explained that on the observation chart at 2100 hours, 2200 hours, 2240 hours, 0100 hours, 0215 hours, 0400 hours and 0600 hours, the defendant's Glasgow Coma Scale score on each occasion was 15. At 2340 hours it was 14.
99 By reference to the defendant's Emergency Department Clinical Record, Ms Kirsch explained the treating doctor's notes under the heading 'Clinical Assessment': 'GCS 15 [Glasgow Coma Scale]; 31 August 2013 00:10 [entry] ethanol 0.01 [was a reference to the blood alcohol level and blood test results]'.
100 During cross-examination Ms Kirsch agreed that the defendant's Emergency Department Triage Assessment Record was done before the clinical assessment recorded on the defendant's Emergency Department Clinical Record. She did not do the other observations (airway, breathing, colour etc) on the defendant's Emergency Department Triage Assessment Record because the patient was a priority two and needed to go to the Emergency Department Ward. She had done her primary clinical assessment under the heading 'History and Assessment' on that document. The secondary assessment would be done by the staff inside the Emergency Department Ward. In this case, after the patient went through to the Emergency Department Ward it would have been her usual practice to ask for the relative or whoever came with the patient to stay outside so that the hospital could get the patient on the hospital's administration system.
Leslie Alan Bruse
101 Mr Bruse, a clinical nurse employed by Rockingham-Kwinana Hospital, gave evidence-in-chief that he had no recollection of attending to the plaintiff in the hospital's Emergency Department Triage Section on 30 August 2013.
102 By reference to the Rockingham-Kwinana Hospital Emergency Department Adult Triage Assessment for the plaintiff (the plaintiff's Emergency Department Triage Assessment Record), Mr Bruse identified himself as the triage nurse who attended to the plaintiff when he presented in the triage section at 9.31 pm. He conducted the plaintiff's triage assessment. The plaintiff's triage score was '4 out of 5' which meant he was to be seen by medical staff within an hour. The letters 'W/R' indicated the plaintiff was assigned to the waiting room public seating area after the triage assessment. Under the heading 'Presenting complaint/problem', he recorded 'INJURY – RIGHT UPPER LIMB – SHOULDER – BLUNT'. Under the heading 'Airway', he ticked the box 'Patent', under the headings 'Breathing', 'Colour', 'Circulation' and 'Pulse', he ticked the boxes 'Unremarkable', and under the heading 'Con. [conscious] State', he ticked the box 'Alert'. Under the heading 'Mechanism of injury for road trauma', he recorded 'MVA'; against 'Speed of vehicles', he recorded '? 40 – 60'; he put an arrow and the word 'tree' on the vehicle diagram to show the direction of impact, but he did not indicate with an 'X' the position of the plaintiff in the vehicle. Under the heading 'History and assessment', he recorded 'INJURY – RIGHT UPPER LIMB – SHOULDER – BLUNT – INJURY, AND RIGHT SIDE POST MVA REPORTS HIT TREE WITH DRIVERS SIDE OF CAR PT [patient] REPORTS WAS DRIVER NIL LOC [loss of consciousness] NIL NECK PAIN, SEEN AT SCENE BY SJA [St John Ambulance]'. He explained why it was important to know where a patient was sitting in the vehicle to understand the potential types of injury and treatment needs. In this instance, the notes indicated the plaintiff volunteered that he was the driver and he did not lose consciousness. The handwritten letters and numerals 'DNW 0015' in a circle on the document indicated that the plaintiff did not wait to be seen by medical staff. He explained that a patient would be called three times, 5 to 10 minutes before each call, before making the 'DNW' notation. The medication chart indicated that at 9:35 pm he gave the plaintiff Panadeine and Nurofen.
103 During cross-examination Mr Bruse agreed that under the heading 'Mechanism of injury for road trauma', he ticked the box 'seatbelt' under 'Pt [patient] restraints'. He ticked the box 'Alert' under the heading 'Con. State' because the plaintiff told him he was the driver of the vehicle, where he was seated, how fast he thought he was going, he had been seen by St John Ambulance, he attended the hospital and he provided all the other information on the document.
