Bennett v Bennett

[1996] QSC 1

IN THE SUPREME COURT  

OF QUEENSLAND
  No. 1700 of 1990

[Bennett v Bennett & Anor]

BETWEEN:
  MARK JOHN BENNETT
  Plaintiff

AND:
  PHYLLYS WINIFRED BENNETT
  Defendant

AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 02/02/1996

CATCHWORDS:     

CIVIL LAW - Negligence

Motor Vehicles Insurance Act 1936
  - statutory agency - identity of driver.

Counsel:Mr R Myers & Mr J Given for Plaintiff

Ms C Holmes for Defendant

Solicitors:Kenyons for Plaintiff

Quinlan, Miller & Treston for Defendant

Hearing Date:   15 January, 1996

IN THE SUPREME COURT  

OF QUEENSLAND
  No. 1700 of 1990

[M.J. Bennett v. P.W. Bennett & Anor]

BETWEEN:
  MARK JOHN BENNETT
  Plaintiff

AND:
  PHYLLYS WINIFRED BENNETT
  Defendant

AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 02/02/1996

The plaintiff was born on 21 May, 1959 and was injured on 22 May, 1990 when the motor vehicle in which he was travelling overturned.  The motor vehicle was owned by the plaintiff's mother, who is the defendant in these proceedings.  He was taken to the Princess Alexandra Hospital.  He then complained of right shoulder pain and a sore head, but he was uncooperative and so a full examination was not possible.  A head wound was sutured, and he was released into the custody of the police.  He returned to the hospital on 31 May, 1990 having been referred there from the Redland Hospital after an X-ray detected a chip fracture of the C7 vertebra.  He was complaining of cervical and right upper-arm pain.  Further X‑rays revealed a subluxation at the C6 and C7 levels of the cervical spine.  It was said that, "X‑ray changes were consistent with a posterior ligamentous injury only with no associated fractures . . .".  He was treated by immobilisation in a hard collar and then in a halo thoracic brace, which was fixed in position by pins inserted into the skull.  He was discharged on 4 June, 1990.  On 16 August, he had no pain, and it was thought that his injury had healed. 
           Dr Crawford examined him on 12 July, 1990. His report, ex. 3, discloses that he found no disability in either leg or in the left arm.  He had a full range of right arm movement at the shoulder, elbow and hand but much less power, "in the major muscle groups in the right arm than he had in the left arm".  There was "old damage" to the brachio radialis attributable to a previous fracture of the ulnar at football and interference with sensation in the arm and fingers.  He was found to have approximately sixty percent of grip strength in the right hand.  Dr Crawford thought that he would not be fit to resume work as a welder and boilermaker for at least twelve months.
           Dr Pentis saw him in July, 1993.  He was still complaining of stiffness in the neck, headaches, pain in the cervical musculature and difficulty in lifting.  By this time, his incapacity had been exacerbated by falling down a flight of stairs.  He told Dr Pentis that he had not been able to return fully to work. Indeed, he said he had not worked for the past two years.
           Dr Pentis found tenderness in the right cervico-scapular musculature and in the lower cervical-upper thoracic region of the spine.  The range of movement in the right upper arm was decreased, and there was pain in rotation and lateral flexion. 
           Dr Pentis saw x-rays which showed the subluxation at the C6-C7 level and degeneration at the C3, C4, C5, C6 and C7 levels, most marked at the C3-4 levels.  He estimated the loss of capacity of the spine attributable to the injury at the C6-C7 levels at 10 to 15 percent of the efficient function of his spine as a whole.  He advised conservatism in the plaintiff's recreational, sporting and work activities and that he not carry out jobs which were stressful or repetitive to the neck musculature and upper limb girdle area.  He was advised not to do a lot of overhead work.
           Dr Pentis saw him again on 12 October, 1995.  He was still complaining of restricted movement and pain in his neck, although it was not continual (sic).  He had soreness in the arms and woke up at times with pain if he had slept the wrong way.  He complained of decreased movement of his neck and para-aesthesia occasionally on the ulnar border of the hand and forearm.  He had occasional headaches.  He experienced restriction in lifting. 
           Dr Pentis anticipated difficulties with more strenuous activities and with overhead work and in lifting weights.  He advised against returning to work as a boilermaker in the long term and suggested that he change to lighter work.  Dr Pentis considered that the more strenuous the activities he performed, the more likely it would be that his condition would degenerate and the greater would be the extent of degeneration.
           The plaintiff  saw Dr Morris on or about 16 March, 1994.  He complained to him of difficulty in his work as a boilermaker, the difficulty being associated with use of the "heavy rolling shield".  He said that he experienced pain in his neck after working for about an hour.  He said that after falling down the stairs in March, 1991 he experienced pain in his neck, "following that with spasms in his neck again".
           He complained of intermittent pain in the neck over the preceding three years, particularly associated with his sleeping position.  He said that he had not worked since 1991, although it seems that he must have tried to work because he complained of use of the shield. 
           X-rays revealed the subluxation of the C6 and C7 vertebrae and a fracture to the upper surface of C7.  The disk between the C3 and C4 vertebrae was markedly narrowed, and there were anterior osteophytes and some narrowing of the posterior foramina with posterior osteophytes.  These X-rays had been taken on 31 May, 1990.  More recent X-rays taken on 16 March, 1994 showed narrowing of the disk space at C6-C7 level anteriorly, with widening of the interspinous distance posteriorly.  There was no apparent subluxation.  X-rays of the C3-C4 levels showed that the disk space had narrowed markedly since the last examination, with further forward subluxation.  There was marked narrowing at the C5-C6 level with slight retrolithesis at C4-C5 and reduction in the effective diameter of the central canal from C4 to C7 due to congenital narrowing. 
