Blake v Gruber

[2002] NSWSC 1131

CITATION:	Blake v Gruber [2002] NSWSC 1131
FILE NUMBER(S):	SC 20357/95
HEARING DATE(S):	23 - 25, 28 - 29 October 2002
JUDGMENT DATE:	28 November 2002
PARTIES :	Roderick Andrew Blake - Plaintiff Natalie Louise Gruber - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	AJ Bartley SC with CL Thompson - Plaintiff RR Bartlett with WM Fitzsimmons - Defendant
SOLICITORS:	Robert H Storey - Plaintiff Sparke Helmore - Defendant
CATCHWORDS:	claim for damages for personal injury - motor vehicle accident - prescribed concentration of alcohol - driver of the vehicle - direct evidence - circumstantial evidence - expert opinion evidence - injury patterns - reliance upon arrangement between parties - responsibility for own injuries - contributory negligence
LEGISLATION CITED:	Motor Accidents Act 1988
DECISION:	Verdict for the plaintiff, reduced by 17.5% pursuant to s74 of the Motor Accidents Act 1988.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

28 November 2002

20357/95 Roderick Andrew BLAKE
v Natalie Louise GRUBER
JUDGMENT

1 HER HONOUR: In these proceedings the plaintiff, Roderick Blake, claims damages for personal injury arising out of a motor vehicle accident in the early hours of 14 August 1993 at Boorowa in NSW. He alleges that he was a passenger in the motor vehicle, which was being driven by the defendant, Natalie Gruber. It is agreed between the parties that, if the plaintiff establishes, on the balance of probabilities, that the defendant was the driver of the motor vehicle, he is entitled to an award of damages. That is because there is undisputed evidence that, at approximately the time of the accident, there was present in the defendant’s blood more than the prescribed concentration of alcohol (approximately .204, or in the range of .191 to .232 on one estimate, between .188 and .213 on another) and that, for that reason alone, it should be inferred that the accident was caused by her negligence: see Motor Accidents Act 1988, (the “MAA”), Part 6.

2 For the plaintiff’s part, it is accepted that, if he succeeds in his claim, the resultant award of damages must be reduced by some proportion in accordance with s74 of the MAA. This is because he accepts that a finding of contributory negligence is appropriate – even inevitable – having regard to his knowledge, or constructive knowledge, of the defendant’s intoxication.

3 The parties have agreed, subject to the assessment of the amount to be deducted pursuant to s74 of the MAA, on the quantification of damages should the plaintiff be successful. Accordingly, only one principal issue, and potentially one subsidiary issue, arise for determination.

4 The competing positions of the parties are simple and clear. Each alleges that the other was the driver of the vehicle at the time of the collision. A great deal of evidence was adduced with a view to establishing which of the two was the driver. Before coming to that evidence, it is convenient to outline broadly the relevant circumstances. A great deal of the evidence was uncontroversial. The background facts may be stated as follows.

5 The plaintiff was born on 17 March 1960. In August 1993 he was 33 years of age. He lived on and managed a farm called “Illyria”, which was situated on Rye Park Road, Boorowa, about 12 or 14 kilometres east of the township of Boorowa. The farm was owned by a family trust of which the plaintiff was a beneficiary. The defendant lived on the adjoining property, “Buena Vista”, the entrance to which is about three kilometres further east on the same road. In 1991 a romantic relationship existed between the plaintiff and the defendant and they adopted a practice of driving into town on Friday nights. Their usual destination was one of the four hotels in the town, most frequently the Boorowa Hotel, commonly known as “the top pub”. It was their practice to drive together into town, usually in a Holden Rodeo utility registered in the name of the plaintiff’s family trust, but to alternate the return driving with one of them designated as driver for the evening. This allowed the person who was not the designated driver to consume alcohol. The designated driver limited his/her consumption in accordance with road traffic requirements.

6 The romantic aspect of the relationship between the two came to an amicable end some time in 1993, before August. For about six weeks commencing shortly after the termination of the relationship, the plaintiff was absent from the district, working on a relative’s property at Wallendbeen, forty five kilometres distant. He returned to “Illyria” about 10 August. He and the defendant arranged to go to Boorowa on the evening of Friday 13 August.

7 On that evening the defendant drove in her vehicle to the plaintiff’s property. She was accompanied by two friends, Jane Gibbons and a woman called Amanda, whose surname did not emerge in the evidence. Thursday 12 August had been the defendant’s birthday. In circumstances as to which the evidence is not entirely uncontroversial, and will therefore not be here outlined, the four travelled into Boorowa in the Holden Rodeo utility. The plaintiff drove. They went to the Boorowa Hotel, parking in a side street onto which one side of the hotel faced.

8 The plaintiff and the defendant remained in town, though not continuously in one another’s company, until shortly after the closing time of the hotel, about 12 midnight. They left together in the Holden Rodeo utility. The precise circumstances in which they left the hotel are a matter of considerable controversy, and will be explored below.