Analysis of the evidence
Deficiencies in evidence upon which expert opinion based
104 The photographs of the defendant's bruising, upon which Dr Flahive and Mr Davey were asked to express opinions, were of poor quality. The photographs tendered as exhibits appeared to be photocopies.
105 The initial opinion expressed by Dr Flahive in his evidence-in-chief, upon which the plaintiff relied, was made on the basis of the photographs he had seen of the defendant. He expressed concern that his initial opinion was made 'without any medical record so it's only really one-third of the jigsaw puzzle … and so to really speak with some certainty you'd want to actually put more evidence together in terms of what's going on'. At no stage during his evidence was Dr Flahive provided with Dr Wither's patient notes of his examination of the defendant after the accident.
Expert medical evidence
106 The expert medical evidence concerning the defendant's 'seat belt bruising' was equivocal. The right-sided bruising, if caused by a seat belt, was capable of providing support for evidence that the defendant was the driver. Equally, the left-sided bruising, if caused by a seat belt, was capable of providing support for evidence that the defendant was not the driver but the front seat passenger.
107 Dr Flahive's initial and subsequent opinions were that the two linear marks at the base of the right neck depicted in the photographs of the defendant appeared to show bruising over the right shoulder that was suggestive of a seat belt for a person seated on the right side of the vehicle.
108 Dr Flahive's subsequent opinion was also that the left-sided bruising in the vicinity of the sternum he observed on the photographs of the defendant was consistent with a seat belt bruise for a person seated on the left side of the vehicle. In that case, he agreed during cross-examination, that if the defendant was sitting in the passenger seat, he would be thrown to the right on impact and he could strike the driver's hand, arm, shoulder or chair. It was possible that the linear bruising on the right side of the (defendant's) neck occurred in that way.
109 Dr Flahive was also of the opinion that abdominal bruising seen in the photographs of the defendant was consistent with a seat belt but it did not allow him to form any conclusion as to whether the person was more likely sitting in the passenger's seat or the driver's seat. He did not associate the bruising around the defendant's right breast with seat belt type injuries.
110 Dr Withers initially assumed that the defendant's 'extensive bruising and swelling on the left side of the neck and trapezius' was from a seat belt for a person seated on the left side of the vehicle. However, upon reconsideration he was unable to say whether the left-sided injuries were caused by a seat belt or collision with some object or person because of the forces involved in the crash.
111 A puzzling aspect of Dr Withers' evidence was that on 3 September 2013 he did not observe any right-sided injury on the defendant. This evidence was difficult to reconcile with the medical evidence of defendant's right-sided bruising and swelling as drawn on the sketch of the defendant's Emergency Department Clinical Record; the defendant's evidence that following discharge from hospital on 31 August 2013 he had a two inch wide bruise extending from the collarbone of his right shoulder across his chest to his left hip across to his right hip; the photographs taken on 1 September 2013 of the defendant's right-sided bruising; and the evidence of Ms Wright and Mrs Benedetti of their observations of the extent of the defendant's right-sided bruising prior to 3 September 2013.
112 Further, the expert medical evidence concerning the plaintiff's injuries was equivocal. The plaintiff's injuries to his right shoulder and his left shoulder were equally consistent with the plaintiff being the passenger or the driver of the vehicle.
113 Dr Flahive was of the opinion that the plaintiff's injuries to both his right and left shoulders were equally consistent with the plaintiff being the passenger or the driver of the vehicle because the mechanics of the shoulder injuries were not associated with the seatbelt.
114 Dr Withers was also of the opinion that the plaintiff's right shoulder injury was consistent with the plaintiff being the driver or a passenger in a motor vehicle accident.
115 Accordingly, I find that the expert medical evidence concerning the plaintiff's injuries and the defendant's 'seat belt bruising' was equivocal. The plaintiff's injuries to his right and left shoulders were equally consistent with the plaintiff being the passenger or the driver of the car. The defendant's right-sided bruising, if caused by a seat belt was capable of providing support for evidence that the defendant was the driver. The defendant's left-sided bruising, if caused by a seat belt, was equally capable of providing support for evidence that the defendant was not the driver but the front seat passenger of the car.