           Dr Morris considered that had the plaintiff not had the accident in question, he would within one or two years, probably have experienced similar symptoms due to degenerative change, particularly at the C3-C4 level.  He considered it unlikely that the degenerative changes at the higher levels were in any way attributable to the accident.  He quantified the disability attributable to the accident at three percent of his total body person and the overall disability of the neck at eight percent.  He considered it possible that the neck condition might prevent him from returning to welding, but said that there were many other jobs which he could do, although lifting should be limited to about 20 to 30 kilograms.
           Dr Morris saw him again on 22 August, 1995.  He still complained of pain at night, particularly if he slept the wrong way.  Wearing a face shield at work still caused discomfort.  He was unable to play sport.  His pain was intermittent, but might last for a couple of hours at a time.  He could often go a couple of days with no pain and then experience pain for a day or two.  Dr Morris understood that he was at that time doing light work, although some allowance was being made for him, particularly in connection with wearing the face shield.  He said that he was coping reasonably well, but that he was only able to weld for about an hour and a half.
           Dr Morris considered that the total disability to his body from his neck problems was about eight percent, of which half could be related to the accident and half to degenerative change.  He thought that his neck would stiffen with time and that this would help him to work longer hours.  He did not expect the disability from the accident to increase "a lot" over the next few years, but it was possible that there could be increased disability associated with the degenerative changes.  He thought that he should be able to continue working at metal fabrication and light welding, although he might have problems doing welding because of the face mask.
           Dr Pentis considered that the plaintiff's likely work expectation as a boilermaker, had he not been injured, might have been ten years as a median point of the possible range. Dr Morris estimated the probable duration of "a full working life", had he not been injured, at five to ten years.  Dr Morris was surprised that he complained about the shield.  Dr Morris wears a similar shield in operating and so is familiar with the nature of the equipment.  He said that he experienced difficulty only in flexing the neck.  The transcript is, I think, inaccurate at page 154, lines 41 to 46.  I am fairly confident that Dr Morris said that he also had neck problems, but that does not appear in the transcript.  It is not a matter of any great significance in this case.
           Mrs Coles, an occupational therapist, found significant reduction in hand-grip strength in both hands.  This seems a little inconsistent with Dr Crawford's findings, but any discrepancy is of little overall significance.
           The evidence as to the plaintiff's work history is somewhat unsatisfactory.  He finished school at year 10 and undertook an apprenticeship, which was interrupted by a period of imprisonment.  Subsequently, he completed his apprenticeship in 1980 or 1981.  He said that he then worked at numerous construction jobs, especially in Gladstone and at the Tarong Power Station. He said that he was at Tarong for over three years.  Thereafter, he went to live on a property at Couchen Creek, near Beerwah.  In evidence, he said he thought he may have gone there in 1987, but other evidence relating to his work at Tarong shows that he finished there in 1985. Again, it probably does not matter very much.  He seems to have worked on the property and supported himself, presumably with the assistance of social security payments. He occasionally did welding work there. 
           Subsequently, he commenced work at the Cairncross Dock in ship-refitting.  He was employed by United Ship Repair Services, an organisation with which his stepbrother was associated.  That firm has provided a letter, ex.10, which shows that he worked for them in September-October 1986, May-June 1987, September 1987, July-November 1989, and November-December 1989.  This suggests about six months' work if he worked for the whole of each indicated period.  Such tax records as he has show that in the tax year 1986‑87, he received gross wages of $5471.62, and that in the 1987-88 tax year, his total taxable income was $5004.  There appears to be no documentation relating to the 1988-89 tax year.
           In the 1989-90 tax year, he worked for Alco Steel Constructions from 9 April to 30 May, 1990, during which period he derived net wages of $3850.  In that year, he also worked for Brisbane Autowreckers, deriving net wages of about $500, and with United Ship Repair Services, deriving net wages in excess of $8500.  His total taxable income, as returned, for the 1989‑90 tax year was $17,202.  This was the best he had done for many years. It offers some support for his assertion that in the course of that year, and immediately prior to the accident, he was taking steps to sort out his life.