9 About five kilometres out of town the vehicle ran off the road. Initially it ran onto the grass verge and struck a white guide post. It rolled, at least once, and slewed across to the opposite side of the road and came into collision with a dirt bank. (The precise sequence of these events is unclear.) It came to rest facing west, the opposite to the direction in which it had originally been travelling. The plaintiff lost consciousness for a time although for how long a time is not known.

10 Somehow, and at some time, the defendant extricated herself from the vehicle and walked into Boorowa. At about 3.00 a.m. she awoke a friend, Jacqueline Graetz who was staying with her mother in Boorowa, by knocking on the window. Ms Graetz arranged for an ambulance officer to attend. The defendant was taken to Boorowa Hospital.

11 At about 3.45 a.m. Mr William Eustace, a Boorowa baker, was travelling from his home at Rye Park to Boorowa township. He was driving from east to west. He saw the Holden Rodeo in a seriously damaged condition. The engine was not running, but the motor was still warm. The plaintiff was in the vehicle. He was seated on the driver’s side, reclining towards the left of the steering wheel. The defendant was not present. Mr Eustace drove to the local ambulance station, but could not make contact with anybody. He called the emergency number and arranged for police and fire brigade to attend the scene.

12 Boorowa ambulance officers Newling and Gerstenberg attended the scene, arriving at about 4.02 a.m. They also saw the plaintiff seated in the driver’s seat and lying towards the passenger seat.

13 The plaintiff was also taken to Boorowa Hospital, and subsequently to the Woden Valley Hospital. On 20 August, at the Woden Valley Hospital, he was interviewed by Senior Constable Sloane. When required to give the name and address of the driver of the Rodeo at the time of the accident, he identified the defendant.

14 On 8 September the plaintiff was again interviewed, this time by Senior Constable Shiels. Again he stated that the defendant had been driving the Rodeo at the time of the collision. He said that he had been sitting in the passenger seat, but that he had no recollection of the accident. He said that his first recollection after the collision was of coming to in the passenger seat, moving to the driver’s seat and attempting to move the vehicle, but being unable to do so. The defendant was not present.

15 The defendant was subsequently charged, although the nature of the charge or charges did not emerge in the evidence. However, the plaintiff gave evidence in the prosecution case in the Local Court. That occurred on 26 July 1994. He gave an account of the events of 13 August. This account included the assertion that he had been seated in the passenger seat.

16 Sergeant Peter Bickford attended the scene of the accident and assisted in freeing the plaintiff. He then learned that a female “passenger” had left the scene and was walking into town. He attended Boorowa Hospital where he saw the defendant, in the company of her father. She had obvious injuries. She appeared to be dazed but conscious. Sergeant Bickford asked the defendant if she had been the driver of the vehicle at the time of the collision. She replied that she had not, and that she had crawled out through the windscreen and come into town. After a couple of further questions, the defendant’s father intervened to prevent the continuation of the questioning.

17 On 20 August Sergeant Shiels took a statement from the defendant, while she was a patient in the Woden Valley Hospital where she had been transferred. When asked if she had been the driver of the vehicle, she said she could not remember. Nor could she remember anything about the collision itself.

18 On 8 September the defendant was interviewed again by Sergeant Shiels. She was again unable to say who had been the driver of the vehicle. When asked where she had been sitting, she said:

“It feels like I’m sitting in the passenger seat but I can’t honestly say.”
* * *

19 The evidence I have outline above was undisputed, although the statements attributed to one or other of the parties cannot be taken as undisputed evidence of the truth of the contents. The preponderance of that evidence points to the defendant as the driver of the vehicle, and the plaintiff as the passenger. However, the defendant now denies that she was the driver, and asserts positively that the plaintiff was driving the Rodeo. This gave rise to considerable dispute, with each party adducing evidence intended to establish the proposition for which he/she contends. Evidence to establish which of the parties was the driver of the car falls into three categories:

(i) direct evidence;
(ii) circumstantial evidence;
(iii) opinion evidence from traffic accident reconstruction experts and from a medical practitioner.

20 Both the plaintiff and the defendant gave evidence. I should say here that, so far as I could discern, both gave their evidence honestly. I could not prefer the evidence of one over the other on the basis of demeanour, or anything to do with the manner in which they gave their evidence. Plainly, both had something to gain from advancing the proposition that the other was the driver, but I detected no sign that the evidence of either was tailored for the purpose of promoting his/her contention. The reliability of the evidence will have to be gauged by means other than the assessment of the demeanour of these witnesses.

21 The plaintiff’s evidence on this question began with his account of the circumstances in which the arrangement to go into the hotel was made. He said that that arrangement was made “a couple of days” before the Friday, and that the defendant had said that she would pick him up at “Illyria” and that they would travel to town together from there. He said that there was a conversation about whose turn it was to drive and that it was the defendant’s turn and that he had said he “needed a bit of a night off” as he had been away working. He said there was no argument about this.