Motor vehicle crash expert evidence
116 The effect of Mr Davey's evidence was that the occupants of the car would have been subjected the sideways and rotational forces involved in the collision with the tree.
117 Whilst I accept that Mr Davey's 'preferred conclusion' that the defendant was the driver of the car, was assisted by his 'database of knowledge over many, many years working both as a police officer and consultant attending scenes of serious crashes', he acknowledged he had no medical experience. He also made it abundantly clear that he would defer completely to Dr Flahive as to the conclusions, if any, that could be drawn from any particular bruising or other injuries.
118 Accordingly, I find that Mr Davey's cautious opinion, which assumed the force of the seat belt, wherever it made contact, caused the bruising that appeared on the right side of the neck and right side of the chest in the photographs of the defendant, had to be viewed in the context of Dr Flahive's conclusions concerning the plaintiff's injuries and the defendant's 'seat belt bruising' and my finding at [115].
Contemporaneous ambulance and hospital records
119 The plaintiff and the defendant made statements to medical personnel immediately or shortly after the accident which were directly inconsistent with the plaintiff's case that the defendant was the driver. It was not in dispute between the parties that the statements were admissible under s 79C of the Evidence Act. In any event, in the circumstances of this case these statements were admissible under s 21 and s 22 of the Evidence Act.
120 Following the accident, the defendant was taken by Ms Wright to hospital. At the hospital, the defendant was seen by triage nurse Ms Kirsch at 8.47 pm, registered nurse Ms White at 9.00 pm and Dr Dawson at 9.03 pm according to the defendant's Emergency Department Triage Assessment Record and the defendant's Emergency Department Clinical Record.
121 I am satisfied that the defendant told triage nurse Ms Kirsch that he was the 'front seat passenger' for the reasons as follows.
122 Firstly, Ms Kirsch's evidence of her usual practice of asking the patient questions to complete her triage assessment. Secondly, Ms Kirsch's evidence of her usual practice, if the patient presented at the triage glass window with another person, of insisting that the patient answer the questions to complete her triage assessment. Thirdly, Ms Wright's evidence that when she went to the triage counter and gave the defendant's personal details and mentioned it involved a car accident, the defendant was sitting in a wheelchair in the vicinity of the public seating. Fourthly, the speed of the car on the defendant's Emergency Department Triage Assessment Record was a detail the defendant could be expected to be aware of but there was no evidence to suggest Ms Wright was aware that the car was travelling at 80 km per hour. Fifthly, the defendant's evidence of his inability to recall what he said to medical staff because he was 'just in and out of consciousness' did not accord with the evidence of his Glasgow Coma Scale scores of 15 on the observation chart at 2100 hours, 2200 hours, 2240 hours, 0100 hours, 0215 hours, 0400 hours and 0600 hours. At 2340 hours it was 14.
123 I am also satisfied that the defendant told registered nurse Ms White that he was the 'front restrained passenger' for the reasons as follows.
124 Firstly, Ms White's initials appear against the entry at 9.00 pm on the defendant's Emergency Department Triage Assessment Record '33 y o (? male) MVA front restrained passenger skidded on bend 80 k/hr … has had 3 beers today'. Secondly, the defendant's evidence of his inability to recall what he said to medical staff because he was 'just in and out of consciousness' did not accord with the evidence of his Glasgow Coma Scale score of 15 on the observation chart at 9.00 pm. Thirdly, the entry at 9.00 pm on the defendant's Emergency Department Triage Assessment Record contained information the defendant could be expected to be aware of. There was no evidence that Ms Wright spoke to a nurse after the defendant entered the Emergency Ward. Ms Wright did not tell anyone at the hospital that the defendant had 'three beers'. The plaintiff presented in the triage section at 9.31 pm. There was no evidence that the plaintiff spoke to a nurse about the defendant's consumption of alcohol. There was no evidence that Mrs Benedetti spoke to a nurse about the defendant's consumption of alcohol or the speed of the car.
125 I am also satisfied that the defendant told Dr Dawson that he was the 'front seat passenger wearing seatbelt' for the reasons as follows.