           Following the accident, he returned to work on 21 November, 1990, taking employment in the construction of the BHP mini-mill at Rocklea.  His employer was Skilled Engineering Pty Ltd, and he remained in employment until 23 February, 1991 for net wages of about $6200.  This appears to have been quite heavy work, welding together a steel frame to hold steel billets to be used in the mill.  He said that he had difficulty performing the work and found it necessary to take frequent breaks.  Mr Watson, who was the leading hand-boilermaker, did not notice any restrictions in his capacity to work, although he agreed that the plaintiff was inclined to stop work rather too frequently.
           The witness, Morgan also worked with the plaintiff at that job.  Although he said that he thought that he was sometimes very slow in his work, Mr Morgan thought sufficient of the plaintiff as a tradesman to secure employment for him with his own subsequent employer, A.J. Bush and Sons, a job which the plaintiff held for some months.  He was let go when the work ran out, but was again employed at Mr Morgan's request in the following year, 1995, for a further period of some months.  There was concern about his performance, largely because of his attendance record, but this was attributed to domestic problems.  It is unlikely that Mr Morgan would have, on two occasions, asked for him to be employed to work with him unless he thought that he was able to perform a reasonable day's work. 
           I accept that the plaintiff is restricted, to some extent, in his capacity to work, but I do not accept that the restriction is as substantial as the plaintiff and some of his witnesses have suggested.  No doubt he can only cope with a degree of difficulty, but nonetheless, he has undertaken full-time employment for three extended periods of time.  His pre-tax income for the 1994-95 tax year was $27,998.  He has also performed other casual work on a cash-in-hand basis.  Some of this was associated with the "back-yard" building of boats.  I should say that for some years, the plaintiff has had an incentive not to work in that he has had the care of varying numbers of his children.  He is presently receiving a supporting parent's benefit.  I do not criticise him for choosing to look after his children rather than work, but his claim of incapacity must be seen in this context.
           I am sure that he has suffered significant pain associated with his injury and with the other changes in his neck.  I am also satisfied that he will continue to suffer some pain and inconvenience in the future.  However I am persuaded that he would probably have developed significant degenerative change in his neck, producing pain and incapacity had the accident not occurred.  In all of the circumstances and being as generous as I can, I award the plaintiff the sum of $12,000 for pain, suffering and loss of amenity.  Of this sum, I attribute $8000 to past loss and award interest on that sum at two percent per annum for five and a quarter years, the period since the issue of the writ.  This shows a sum of $840.  Special damages are agreed at $1927.55.  Of that sum, $200 should bear interest at six percent per annum for five and a quarter years, showing $63.  There is a claim for domestic assistance provided by the plaintiff's mother.  The claim is for one hour per day for three months at $8 per hour.  The claim appears reasonable in all of the circumstances and totals $720.  I allow interest on that sum at two percent per annum for five and a quarter years, showing $75.
           The question of past economic loss is a difficult one.  He was clearly able to return to work in November, 1990.  Given his less than satisfactory work history prior to the accident, his family situation and the other problems in his neck, it is difficult to conclude either that he would probably have remained consistently in employment had he not been injured or that the periods of unemployment which he has experienced since the accident were probably attributable to the accident.  He suggested that he left Skilled Engineering to find lighter work, but he agreed in cross-examination that the construction project was finished. I am also satisfied that the termination of his employment at A.J. Bush & Sons on each occasion had nothing to do with any perceived incapacity.  On the first occasion, they ran out of work.  On the second occasion, they found that Morgan, the plaintiff and a third employee were no more productive than Morgan and the plaintiff had been. Morgan was more senior than the plaintiff.  The third employee, the witness Wimbus, was retained rather than the plaintiff because it was easier to terminate the latter as he was an independent contractor whilst Wimbus was on wages. The position is further complicated by the views of Drs Morris and Pentis that his expected unimpaired work life in the absence of the accident was probably five or, perhaps, ten years.  It is therefore possible that he would, in any event, have stopped work by now. 
           Similar, indeed more acute problems arise in considering the question of future economic loss.  I am satisfied that he has been, since November, 1990 capable of maintaining full-time employment, although with some increased difficulty associated with the totality of his neck pain.  In 1990-91, he worked continuously for three months.  He also worked for four and a half months from mid-July 1994 until the end of November and for a further period from May to September, 1995.  The best I can do is award a global figure to represent both past and future economic loss.  For past loss, the award should represent an allowance for the probability that had he obtained more work, he would have lost short periods of time as a result of his incapacity, which would, to some extent, have been attributable to the accident.  For the future, it should represent compensation for similar loss and also recognise the possibility that his unimpaired working life has been shortened by the accident.  For both past and future loss, and including an allowance for interest on past loss, I award him $30,000.
           In summary the award is:

Pain, suffering and loss of amenity  $12,000.00
Interest on $8000 at 2% p.a. for 5¼ years  $840.00
Agreed special damages  $1,927.55
Interest on $200 at 6% p.a. for 5¼ years  $63.00
Domestic assistance  $720.00
Interest on $720 at 2% p.a. for 5¼ years  $75.00
Past and future economic loss  $30,000.00
  Total  $45,625.55

Turning to the question of liability, the plaintiff claims to have no knowledge of the circumstances surrounding the accident.  It is common ground that he was travelling in his mother's car at the time of the accident and that he was authorised by her to use it.  However he did not have a driver's licence, and his driving history was such that had he been again convicted of drink-driving with a blood-alcohol level of .15 or above, he would probably have been sentenced to imprisonment.  It is not entirely clear from his evidence whether he recalled the circumstances in which he left the mobile home park where he was staying with his mother. In his evidence, he said he left with a Mr Nichols, who was driving.  Nichols gave evidence to that effect.  Nichols said that he and the plaintiff went to the Waterloo Hotel in Wynnum. The plaintiff has no recollection of that.  He remembers waking up at the Princess Alexandra Hospital with doctors, nurses and police surrounding him. 
           He had been found on the Esplanade by two ambulance officers.  Somebody had informed the ambulance station about the accident, and an ambulance vehicle was sent to an accident scene, ".... near the Manly Yacht Club, south on the Esplanade."  The vehicle, driven by the witness Richard French, accompanied by the witness Kevin William Dawes, drove along the Esplanade until they found the accident.  The standard procedure in such situations was for one officer to inspect the vehicle and the surroundings and for the other officer to attend immediately to any apparent casualties.  On this occasion, Dawes looked after the casualty and French inspected the vehicle.  French marked the location of the accident on ex. 27.
           Exhibits 19, 25 and 27 are identical air photographs of the area.  The boat harbour can be seen in the bottom right-hand quarter of the photograph.  The Esplanade runs along the waterfront from right to left across the photograph. The right of the photograph is north and the left, south.  In approximately the middle of the photograph, there is a circular building with a number of other buildings around it, with reclaimed land to its immediate south.  This is the Yacht Club.  The highlighted area on the Esplanade to the west of the building is the entrance as identified by Mr French.  The other highlighted area to the south along the Esplanade is his location of the accident. The vehicle was on the western side of the Esplanade, that is the side away from the water, lying on its roof.  The plaintiff was on the other side of the Esplanade. 