22 When the defendant did in fact arrive, she was in the company of two friends, driving her family’s utility. He said that, on her arrival, she expressed concern about the performance of the utility, and asked if they could take the Rodeo. This did not entirely suit the plaintiff, as he had only recently returned from Wallendbeen, and the Rodeo was not ready to be driven into town – it still had some fencing gear and steel posts in the back and pieces of a fuel tank of a motor cycle in the front. This necessitated cleaning up the vehicle, which was done and he drove the Rodeo into town.

23 On the plaintiff’s evidence, none of this was a significant departure from the norm, although, according to him, prior to the cessation of the romantic relationship between the parties, he had been in the habit of driving to “Buena Vista” to pick up the defendant. If the defendant was the designated driver she would drive the Rodeo home. The presence of the defendant’s friends was also out of the ordinary, but presently immaterial.

24 The defendant’s account of the usual practice of the parties was slightly, and materially, different. She said that their practice was that, when she was the designated driver, she took her parents’ property vehicle and would drive and not drink, allowing the plaintiff to drink; when the plaintiff was the designated driver he took the Rodeo; he would drive and drink lightly, and the defendant would drink.

25 She said that the arrangement for the excursion was made on Wednesday 11 August, when she visited the plaintiff at “Illyria”. So far, that evidence is completely consistent with that of the plaintiff. However, she also said that she specified that the arrangement was to go into town to “celebrate my birthday”. She had no memory after that of any of the events prior to the accident.

26 It was, accordingly, put to the plaintiff in cross-examination that it was made plain to him that the purpose of the outing was to celebrate the defendant’s birthday; he denied that proposition. He knew, however, that it was her birthday, and that others would join the defendant for the purpose of celebrating that event.

27 The plaintiff’s evidence of what happened then was that he drove to the Boorowa Hotel, and parked opposite the hotel in the side street adjacent to the hotel. He parked nose in, at a forty-five degree angle. He and the three women had a drink together, over about ten or fifteen minutes, after which the three women left to go to another hotel. He remained at the Boorowa Hotel, drinking full strength middies of beer. The defendant returned to the Boorowa Hotel at about 10.00 p.m., and they were from time to time, but not constantly, in one another’s company.

28 The hotel closed at about 12 midnight, or shortly thereafter. At that time the front entrance of the hotel is closed, and exit is by the side door, to the street where the plaintiff had parked the Rodeo. He left the hotel with the defendant, her sister Kylie Grocott, and her husband Paul Grocott, and a man called Peter Sykes. They chatted for a time and the Grocotts left. The plaintiff and the defendant entered the Rodeo. The plaintiff said that he entered on the passenger side, and the defendant took the driver’s seat. She drove to the Courthouse Hotel, looking for Jane Gibbons, but when they could not find her she drove out of Boorowa on the Rye Park Road.

29 The defendant was unable to cast any light on this part of the evening. She had no recollection beyond the Wednesday evening. However, the evidence of another witness, in respect of this part of the evening, is of great significance. Initially, it appeared to cast considerable doubt upon the plaintiff’s account.

30 Klaus Mirisch was an acquaintance of the defendant, to the extent that he had met her on three occasions prior to 13 December. They, with two others, had made tentative arrangements to play tennis together. However, there was nothing in the evidence that would justify any conclusion that Mr Mirisch fabricated or tailored his evidence in order to assist the defendant’s case. I thought he gave his honest recollection of the events of which he spoke.

31 Mr Mirisch was a construction worker, employed temporarily in Boorowa, and living on a property five kilometres out of town. Some of his co-workers lived in the Boorowa Hotel. They worked long hours and were in the habit of going to the hotel after work, and having one or two beers, after which he went home.

32 Mr Mirisch gave evidence which, if accepted, was damning of the plaintiff’s case. He said that he had been present in the hotel on the evening of Friday 13 August, and had spoken briefly to the defendant. She had introduced him to “her boyfriend”, clearly the plaintiff. Contrary to his usual practice, Mr Mirisch had remained at the hotel until closing time and had left by the side door with the plaintiff and the defendant. His vehicle was parked in the side street, on the opposite side to the hotel. The plaintiff’s vehicle was parked on the same side of the road as the hotel. (This, it will be recalled, was in contrast with the plaintiff’s evidence that he had parked opposite the hotel.) Both vehicles were parked rear to curb. (This, too, was in contrast to the plaintiff’s evidence that he had parked nose to curb.) The plaintiff and the defendant entered the Rodeo, the plaintiff in the driver’s seat, the defendant in the passenger’s seat. In a non-responsive answer to a question asked in re-examination, Mr Mirisch said that the headlights of the Rodeo were facing towards him.