126 Firstly, the entries on the defendant's Emergency Department Clinical Record indicate that Dr Dawson saw the defendant at 9.03 pm. Secondly, the entry under the heading 'Clinical Assessment' contained information the defendant could be expected to be aware of. There was no evidence that Ms Wright spoke to a doctor after the defendant entered the Emergency Ward. The plaintiff presented in the triage section at 9.31 pm. There was no evidence that Mrs Benedetti spoke to a doctor after the defendant entered the Emergency Ward. There was no evidence that the plaintiff spoke to a doctor after the defendant entered the Emergency Ward. Thirdly, the defendant's evidence of his inability to recall what he said to medical staff because he was 'passing out' or 'just in and out of consciousness' did not accord with the evidence of his Glasgow Coma Scale score of 15 on the observation chart at 9.00 pm. Dr Dawson saw him three minutes later.
127 In the meantime, the plaintiff stayed at the accident scene with his wife where he was attended upon by ambulance officers Mr Lawford and Ms Osborne.
128 I am satisfied the plaintiff told Mr Lawford that he was the driver of the car for the reasons as follows.
129 Firstly, Mr Lawford's evidence of his usual practice of asking the patient questions to complete his assessment of the patient. Secondly, the entries on the Ambulance Patient Care Record contained information the plaintiff could be expected to be aware of. Thirdly, the plaintiff's evidence that whilst his wife was in her vehicle, he was in the back of the ambulance where the ambulance officers checked him over and asked questions. Fourthly, Mrs Benedetti's evidence that when the plaintiff went over to the ambulance she remained in her vehicle. Fifthly, Ms Osborne's evidence that whilst Mr Lawford conducted the physical assessment of the plaintiff, Mr Lawford had a conversation with the plaintiff. I note Ms Osborne did not testify that she overheard the plaintiff tell Mr Lawford that he was the driver. Sixthly, the plaintiff's evidence that he was disorientated and '[he] could not remember what was really going on in the ambulance' did not accord with the evidence of his Glasgow Coma Scale scores of 15 at 8.34 pm and 8.55 pm. Seventhly, the plaintiff's evidence that his thought processes were very scrambled and he only told the ambulance officers about the 1991 accident, when he was the driver of a truck that rolled and slid into a tree, did not accord with the evidence of his Glasgow Coma Scale scores of 15 at 8.34 pm and 8.55 pm. In this regard, I do not accept the submission by counsel for the plaintiff that situational stress and flashbacks or mistake may explain why the plaintiff told Mr Lawford he was the driver in the 2013 accident. The plaintiff's evidence about the 1991 accident appeared to be an attempt by him to explain why he told Mr Lawford he was the driver in the 2013 accident. There was nothing recorded in the Ambulance Patient Care Record that could be attributed to the 1991 accident. Eighthly, Ms Osborne's evidence that the plaintiff appeared quite calm, coherent and following questions. Ninthly, the plaintiff's evidence that the ambulance officers told his wife he 'possibly had concussion' appeared to be an attempt by him to explain his lack of recall of questions asked by Mr Lawford but it did not accord with the entries on the Ambulance Patient Care Record that there was no loss of consciousness, obvious head injury, nausea or vomiting. Tenthly, Ms Osborne's evidence that if the plaintiff was concussed, confused or showed signs of head injuries, the ambulance officers would not have left it to his wife to take him to hospital.
130 Ms Benedetti then drove the plaintiff to hospital where he was seen by triage nurse Mr Bruse at 9.31 pm according to the plaintiff's Emergency Department Triage Assessment Record.