           Dawes was unsure whether he was conscious or unconscious when he first found him but subsequently noted that he was conscious.  He was un-cooperative and abusive. Dawes asked him if he was the driver of the car, and the plaintiff said that he was.  He said something about having been in the hotel earlier in the afternoon and that he was on his way home.  Dawes asked a number of other questions but received no answers.  At a later stage, French asked him, "How did you get out?" The plaintiff replied that he had crawled out.  French also asked him if he was the driver. The plaintiff said he was not. French asked where the driver had gone, and the plaintiff said, "He shot through.  Gone.  Took a walk.".  He also said that the driver was somebody he had met at the hotel prior to the accident.  Dawes had no recollection of hearing such statements by the plaintiff, and French did not know if they were made in Dawes' presence.
           Dawes puts the scene of the accident in a somewhat different position from French.  His recollection appears in ex. 25.  He has marked the entrance to the Yacht Club at a point north of the point identified by French. The highlighted area on the right is Dawes' location of the entrance. The highlighted area on the left is his location of the scene of the accident.  In evidence, he was adamant that the scene of the accident was 300 metres south of the entrance to the Yacht Club.  French's evidence is supported by the witness, McKaskill who was then a police officer at the Wynnum Police Station.  He attended the scene, although he was not the investigating officer.  He was the station sergeant, but as there was nobody else available to attend the scene, he went.  When he arrived at the scene, he found the vehicle, which he thought may have been a station-wagon, on its hood.  His indication of the location appears in ex.19.  He has marked the same area as that marked by French.  In all of the circumstances, I accept the evidence of French and McKaskill that the motor vehicle and the plaintiff were found in the area marked with the letter "M" on ex. 19.  The vehicle was on its hood when found.  I see no reason to reject the evidence of either Dawes or French as to what the plaintiff said to each of them at the scene.
           When the plaintiff had sufficiently recovered from the consequences of the accident, he made some attempts to find out what had happened.  Obviously, the only persons he could ask were his mother and Nichols.  His mother probably told him that he had left the mobile home park with Nichols and perhaps told him that Nichols was driving when they left.  The plaintiff's account is that he asked Nichols on a number of occasions between 1990 and 1993 who was driving the vehicle after they left the hotel.  Nichols consistently said that he did not know.           The plaintiff commenced these proceedings in late 1990, alleging that the vehicle was driven by an unknown driver at the time of the accident.  In 1993, apparently because of what his solicitors told him about his prospects of success in the action, he told Nichols that it was most important that he identify the driver.  Apparently, he was more persuasive on this occasion because Nichols responded by speaking to the witness Beatson who then came forward and said that the had been the driver or authorized Nichols to say so.
           Nichols said that he went to see the plaintiff on the day of the accident because he thought it was close to his birthday and intended to have a drink with him.  He parked his own car in a carpark at the mobile home park and then drove the plaintiff's mother's car (which he described as the plaintiff's grandmother's car) to the hotel.  He thought they may have had a game of pool.  In the course of the evening, they met two other people whom he had not previously seen.  After the hotel closed, he returned to the mobile home park and slept in his car.  He was given a lift by the two previously unknown people.  At this stage, in his evidence‑in-chief, he referred to two other persons at the hotel, apart from those  I have mentioned.  They were Beatson and Lewis.  He said that as he was getting into the car belonging to the other two men, he saw Bennett and Beatson get into Bennett's mother's car outside the hotel.  Bennett got into the passenger seat and Beatson got into the driver's seat.  The vehicle did a U-turn as it drove off.
           In cross-examination, it emerged that the witness had been going out with the plaintiff's niece.  He said that when they went to the hotel, he had intended to drive home, but later decided that he had drunk too much.  As to the two unknown persons, he said in cross-examination that he thought that one of them may have been known to Bennett.  He said that Lewis and Beatson were not drinking with them during the evening.  He knew Beatson from the Alexander Hills Hotel.  He said that the plaintiff also seemed to know him.  After closing time, when they were outside the hotel, the plaintiff said that he wanted to go to a party.  At some stage, they all got into Beatson's car, "and discussed it a bit more", that is the question of going to the party and how they were going to get there.  Nichols then got into the car belonging to the other two men, which was parked in front of the hotel. 
           When he next saw the plaintiff after the accident, he told him that he had last seen him heading off to a party.  He said the plaintiff did not ask whom he had been with or who was driving.  Nichols then said that he may have told him that it was one of the fellows they had been drinking with.  He was adamant that he had not told him that it was Beatson.  He said that had he been asked, he would not have told him that it was Beatson because, "I don't like putting people in trouble and Bob had asked me after I told him what happened, you know, don't say anything, because Mike was all right."  The basis of this concern appears to have been that Beatson had left the scene of the accident.  Nichols said he inferred that this was so because the plaintiff's mother had told him that they did not know who was driving the car at the time of the accident. 
           It is difficult to understand this attitude.  If Nichols thought that the plaintiff had made a recovery from whatever injuries he had received, it is difficult to see that there was any real risk to Beatson in disclosing to the plaintiff his role in the affair.  Nichols said in cross-examination that he was asked by Beatson not to say anything, "probably a few months afterwards".  As he said that he saw the plaintiff, "just after he got out of hospital" (p.163, ll.19 and 20), any failure to disclose Beatson's role at that time could not have been attributed to any request by Beatson that he not disclose it.  However, Beatson suggested that this request was made at an earlier time, and perhaps Nichols was mistaken in this regard.  Nichols also said that he told Beatson that the plaintiff did not know who was driving.  In 1993, as a result of the plaintiff making it clear that he would be in a lot of trouble if he could not find the driver, Nichols said that he spoke to Beatson and was authorised to disclosed his role in the matter. 