33 Mr Mirisch was extensively cross-examined on this evidence. He remained adamant of the matters of which he had spoken. He said that he had a clear recollection of the evening because he had stayed later than he usually did. This was because:

“This is big night with a band.”

He was insistent that a band had been playing that night.

34 He recalled the plaintiff’s entering the driver’s side of the Rodeo because he was conscious of his (the plaintiff’s) moving towards the right of the Rodeo, and, the Rodeo having been reversed into the parking spot, this was the driver’s side. He denied any suggestion that the Rodeo was not parked rear to curb but nose to curb and said that, in his experience, the common practice was to park rear to curb. This was for ease of exit.

35 Two matters of fact cast considerable doubt on the reliability of Mr Mirisch’s evidence. The first concerns his recollection of the presence of a band at the hotel. No other witness gave evidence of such a recollection and some positively denied it. In reply, the plaintiff was able to adduce evidence that, ordinarily when entertainment was provided at the hotel, that fact was advertised in advance in the local newspaper. Issues of the local newspaper for August 1993 showed no such advertisement. From this it might be inferred that Mr Mirisch was mistaken in his recollection, or, more probably, had confused the evening of 13 August with some other occasion. This is hardly surprising. He was not asked until 1996 for his recollection of the evening. He did not say, as might have been expected, that he fixed the occasion in his mind by reason of, shortly after, having heard of the accident. There was no obvious reason for Mr Mirisch, three years after the events, to remember the events with such apparent clarity, and to be in a position to fix the date of the events he claimed to recall.

36 The second matter of fact affecting Mr Mirisch’s reliability is his recollection of the manner in which the plaintiff’s vehicle was parked. The plaintiff himself said in his evidence-in-chief (before he had notice of Mr Mirisch’s evidence) that the normal manner of parking at the hotel was “nose in”. Again, without notice of what was to come from Mr Mirisch, the plaintiff denied a proposition put to him in cross-examination that he was parked rear to curb. He said:

“In Boorowa all the parking is front to curb.”

37 Notwithstanding that Mr Mirisch was called late in the defence case, the plaintiff was able to obtain some evidence to support his position. He produced photographs showing the hotel, the side street, some parked vehicles, and a parking instruction sign. The photographs show that all vehicles are parked nose to curb, and the instruction sign clearly directs drivers to park “front to curb”. The photographs had been taken the previous Saturday (Mr Mirisch having given his evidence on the Friday) by the plaintiff’s mother, and, of course, they depict the area a little more than nine years after the events in question. However, the plaintiff said in his evidence in reply that the parking arrangements had not changed during that time, and common knowledge dictates that this is most likely to be the case.

38 For these reasons, and notwithstanding that I did not find Mr Mirisch to be other than an honest witness, doing his best to give accurate evidence, I am of the view that his evidence is unreliable and should be put to one side.

39 The evidence of the plaintiff and that of Mr Mirisch was the only direct evidence as to who was driving the vehicle at the time of, or shortly before, the accident.

circumstantial evidence

40 There were a number of pieces of evidence that, in effect, made out a circumstantial case as to the identity of the driver. Not all of this points in the same direction. Some points to the plaintiff as the driver, some to the defendant. Perhaps the most significant piece of such evidence implicating the defendant was the plaintiff’s evidence that, when the outing was arranged, he told her that he wanted “a night off” and that it was, in any event, her turn to drive. Added to this was the agreed fact that the defendant drove to the plaintiff’s farm, but then abandoned her vehicle because she was having problems with it. The weight which can be attributed to this latter matter, however, should not be overstated. Although, in the past, the plaintiff had often driven to the defendant’s farm to pick her up, the relationship between the two had changed, and it would not be unreasonable to conclude that their practices had also changed in some respects. Further, the evidence makes it reasonably plain that it was common for the plaintiff and the defendant to drive each other’s vehicles from time to time. Just as the fact that they were travelling in the plaintiff’s Rodeo does not establish that he was the driver, or even point to that fact, neither does the evidence that the initial plan was to take the defendant’s vehicle establish that she was the driver. It is merely one relevant circumstance, of little significance.

41 Balanced against the plaintiff’s asserted reason for not being the driver is the defendant’s equally valid reason – she was celebrating her birthday and did not wish to be inhibited in her alcohol consumption. Accordingly, these factors are of little assistance. They finish up being neutral. To the limited extent that reliance can be placed on the evidence about the choice of vehicles, it favours the plaintiff’s position. It fits neatly with the defendant’s account of their practices – that if she were to be the driver, she took her family’s vehicle. It was only the last minute change of plan that saw the Rodeo used.