131 I am satisfied the plaintiff told Mr Bruse that he was the driver of the car for the reasons as follows.
132 Firstly, Mr Bruse's evidence of his usual practice of asking the patient questions to complete his triage assessment. Secondly, the plaintiff's Emergency Department Triage Assessment Record contained information the defendant could be expected to be aware of. Thirdly, Mrs Benedetti's evidence that she left the plaintiff sitting on a chair in the public seating area of the Emergency Department Triage Section so she could look in the Emergency Department Ward for the defendant. When Mrs Benedetti found the defendant she remained at his bedside. There was no evidence that Mrs Benedetti spoke to anyone other than the plaintiff in the Emergency Department Triage Section. Fourthly, the plaintiff's evidence that he recalled sitting in the Emergency Department Triage Section and being given pain medication by a nurse accorded with Mr Bruse's evidence that following his triage assessment of the plaintiff at 9.31 pm he gave the plaintiff Panadeine and Nurofen at 9.35 pm. Fifthly, the plaintiff's evidence that he did not recall speaking to a nurse at the hospital did not accord with the evidence of the plaintiff's Emergency Department Triage Assessment Record that he was alert and he reported he hit the tree with the driver's side of the car, he was the driver, there was no loss of consciousness or neck pain, and he was seen by St John Ambulance officers.
133 I also accept the submission by counsel for the third party, as set out below, that there were no inconsistencies in the ambulance and hospital records. There were five separate records of statements on the evening of the accident – three by the defendant that he was the passenger and two by the plaintiff that he was the driver. These records do not record a single occasion in which the plaintiff asserted that he was the passenger or that the defendant was the driver. These records also do not record a single occasion in which the defendant asserted that he was the driver or that the plaintiff was the passenger.
134 The plaintiff has not suggested any positive explanation for these statements in the ambulance and hospital records.
135 Although it may be the case that a particular statement recorded in any one set of medical records might (depending on the particular facts of the case) be able to be explained on the basis that the author of the notes was mistaken or misunderstood what he or she was told, each of the medical records, like every other piece of evidence, must be evaluated as a whole, in light of all other evidence, and not on a piecemeal basis.
136 In this case, to suggest error in the recorded histories in the ambulance or hospital records is to effectively contend that all five of the recorded histories were wrong. The possibility of error in the medical records falls to be considered against the likelihood that five different ambulance or hospital personnel, speaking separately to the plaintiff and the defendant, on the same night after the accident, each made exactly the same error. In my view that possibility is fanciful.
137 I am satisfied the statements in the ambulance and hospital records made by the plaintiff and the defendant to medical personnel immediately or shortly after the accident which were directly inconsistent with the plaintiff's case that the defendant was the driver were accurate and reliable.
138 I find that the two prior inconsistent statements made by the plaintiff to Mr Lawford and Mr Bruse that he was the driver substantially affects the plaintiff's evidence that he was the passenger and the defendant was the driver and detracts from the plaintiff's credibility and reliability.
139 I also find that the three prior inconsistent statements made by the defendant to Ms Kirsch, Ms White and Dr Dawson that he was the passenger substantially affects the defendant's evidence that he was the driver and the plaintiff was the passenger and detracts from the defendant's credibility and reliability.
The defendant's Police Road Traffic Crash Report
140 On 2 September 2013 the defendant completed and signed the WAPR RTC form for the accident as the driver. From that date onwards the defendant has maintained that he was the driver. In that context, the document shows consistency of conduct on the part of the defendant.
141 In my view little weight can be attached to the contents of the WAPR RTC form for the reasons as follows.
142 Firstly, the contents were self-serving. Secondly, there was a conflict between the evidence of the plaintiff and the defendant as to the author of the handwriting/ printing under the heading 'Description and details of crash' on the WAPR RTC. The plaintiff initially claimed to have no knowledge of the author of the handwriting/ printing on the document but later acknowledged it was his handwriting/ printing. The defendant initially claimed it was his handwriting/ printing but then said it was the plaintiff's handwriting/printing on the document. Thirdly, there was a conflict between the evidence of the plaintiff and the defendant as to which of them drew the sketch of the crash scene on the WAPR RTC. The plaintiff claimed he drew the sketch. The defendant claimed he drew the sketch. Fourthly, the description of the accident on the WAPR RTC in terms of 'I swerved left slightly and within seconds [the] car went into a slide and we hit a tree drivers side …' was more consistent with the plaintiff's evidence rather the defendant's evidence of how the accident occurred, although the plaintiff claimed to have written on the document at the defendant's dictation. The plaintiff's evidence-in-chief was that the defendant 'lost it' on a bend; slid around the bend, slid down (an embankment) and hit a tree on the driver's side. The defendant's evidence-in-chief was that he jerked the steering wheel to the right. When the car slid to the left, he tried to correct the car and straighten it, but he went too far. The car swung around 180 degrees before it slid off the road and sideways into a tree. The tree and the car impacted behind the right driver's door before the car bounced around (clockwise) so that it was facing the road.
