Briers v Motor Accidents Insurance Board - [2017] TASSC 68

[2017] TASSC 68

COURT: SUPREME COURT OF TASMANIA

CITATION: Briers v Motor Accidents Insurance Board [2017] TASSC 68

PARTIES:  BRIERS, Allen Matthew
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO:  1053/2016
DELIVERED ON:  20 November 2017
DELIVERED AT:  Hobart
HEARING DATES:  8, 9 November 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Insurance – Motor vehicles – Compulsory third party insurance and like schemes – Unidentified vehicle – Evidence – Weight of evidence that injuries caused by negligence of driver of unidentified vehicle.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s 16(1)(a).
Aust Dig Insurance [1096]

REPRESENTATION:

Counsel:
             Plaintiff:  P Zeeman
             Defendant:  B R McTaggart SC
Solicitors:
             Plaintiff:  Blissenden Lawyers
             Defendant:  Murdoch Clarke

Judgment Number: [2017] TASSC 68
Number of paragraphs: 34

Serial No 68/2017
File No 1053/2016

ALLEN MATTHEW BRIERS v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT BLOW CJ

20 November 2017

On the evening of 23 July 2015 the plaintiff, Allen Briers, rode his motorcycle along Euston Street, Claremont, intending to visit a relative named Scott Crowe who lived at 28 Euston Street. Something happened that caused the plaintiff to come off his motorcycle, land on the road, and suffer a serious injury to his leg. He contends that his motorcycle was struck from behind by a vehicle that had been following him, causing him to lose control of his motorcycle, and to be thrown from it. He contends that the driver of the other vehicle stopped briefly, but then drove off, and that the other vehicle cannot be identified. His version of events is disputed. The defendant, the Motor Accidents Insurance Board, contends that no other vehicle was involved in the plaintiff's accident.
The plaintiff has sued the Board for damages in respect of his injuries, relying on s 16(1)(a) of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"). That provision reads as follows:
"(1) Where it is alleged that some person has, as an owner or user of a motor vehicle, incurred a liability in respect of which he would be entitled to be indemnified by the Board under this Part but —
(a)the identity of the motor vehicle cannot be established; or
(b)…
the like proceedings may be taken against the Board in respect of that liability, and the like judgment obtained against the Board, as could have been taken or had against that person."
On 5 September 2017 Holt AsJ made an order requiring the issue of liability to be tried before the issues relating to damages.
The Board contends not only that there was no unidentified vehicle involved in the accident but also that, if there was, then the plaintiff has failed to prove that the identity of that vehicle "cannot be established".
Evidence as to how the accident occurred was given by the plaintiff and by a witness named Lionel Fewkes. Mr Fewkes gave evidence of having seen a car knock the plaintiff off his motorcycle. Counsel for the Board called four witnesses – an ambulance officer, a police officer, a nurse and a doctor – with a view to establishing that the plaintiff had given various versions of events that were inconsistent with his evidence that his motorcycle was struck from behind by an unidentified vehicle.