42 More compelling, and adverse to the plaintiff, is his location in the vehicle when Mr Eustace, and later ambulance officers, came upon him. By that time he was seated on the driver’s side. His explanation justifies scepticism. It was that, having come to in the passenger’s seat, and realising that the defendant was not present, he believed that he was in some danger, and positioned himself in the driver’s seat with the intention of moving the car to a safer position. He was not, however, able to start the engine. He attempted unsuccessfully to use the two-way radio to call for assistance. If this were the high point of the plaintiff’s case, I would find it difficult to conclude that the defendant had been driving the vehicle. In the plaintiff’s favour, in this respect, however, is another small piece of evidence. The plaintiff said that before moving to the driver’s side of the vehicle, he attempted to leave by the passenger door, but was unable to open it. The door was, in fact, as later evidence showed, jammed.

43 Also inculpating the plaintiff as driver was the evidence, such as it was, of the defendant’s exit from the car. At the time of trial she had no recollection of this. However, Sergeant Bickford spoke to her at the Boorowa Hospital. This must have been in the early hours of Sunday morning. Sergeant Bickford did not give evidence but his statement was admitted without objection in the defendant’s case. He said that he asked the defendant if she had been driving at the time, and she replied:

“No, I wasn’t driving, I crawled out I think through the windscreen and come into town.”

44 This answer was given at a time when she appeared to be dazed but conscious and unlikely to be in a position to embark upon an elaborate fabrication in order to protect her position.

45 Alone, the defendant’s statement is neutral. However, when put together with photographic evidence it is a (small) piece of evidence in her favour. Photographs of the vehicle show considerable damage, including damage to the windscreen, which appears to have been pulled away from the frame of the vehicle, noticeably on the left hand side. Further, the evidence was consistent with evidence of the ambulance officer, Mr Gerstenberg. In a statement he said that, while he was attending the plaintiff at the scene of the accident, the plaintiff told him that the defendant:

“had just climbed out of the vehicle and walked off …”

46 It is, of course, possible that the defendant climbed from the driver’s seat, across the plaintiff, and out through the windscreen where it had come apart from the vehicle. However, to the extent that this evidence favours the case put by either party, it favours that put by the defendant.

47 Both parties also relied upon the evidence of their injuries. Ms Alison Blake, the plaintiff’s sister-in-law, is a physiotherapist. She visited the plaintiff in the Woden Valley Hospital on the Sunday afternoon. The plaintiff was unconscious. He was wearing only a hospital gown which exposed the upper part of his body. She particularly observed what she described as a grey friction burn on the left side of the chest wall. From her description, the burn was of the kind one might expect to see caused by the sudden tensing of a seatbelt after a collision. This would indicate that the plaintiff had been seated on the left side of the car, in the passenger seat. Notwithstanding her obvious close connection with the plaintiff, there was no reason to think that Ms Blake was not giving an account of her honest recollection of her observations, and, indeed, the contrary was not suggested. It was, however, suggested that Ms Blake’s recollection might be faulty, since there was at least one other injury, medically recorded, which she did not recall. Ms Blake was another witness who was not asked until shortly before the trial to commit her recollection to writing. There was no evidence that she had, prior to the week before the trial, been asked about her observations of the plaintiff. I do not find her lack of recollection of the other injury particularly surprising. Ms Blake has, as a result of her profession, some medical knowledge, and I accept that the plaintiff had the injury she described. She had a particular interest in chest injuries. The most significant injury suffered by the plaintiff was to his left ear, which was almost torn off. Ms Blake also described other injuries to the left side of his head and body. Such injuries are, obviously, consistent with the plaintiff’s having been a passenger and thrown against the door and window of the car. However, medical evidence, to which I shall shortly refer, suggested other explanations, for example that the plaintiff, as driver, was thrown against the defendant as passenger, and that the lacerating injury to the left ear was caused by being thrown against the rear vision mirror.

48 However, Ms Blake’s evidence is counter-balanced by medical evidence suggesting that the defendant also had predominantly left-sided injuries, notably what appeared to be a seatbelt injury to her left side.

49 Nor is it surprising that no mention of a seatbelt burn appears in the medical records. In the light of the other injuries sustained by the plaintiff, this aspect of his injuries was trivial.

* * *

50 There was also evidence, principally from the plaintiff’s sister, Vivienne Ross, that she inspected the vehicle a few days after 13 August. Among other things, she observed some strands of hair, approximately the same colour as that of the defendant, in the driver’s side window cavity. In some reports this was assumed to be the defendant’s hair. Mr Ross saw a large quantity of blood on the passenger side floor but none on the driver’s side. This evidence, like so much else in this case, is barely of assistance. Sergeant Bickford made something of an inspection of the vehicle while it was still at the scene of the accident. He took long hair particles from both the upper portion of the near-side passenger window, near the grab handle, and also from inside the driver’s side window.

expert evidence

51 Three expert witnesses provided reports, and gave oral evidence. They were:

(i) Dr Raymond Newcombe, a specialist neurosurgeon, who treated the plaintiff at the Woden Valley Hostpital, and who, in addition to his specialist medical qualifications, had expertise in relation to the assessment of traumatic injury;

(ii) Mr Grant Johnston, a consulting engineer who is well on the way to the completion of a Masters degree in Biomedical Engineering, who was qualified and called in the plaintiff’s case;

(iii) Dr Michael Henderson, who is a qualified medical practitioner and who has undertaken specialist work in the investigation of the dynamics of crashes and road safety with the Department of Motor Transport of NSW, and who was qualified on behalf of the defendant.