Credibility issues
143 There were conflicts between the evidence of the plaintiff and the defendant on material issues which impacted on their credibility and made their evidence less reliable.
144 Firstly, there was a conflict between the evidence of the plaintiff and the defendant as to where and over what period of time the defendant consumed alcohol prior to the accident. The plaintiff's evidence was that he saw the defendant drink a couple of stubbies of beer in the carport at home over three to four hours and the defendant drank the remainder of his second bottle before they left in the car. Curiously, the plaintiff's evidence in this regard was consistent with answers provided by the defendant in the Interrogatories Administered by the Third Party for Answer on Oath by the Defendant (the Defendant's Interrogatories), although the plaintiff denied during cross-examination that he had any involvement in preparing or completing the document. The defendant's evidence was that over a period of an hour he consumed two stubbies of beer at work before he went home. In this regard, the defendant's evidence was inconsistent with answers he provided in the Defendant's Interrogatories. Secondly, there was a conflict between the evidence of the plaintiff and the defendant as to the author of the handwriting/printing under the heading 'Description and details of crash' on the WAPR RTC referred to in [142]. Thirdly, there was a conflict between the evidence of the plaintiff and the defendant as to which of them drew the sketch of the crash scene on the WAPR RTC referred to in [142].
145 The evidence of Ms Wright and Mrs Benedetti to the effect that the plaintiff was dazed or confused or unresponsive was inconsistent with the medical evidence and not persuasive.
146 Ms Wright's evidence that the plaintiff was dazed and confused did not accord with the observations of Mr Lawford and Ms Osborne referred to in [129] and the observation of Mr Bruse referred to in [132]. I preferred the evidence of Mr Lawford, Ms Osborne and Mr Bruse to that of Ms Wright on that issue.
147 Mrs Benedetti's evidence that the plaintiff was unresponsive did not accord with the observations of Mr Lawford and Ms Osborne referred to in [129] and the observation of Mr Bruse referred to in [132]. I preferred the evidence of Mr Lawford, Ms Osborne and Mr Bruse to that of Mrs Benedetti on that issue.
148 The evidence of Ms Wright and Mrs Benedetti to the effect that the defendant was apologising for having damaged the car as a result of his driving was inconsistent with the medical evidence and not persuasive.
149 Ms Wright's evidence that the defendant was apologising to his mother at the accident scene for having written off her car did not accord with the entries attributed to him in the defendant's Emergency Department Triage Assessment Record and the defendant's Emergency Department Clinical Record that he said he was the passenger. I preferred the evidence of Ms Kirsch and the hospital records to Ms Wright on that issue for the reasons stated in [122], [124] and [126].
150 Mrs Benedetti's evidence that the defendant was apologising to her in the Emergency Department for having written off her car did not accord with the entries attributed to him in the defendant's Emergency Department Triage Assessment Record and the defendant's Emergency Department Clinical Record that he said he was the passenger. I preferred the evidence of Ms Kirsch and the hospital records to Mrs Benedetti on that issue for the reasons stated in [122], [124] and [126]. I am not persuaded by Mrs Benedetti's evidence that Nurse White must have overheard the defendant's apology and I reject that evidence for the reasons stated in [122], [124] and [126].
151 The evidence of Mrs Benedetti that the defendant was the driver and the plaintiff was the passenger when the car left their home must be considered in light of the finding of her unsatisfactory evidence in [147] and [150]. In the circumstances, I attach little weight to her evidence that the defendant was the driver and the plaintiff was the passenger when the car left their home.
Findings
152 Having regard to the quality of the evidence referred to in [104] - [151] I am not persuaded that the plaintiff has established on the balance of probabilities that the defendant was the driver.
Conclusion
153 The plaintiff's claim against the defendant is dismissed. The defendant's claim against the third party is dismissed.
0
0
1