           On 3 September, 1990, Nichols made a handwritten statement to insurance loss adjusters.  In that statement, he identified himself as a good friend of the plaintiff, which conflicted with his suggestions in evidence that the relationship was rather more distant.  His account was that he and the plaintiff had been drinking alone, although the plaintiff, on a couple of occasions, spoke to, "some other guys".  He said that at about 10.15, he, the plaintiff and three of the plaintiff's mates walked to the front of the hotel.  He did not know the names of the other three.  They were all very drunk, although one seemed less drunk than the others as he had been drinking light beer.  One of the male persons mentioned a party, and the plaintiff said that he would go.  Nichols did not want to go as he had to work the following day and had already had more than enough to drink.  One of the others enquired as to where he lived, and he told him that he lived at Thornside.  This man then said that he would drive Nichols home whilst his mate took the plaintiff in his mother's car.  Nichols saw the plaintiff's car drive towards the beach, and he then left with the other man, who drove him to Thornside.  He said initially in his statement that he there collected his car.  Later in the statement, he said that after he was dropped off, he walked to his car and went to sleep.  He said that about two weeks later, he saw the plaintiff and was informed that he had been in an accident.  He was not sure where the accident had occurred and could not recall who was driving. 
           It will be seen that there are a number of inconsistencies between these two versions.  In evidence, Nichols said that there had been two persons, other than Beatson and, Lewis, both of whom had driven him home.  In his earlier statement, he said that there were possibly three other persons, none of whom he knew by name.  One drove him home, and one drove the plaintiff's car.  There is also no reference in the statement to the discussion which occurred in Beatson's car in the carpark.  Nichols claimed that he had initially made up a story which concealed Beatson's involvement in the matter.
           There is a third version which, on the plaintiff's evidence, must have come from Nichols, with some possible input from his mother or from a tow-truck driver from whom he allegedly received information.  This is an account by the plaintiff to the witness Davies, a loss adjuster who went to the mobile home park to speak to the plaintiff's mother.  He spoke to the plaintiff instead.  The plaintiff told him that they had met people at the hotel who were not known to him and that one of them had said something about a party.  He decided to go to the party, but Nichols was either not invited or did not want to go.  Nichols was then given a lift back to the mobile home park whilst an unidentified male person agreed to drive the plaintiff in his mother's car.  This person had only been drinking  light beer and was either not over the limit or less likely to be over the limit than any of the others.  This unidentified person ran away after the accident.  Davies thought that the plaintiff had been purporting to give him his own account of what had happened, but when the plaintiff was cross-examined about these statements to Davies, he made it clear that it was based upon what he had been told by others.
           Finally, I turn to the evidence of Beatson.  He initially said that prior to the incident in question, he had been at the Waterloo Bay Hotel with Warren Lewis.  He said that he had not been consuming alcohol as he is virtually a non-drinker.  They played pool most of the time.  He had previously met the plaintiff at the hotel at which he is employed.  He said that he left the hotel and drove a small, light‑coloured Cortina with the plaintiff as a passenger.  He said that the plaintiff initially wanted to go to see somebody so they drove for some distance.  After about half an hour, as they were driving down a steep hill, because he was travelling a little too fast, he hit the brakes, and the vehicle skidded.  He tried to correct it.  It hit the gutter on the far side and flipped over onto the footpath.  He identified the scene of the accident as the area circled in blue ink on ex.19.  Obviously, this is a very long way from the point at which the accident actually occurred.  The vehicle ended up on its passenger side.  On his version, Lewis had been following them in Beatson's car, and the two of them decided to leave the scene after he helped the plaintiff out of the overturned car.
           In cross-examination, Beatson said that he knew Nichols only by sight and that he did not know any of the others with whom the plaintiff had been drinking other than by sight.  He said that they were, at one stage, all seated in his car because the plaintiff had been drinking and Nichols wanted to go and was leaving.  He said that he made the decision that the plaintiff should not drive and said that he would drive.  Beatson said that the plaintiff was determined to take his mother's car and that therefore it was not an option for him to drive the plaintiff to the party in his own car.  Lewis was also an unlicensed driver and an epileptic, so it is perhaps curious that Beatson should have been willing to allow him drive his car.  When cross‑examined about his willingness so to assist the plaintiff when he hardly knew him, Beatson said that he would do the same for anybody if he saw him at an hotel and knew that he was going to drive.  He said that he had not been drinking on the night on question but agreed that if he had been drinking, he would have been drinking "half wine and soda".  It was suggested to him that in October last year, he had told an insurance investigator that he had probably had one or two wines and sodas.  He did not deny having said that, although he apparently could not remember it.  It is obviously inconsistent with his assertion in evidence before me that he had not been drinking at all.  He said that it was the plaintiff who issued the invitation to the party. 
           He said that they left the plaintiff at the scene because he did not wish to leave his mother's car.  He did not seem hurt at that stage.  He said that Nichols told him subsequently that the plaintiff could not remember anything about the accident.  He told Nichols not to bring him into it.  He said that his reason for this was that he had left the plaintiff at the scene of the accident when he had been injured.  He did not hear anything further about the matter until 1993 when Nichols contacted him again.  He was told that the driver had to come forward for the court case.  The assertion that the car ended up on the passenger side posed problems for Beatson in cross-examination.  He was not convincing in explaining how he and Lewis helped the plaintiff out of the car through the driver's side window while he, Beatson, was still in the driver's seat.
           Beatson had given a statement to the plaintiff's solicitors.  In the statement, he said that he and Lewis arrived at the Waterloo Hotel at about 7 p.m. and there met the plaintiff, who was accompanied by a fellow called "Mick", apparently a friend of the plaintiff.  He had previously met the plaintiff when he was working as barman-bouncer at the Alexandra Hotel.  He said that he had approximately three to four wines and soda in the course of the evening.  He said that the plaintiff was drinking heavily and that at about 10 p.m., there was a suggestion that they go to a party at Lota, which party was being held by a mutual friend of the plaintiff and Lewis.  He suggested to the plaintiff that he was in no condition to drive and the plaintiff agreed, but did not want to leave his mother's car at the hotel.  Beatson said that he would drive and that Lewis could bring his car.  Nichols elected not to go to the party and went home.
           Paragraph 7 of the statement is in the following form:

"Prior to driving Mark's mother's car, I told him that I had a valid licence and that I had been driving for a substantial period of years".

This seems an unusual statement in the circumstances. 
           Beatson said that the accident occurred about five minutes after they had left the Waterloo Hotel carpark.  This was quite inconsistent with what he said in evidence.  He said that he clipped the gutter and lost control of the car which ended up on an embankment and rolled over onto the driver's side.  Again, this is inconsistent with his evidence before me that the car ended up on the passenger side.  He said that he could not recall whether Lewis assisted the plaintiff out of the car, but Beatson himself got out under his own steam through the passenger door.  He asked the plaintiff if he was all right and was told that he was.  He had abrasions, but only minor ones. 
           He suggested that they, "take the bolt", leaving the car until the morning.  Lewis agreed, and Beatson said to the plaintiff, "What are we going to do?  Look, I do not want to be held responsible for what has happened.  I'm going."  He said that the plaintiff appeared uncomprehending of what was going on around him because he was in shock.  Beatson could see nothing else wrong with him, save for the abrasions.  He tried to convince the plaintiff to leave with them, but he would not go.  Beatson left because he was afraid that his wife would find out that the had gone to the Waterloo Hotel.  This fear was no doubt related to the fact that he and Lewis had arranged to meet some girls, although they had not turned up.  He was also not sure whether the plaintiff was insured and whether he would get into trouble for driving the car.  He said that he saw Nichols on a number of occasions thereafter at the Alexandra Hotel.  He first saw him about a week after the accident.  He saw the plaintiff again about two to three months after the accident, but did not speak to him about it.  When he was approached in 1993, he agreed to come forward.
           Beatson sought to justify or explain a number of the discrepancies between his evidence and the statement upon the basis that he had, in fact, corrected  errors in the statement when it was shown to him.  Whether this was so or not, he certainly signed an uncorrected copy, and the only statement produced by the plaintiff's legal advisers in response to its being called for was that to which I have referred. 
           In the end, I cannot accept the evidence of Nichols or Beatson.  It is difficult to accept Nichols' explanation that he did not wish to disclose Beatson's involvement to the plaintiff.  There was no real risk to Beatson flowing from the fact that he had been involved in the accident, given that he was not apprehended immediately thereafter.  Even if his evidence that he was not drinking be rejected, there could have been no question of a drink-driving charge at that late stage.  There may have been some prospect of a dangerous driving charge, but only if the plaintiff were to tell the police.  It seems unlikely that a person who was, on the balance of the evidence, much closer to the plaintiff than to Beatson, should have chosen to protect Beatson at the expense of the plaintiff.  It is fairly clear that Nichols knew from an early stage that the plaintiff needed to know who had been driving.  The suggestion that some additional pressure led to Nichols disclosing that information in 1993 is quite unpersuasive.  The discrepancies between his statement and his evidence are also difficult to overlook.  Whilst it is possible that he simply decided to delete all reference to Beatson and Lewis when he gave his statement in 1990, this seems unlikely.  It would have been just as easy for him to say that there were four people, none of whom was known to him as it was to say that there were two people.  The former story had the advantage of being closer to the truth.
           I am quite persuaded that I cannot accept Beatson's evidence.  In his 1993 statement, he does not even identify the scene of the accident and says that the car ended up lying on the driver's side.  Before me, he located the accident a considerable distance from the actual scene, some hundreds of metres away if not nearly a kilometre.  It is also most unlikely that his explanation of how the accident occurred could be translated to the actual scene.  In evidence before me, he said that the car ended up on the passenger side.  The fact of the matter is that it ended up on its roof.  In addition to this, there is the quite unconvincing account of the circumstances in which he came to assist the plaintiff, a person who was virtually unknown to him, simply because he was drunk.  Then there are the other minor inconsistencies, including his evidence as to his own drinking on the night and the different account given in the statement.  I do not accept his or Nichols' evidence that the former was driving.