52 The focus of the evidence of each expert was on ascertaining which of the two parties was more likely to have been the driver at the time of the accident. In order to undertake this exercise, each began with certain factual assumptions, some of which are unsubstantiated by the evidence, and some of which are, in fact, directly contrary to evidence that I accept. This makes evaluation of their conclusions more than usually difficult. The difficult task that the experts had was to attempt, on the basis of known or assumed facts, to reconstruct the accident, and from that reconstruction, to form an opinion as to which of the two was more likely to have been driving the vehicle. In each case, a significant factor – in the end, in my view, the most significant factor – was the analysis of the injuries suffered by each party.

53 Mr Johnston and Dr Henderson both attempted a reconstruction of the course taken by the Rodeo in the last moments before it collided with the bank. Initially, they came to variant conclusions, but, after consideration, Dr Henderson accepted that, in part at least, Mr Johnston’s analysis was more likely to be correct than his own. That was that the vehicle ran off the road to the left, collided with the guide post, slewed sideways across to the other side of the road (leaving tyre marks caused by the two left side tyres), turned almost one hundred and eighty degrees, and collided with the dirt bank, hitting the front left side of the vehicle. At some (uncertain) stage it rolled over. There remained a degree of disagreement about the angle at which the vehicle hit the bank. This was a relatively small area of disagreement.

54 I doubt if the initial, or the remaining, divergences of opinion between the two in respect of the precise trajectory of the vehicle are of real significance in the determination of the central question. It is accepted that the impact of the vehicle into the bank was to the front and left and that this would have caused the two occupants to have been thrown to the left, the driver (particularly if not wearing a seatbelt) into the passenger.

55 All experts based their opinions primarily upon an analysis of the injuries sustained by the two occupants.

56 The plaintiff’s injuries were described by Dr Newcombe as follows:

“There were facial lacerations. He had haemorrhages beneath the conjunctiva on each side. There was contusion of the lungs. He had a fracture of the lumbar spine (L1 vertebra) with retropulsion of a fragment shown on CT scan. There were fractures of the transverse processes of L2 and L3 vertebrae on the right side. There was a laceration of the left ear and left shoulder. He had a fracture of the left sphenoid bone in the skull and possible fracture of the right zygomatic arch.”

57 Dr Henderson extracted from another medical report a further description of the plaintiff’s injuries. Relevantly, this included:

“… contusions and abrasions to the left forehead, face and shoulder … several lacerations to the left shoulder, and a partially severed left ear … respiratory difficulties … the abdomen is recorded as showing ‘board-like rigidity’”

58 The defendant’s injuries were also described by Dr Henderson. Of these injuries he wrote:

“Lacerations of her head and face were observed, plus contusions on the left side of her chest. … bruising round both eyes … laceration to the forehead, a painful sternum and bruising in the left chest. A haematoma was noted in the left occipital region, extending behind the left ear … Haematomas round both eyes, slightly worse on the right. … Behind her left ear is a dark haematoma, extending to the rear into the occipital region … in the upper left parietal region, near the part in her hair, is another sutured laceration … Under her left arm, extending forward to the left breast and rearward and downwards to her left lower ribs in her back is an extensive area of severe bruising and abrasion. There is bruising under her left arm near the axilla. She has a linear abrasion at the base of the left side of her neck. The right side of her upper back is also bruised, although less severely.”

59 Dr Newcombe was specifically asked, by investigating police, his opinion as to:

“ … where either person was positioned in the vehicle at the time of collision.”

60 To answer that question, Dr Newcombe wrote:

“The soft tissue injuries were more marked on the left suggesting impact on the left side of the cabin of the vehicle. The spinal fractures were more marked on the right, more consistent with the tortional (sic) strains associated with the lap component of a lap sash seatbelt on the left hand side. On this basis it is my opinion that Mr. Blake was likely to have been positioned as a front seat passenger in the vehicle at the time of the collision ...”

61 Mr Johnston’s opinion in respect of the same question was stated as follows:

“6.7 …it is my opinion that Mr Blake was either a restrained or unrestrained passenger, and that Ms Gruber was an unrestrained driver. This is consistent with initial movement to the left and Ms Gruber having ramped up against Mr Blake resulting in a high strike position around the top of left front passenger’s door of the vehicle and the referenced grab handle in this location. In my opinion the deposits of hair occurred in this region at this time.”