The evidence of Mr Fewkes

I have considered the evidence of Mr Fewkes very carefully, and have decided that I am not prepared to place any reliance on his evidence at all. I will deal with his evidence first. His evidence-in-chief was to the following effect. He was visiting Mr Crowe, and having a few drinks with him in his garage. He was looking out of the garage window, which faced down the driveway towards Euston Street. He noticed that a motorcycle was coming into the driveway, that a car came past, that the car knocked the motorcyclist off the bike, and that he landed on the road. He said he remembered the motorcycle's indicators flashing. He continued "… and then as he got hit – we – well it spun around in the air and he landed back on the – on the road and was still on the bike". He said he was "expecting a car to pull up" but when he came outside the vehicle was gone.
Mr Fewkes phoned 000 to ask for an ambulance in the presence of the plaintiff and other people. A recording of his conversation was played during the trial and tendered as an exhibit. During that conversation the 000 operator asked him what had happened. He replied, "Someone fell off a motorbike and needs Emergency." After a few more questions, the operator asked him, "Did he hit a car or was it just his bike that he fell off?" Mr Fewkes did not respond to the operator at that point, but asked a person or persons at the scene, "Did he hit a car?" A woman can then be heard saying, "No. A car hit him." Mr Fewkes then told the operator, "A car hit him." If Mr Fewkes had truly seen the accident, he would not have needed to ask whether the plaintiff hit a car. He would have been able to tell the operator what happened.
The only police officer who attended the accident was First Class Constable Walker. He was the police officer who gave evidence. When he arrived, the plaintiff's motorcycle had been taken inside Mr Crowe's garage. He said he spoke to two males who "identified themselves as being related to or knowing Mr Briers", and that they showed him the motorcycle. I infer that those two men were Mr Crowe and Mr Fewkes. Neither of them told the police officer that another vehicle had been involved in the accident. If Mr Fewkes had truly seen a hit-and-run accident, one might expect him to have told the police officer that. However it must be acknowledged that, during the 000 call, he had undoubtedly been told by a woman in the street that a car had hit the plaintiff, and he did not pass that information on to the police officer.
At some stage Mr Fewkes wrote out a statement giving a version of how the accident occurred. He said that the plaintiff asked him to do that. He said the plaintiff asked him for "something to take to court" because he was the only witness. In that statement he said the following:
"… I was visiting and standing out the front facing the road, witnessed a motorbike approching [sic] the driveway with indicator on turn in the driveway. As he was entering the driveway, I believe a silver square looking 4wd clip [sic] the bike back tyre throwing the motor bike rider in the air and the bike landed on his leg. … I then called 000 and asked for an ambulance to come while watching the car behind pull up …
… I was horrified that the 4WD had stoped breifly [sic] and the [sic] drove off in a hurry. I did not see the number plate as was concerned for the motor bike rider's wellbeing."
There are a number of points that can be made about that statement:
·     In the statement Mr Fewkes said he was "standing out the front facing the road". However there was no reason for him to have been standing in the front yard of Mr Crowe's block of units when the accident occurred, at about 7.40pm on a winter's night. In his evidence he said that he was indoors, looking out a window while urinating.
·     The assertion that he watched the "car behind pull up" while making the 000 call is inconsistent with the 000 recording and with his evidence at the trial.
·     His assertion that he saw the unidentified vehicle driven off in a hurry is inconsistent with his evidence at the trial.
·     In his evidence he described the unidentified vehicle as a "ute", but he did not include that detail in his statement.
All of the evidence that I have referred to tends to cast doubt on Mr Fewkes' assertion that he saw the accident occur. Because of that evidence, particularly the evidence of the conversation during the 000 call, I regard the evidence given by Mr Fewkes as to what he saw as absolutely unreliable.