           The plaintiff must show that he was injured as the result of the negligent driving of the motor vehicle by a person other than himself.  Such person would be the statutory agent of the owner of the motor vehicle, and the owner would therefore be liable in this action.  As the circumstances of the accident are sufficient to establish negligence, the plaintiff need only show that somebody else was driving.  He need not prove the identify of that person.  There is no onus upon the defendant or the defendant by election to prove that the plaintiff was driving, as there is no presumption that somebody other than the plaintiff was driving.
           He had the authority of the owner to authorise other persons to drive, and he had done so earlier in the evening when he authorised Nichols to drive the car to the hotel.  However it is common ground that Nichols was not driving at the time of the accident.  I am very much inclined to infer that the plaintiff was driving, relying upon these facts and the admission made to Dawes.  Of course, he effectively withdrew that admission.  I suspect that shortly after speaking to Dawes and notwithstanding his condition, he realised that he was in a very perilous position because of his driving record.  That is probably why he asserted that somebody else had been driving.  It is only necessary that I find that I am not satisfied on the balance of probabilities that Beatson was driving at the time in question, because that is the only basis upon which the plaintiff's case has been put.  Nonetheless, I record that I am also not satisfied that anybody other than the plaintiff was driving.  I give judgment for the defendant by election.  I fix quantum at $45,625.55.  I will hear submissions as to costs.