62 Dr Henderson wrote three separate reports. In the first of these, he wrote:

“The left side of Natalie Gruber’s chest clearly came into heavy contact with a solid structure to her left, and this probably occurred during this first impact. It could also have occurred when the left side of the vehicle hit the ground as it rolled, although in my opinion this is less likely because the impact would not have been so abrupt.
If Ms Gruber was the passenger, her left side chest injuries are consistent with impact against the interior of the left door and its structures, such as the arm rest. If she was the driver, it is difficult to suggest any substantial part of the interior that would cause such injuries.
The laceration in the upper parietal region of her scalp is consistent with impact against structures above the left door, including the ‘grab’ handle and the sharp edges of body panels. Long hairs were taken by police from the upper part of the passenger-side window and from near the grab handle. …
As the left side of her head engaged the structures in the upper part of the left side of the cabin, her head would have rotated to the left. This would have brought her face into contact with the A pillar and the adjacent windscreen. These contacts are consistent with the pattern of lacerations on her face, including the parallel lacerations above her right eye. The severity of the impact would have been sufficient to cause a fracture of the base of the skull, an injury that results more typically from impact with the side, front or back of the head than the top.
… Ms Gruber’s injuries are more consistent with her having been seated in the passenger seat than the driver’s position. This conclusion is based on the heavy contact she sustained on the left side of her chest, and the position of the lacerations on her face and head. As the driver, it is possible that she might have sustained the head and face lacerations, but the heavy left sided chest impact would have been highly unlikely …
On the other hand, the injuries sustained by Mr Blake are more consistent with his having been in the driver’s position at the time of the crash. His chest injuries are typical of steering-wheel contact. His spinal injuries are typical of the kind of compressive loading that occurs in rollover, and there was greater roof crush over the driver’s position.”

63 Dr Henderson criticised Dr Newcombe’s observations on the relationship of the type of fractures to seatbelt use, saying they were not supported by the international literature on seatbelt injury. He wrote:

“The fracture of the body of L1 appears to have been the result almost or entirely the result of axial compressive loads and shear loading, a scenario which is most untypical of a seatbelt related fracture. Seatbelt loads of a force sufficient to cause fracture of the lumbar spine would almost certainly have resulted in typical transverse bruising of the abdominal wall, but this is not noted in the hospital records.
Mr Blake’s contusions to the lung, associated with rigidity of the abdomen, are strongly suggestive of contact against the steering wheel, although possible contact with some other part of the interior cannot be excluded.”

64 In his third report Dr Henderson referred to “linear petechiae” across the defendant’s abdomen which were interpreted as being caused by the strap of a seatbelt.

65 He agreed with Mr Johnston that the driver would have been thrown against the passenger, and considered this perfectly consistent with the defendant’s chest injuries:

“which included heavy and widespread abrasions over her left chest …”

66 He described the plaintiff’s injuries as “rather more diffuse … without local bruising or abrasions”, and from this concluded that he might have come into contact with the relatively soft body of a passenger, protecting him from the kind of injuries sustained by the defendant.

67 Each expert was extensively cross-examined on the opinion he had expressed.

68 Of great importance to Dr Henderson’s opinion was his view of the aetiology of the plaintiff’s lumbar injury. Dr Henderson was convinced that this was a compression fracture, caused, most probably, by forces exerted on the plaintiff’s head from the ceiling of the vehicle when it rolled over, and transmitted downwards through the spine. He did not accept the proposition that this necessarily entailed an assumption that the plaintiff had not been wearing a seatbelt. A less preferred alternative of Dr Henderson was that, when the vehicle impacted with the bank, it jumped, and the subsequent descent to firm ground caused forces to travel upwards from the base of the spine, causing the compression fracture.

69 Both Dr Newcombe and Mr Johnston rejected this analysis. They did not accept that the lumbar fracture should primarily be seen as a compression fracture, caused by the imposition of axial forces. Mr Johnston’s view was that compression forces of the kind postulated by Dr Henderson would be far more likely to cause cervical injury. To this Dr Henderson riposted that the plaintiff did indeed have a fracture to the base of the skull.

70 Mr Johnston wrote:

“6.11 I do not support the hypothesis that this injury occurred as a result of vertical loading on the head transmitting this load down the spinal column and resulting in a lumbar fracture. The probability of this load being transmitted down a spine which naturally contains three curves above the region of the of fracture and would also require transmission of the forces through the smaller cervical vertebrae all the way to the strong lumbar vertebra and then causing fracture does not appear to be consistent with the probable biomechanics of the spinal column.
6.12 It has been my experience in the past in examining the effects of rollover crashes that the application of vertical loads of this type to the apex of the head results in base of skull or cervical spine injuries rather than transmission to the lower and stringer (sic) part of the spinal column. Lumbar burst fractures can occur as a result of vertically transmitted loads on landing in the buttocks region, such as from falls onto hard ground, but not in my experience from vertically transmitted load from the top downwards.”

71 When cross-examined, Mr Johnston expanded upon this view, saying that on the assumption that the plaintiff had not been wearing a seatbelt and that his head had come into collision with the ceiling of the car during the rollover, it was unlikely that his trunk would have been upright in such a way as to permit the vertical transmission of forces hypothesised by Dr Henderson.

72 In his oral evidence Dr Newcombe agreed that the fracture was dominantly a compression fracture, but said that some degree of flexion was probably also involved. This was because there was “a side curvature” described as a “thoraco-lumbar curvature convex to the left”. He rejected any notion that the plaintiff’s spinal fracture was caused by “purely axial forces and no torsional forces”. This, however, was precisely the proposition advanced by Dr Henderson. Dr Henderson added that the seatbelt load of a force sufficient to cause fracture of the lumbar spine would almost certainly have resulted in transverse bruising of the abdomen wall, but that there was no mention in the hospital records of such an injury.

73 It is pertinent here to observe that, although Dr Henderson saw a large number of x-ray reports, he did not see the x-rays themselves.

74 I have come to the conclusion that Dr Newcombe was in a superior position to Dr Henderson to explain the nature and the probable mechanism of the plaintiff’s injury. Not only did he have the management of the plaintiff’s treatment, he saw the x-rays, which Dr Henderson did not. His recollection of the x-rays was a significant factor in Dr Newcombe’s opinion.

75 As to other injuries, Dr Henderson’s view was that the plaintiff’s contusions to the lung, associated with an observed rigidity of his abdomen, was strongly suggestive of contact against the steering wheel, although he conceded that contact with some other part of the interior of the vehicle could not be excluded as the cause.

76 Dr Newcombe also dealt with this. He observed that the bruising of the lung was dominantly left-sided which, it seems, suggested to him something other than impact with the steering wheel as the cause. Mr Johnston also commented on this. He rejected the steering wheel theory as the cause of the plaintiff’s chest injuries for two reasons. In this respect his disagreement with Dr Henderson’s reconstruction of the collision itself becomes significant. Mr Johnston considered that, having regard to the angle at which he believed the vehicle hit the bank, it was unlikely that the driver would have hit the steering wheel at all. I should say here that I formed the view that Mr Johnston’s reconstruction of the final part of the collision was more persuasive than that of Dr Henderson, particularly in the light of Dr Henderson’s concession that he had erroneously tracked the vehicle in his first analysis. The second thing Mr Johnston said was that, if there had been a frontal collision, as theorised by Dr Henderson, he would have expected much more severe steering wheel injuries to the driver.

77 I am persuaded by the evidence of Dr Newcombe and of Mr Johnston in this respect.

78 There remain some mysterious aspects of this matter. Both parties had injuries suggesting the wearing of a passenger-side seatbelt. Plainly, both cannot have been in that position. Neither had injuries suggestive of wearing a driver’s side seatbelt. It was, presumably, for this reason that the consensus appeared to be that the driver (whoever he or she was) was not wearing a seatbelt. Indeed, Mr Johnston said that he would have expected the driver, had he or she been wearing a seatbelt, to have had reasonably obvious seatbelt markings because of the severity of the impact. He would not have had so strong an expectation in relation to the passenger because, the impact being on the left, the passenger would have been thrown only a short distance before coming into collision with the door. None of that is of the slightest assistance in determining which of the two occupants was in the driver’s seat.

79 It also seemed to be accepted, by both Dr Henderson and Mr Johnston, that the driver, particularly if unrestrained, was probably thrown against the passenger. This, it seems to me, favours the conclusion that the plaintiff was the passenger. This is because of his more severe injuries, particularly the spinal injury.

80 Having balanced all of the expert evidence, but particularly having regard to the injury patterns, I have, not without hesitation, come to the view that it is more likely that the plaintiff was, indeed, the passenger. His explanation for being found in the driver’s seat, which I have already stated I treat with some scepticism, is the most significant factor causing me to doubt that conclusion. However, there is no objective reason to disbelieve what he said. I have reached the conclusion I have on the basis, so far as I am able, of an objective analysis of objective evidence.

81 I find, on the balance of probabilities, that the plaintiff has established that the defendant was the driver of the vehicle, and that his injuries were attributable to her fault in the use and operation of the vehicle (MAA, s69). The plaintiff is entitled to an award of damages in accordance with the agreement reached between the parties, subject to a reduction pursuant to s74 of the MAA.

82 There was little evidence on which to reach a view concerning the quantification of that reduction. The defendant’s blood alcohol reading indicates a considerable level of intoxication which should have been apparent to the plaintiff, even in his own intoxicated condition. Of some significance is the evidence of the custom of the parties as to designating a non-drinking driver. The plaintiff was entitled to rely upon the defendant’s adherence to this arrangement. Doing the best I can on the limited materials available, I find that the plaintiff’s responsibility for his own injuries should be assessed at 17.5%.

**********

Last Modified: 12/02/2002