The plaintiff's evidence as to the accident

The plaintiff gave evidence to the following effect. He was the assistant manager of a bottle shop in Claremont. After finishing work he was riding his motorcycle west along Euston Street, going to visit his relatives. In his mirrors he saw the lights of a car behind him. They were rather close. He went down through the gears in preparation for a turn into the driveway. His indicator lights were flashing. He commenced to turn left towards the driveway. He would have been doing under 10km/h. His bike was in the middle of his half of the road. He continued, "… as I was braking and clutching down I've felt a shunt from the rear which shunted me forward". He said, "After I felt the shunt I can only recall pretty much me laying [sic] on my back and then I can't remember the whole accident, what the bike did."
He described his subsequent observations as follows. His motorcycle was lying on the road just beyond the entrance to the driveway. He saw the shape of a four wheel drive vehicle that had stopped just near his bike. He saw its brake lights were on. Then he noticed that it "just took off".
There are significant discrepancies between that version of events and other descriptions of the accident given by, or at least attributed to, the plaintiff.
Two ambulance officers attended the accident. One of them, Mr Gardner, gave evidence. He wrote a report that night. It included the following description of the accident:
"The PT [patient] has pulled over to the side of the road to allow a vehicle to pass from behind and due to a previous injury to his R wrist was unable to control the clutch of the vehicle – the motor cycle then became uncontrollable and landed on the PT with him feeling immediate pain in his leg …".
He assessed the plaintiff's level of consciousness six times at the scene over a period of nearly one hour, and noted him to be fully conscious on each occasion. In his oral evidence, he said that he thought it was actually the plaintiff's left wrist that was sore, and that he made a mistake in his report when he referred to an injury to the right wrist. He said that he noticed a bandage on the plaintiff's left wrist, and that motorcycles have their clutch controls on the left. He recorded that the patient stated that he had had two standard beers after finishing work, but the plaintiff, when cross-examined, denied saying that, and asserted that he had had nothing to drink after finishing work.
First Class Constable Walker paid remarkably little attention to the plaintiff's accident. He was on duty as an acting sergeant that night. It was a busy night. He said he arrived at Euston Street at about 8.50pm. According to the ambulance records, the 000 call was received at 7.44pm, the ambulance arrived at 7.52pm, the patient was loaded into the ambulance at 8.47pm, and the ambulance reached the Royal Hobart Hospital at 8.51pm. Mr Walker must have reached the scene nearly an hour after the ambulance did. In his diary he made a note of the time of arrival, the street in which the accident occurred, the plaintiff's name, date of birth and address, and the registration number of the motorcycle. He did not record the number of the plaintiff's licence, the names and addresses of any other persons present, or anything else. He did not arrange for a breath analysis or a blood sample. He conducted no follow-up investigations. Afterwards he completed a very brief report, in which he got the plaintiff's direction of travel wrong. That report contains the following description of the accident:
"Unit 1 has been travelling East on Euston having just left home and has swerved to miss another vehicle travelling West and has come of [sic] his motorbike having lost balance. Rider was taken to Hospital and could offer little information as to anything further involved."
No-one else has suggested that the plaintiff swerved to avoid an oncoming vehicle. Mr Walker must have got that wrong, possibly as a result of misunderstanding what he had been told, or possibly as a result of basing his report on guesswork.
Mr Walker gave evidence that when he arrived there were eight to ten people milling around the ambulance, and that he would have spoken with most of them to ascertain the details of what occurred. I infer that nobody told him that there had been another vehicle involved, or that it was a hit-and-run accident.
Within minutes after his arrival at the Royal Hobart Hospital, the plaintiff was seen by a nurse named Mark Shultz. He gave evidence. His notes recorded that the plaintiff was brought in by ambulance after a low speed motorbike accident; that he was turning into a driveway; that he lost control of the bike; and that the bike landed on top of his left leg. All of that is consistent with the version of events given by the plaintiff in his evidence. The notes record nothing as to whether or not another vehicle was involved. Mr Shultz had no memory of what the plaintiff said to him on the night in question. He said that his notes as to how the accident occurred could have been based on information from either Ambulance Tasmania or the patient.
A little later, the plaintiff was seen by Dr Paul Scott. He also gave evidence. His notes included the following:
"MBA [motor bike accident] low speed.
Slowed to let car pass moving very slowly @ time of accident.
Has pre-existing sore wrist. Was not able to pull in clutch. Motor bike ran from under him.
…
Wrist sore".
He gave evidence that he routinely wrote notes from information provided both from the patient, if the patient was able to give a history, and from the Ambulance Service.
Three days after the accident, on 26 July 2015, the plaintiff signed forms for the purposes of claiming scheduled benefits from the Board. He signed two forms – a Notice of Accident and an Application for Scheduled Benefits. His sister filled in the details. He simply signed the completed forms. It seems clear that he gave his sister an account of what had happened, and that she wrote a description of the events that was based on what he said. The description of the accident in the Notice of Accident included the following:
"I was heading to my cousins house and was unaware of the car following me until the last second. I turned into my cousins driveway and woke up a few minutes later with a lady holding my head.
She witnessed a 4 wheel drive following right behind me and watched as they hit the back of my bike causing it to flip up in the air. The driver of the 4 wheel drive did not stop after causing the accident. The lady witness stopped and rang the ambulance and held my head until I came too [sic]. I had broken my left leg and have no memory of the accident."
I make the following observations in relation to that description:
·     It contains no mention of the plaintiff feeling a "shunt" as another vehicle collided with his motorcycle.
·     It is inconsistent with the plaintiff's evidence that, when lying on the road, he saw a vehicle that had stopped, and saw it take off.
·     It is inconsistent with a note in the ambulance officer's report to the effect that the plaintiff denied retrograde amnesia.
·     The description is consistent with the 000 recording, in which a woman can be heard saying, "A car hit him."
·     The plaintiff gave evidence that the woman who saw the accident was someone that his aunt knew. However it seems that no attempt was made by the plaintiff or his solicitor to identify the woman with a view to her giving evidence.
In the Application for Scheduled Benefits, in response to a question whether the accident occurred on the way to or from work, a tick appears in a box marked "NO". That is inconsistent with the plaintiff's evidence.
On 10 August 2015, some 18 days after the accident, the plaintiff was interviewed by a loss assessor who had been engaged by the Board. She compiled a statement that took the form of typed questions and answers. The plaintiff signed each page of the completed statement. His answers in that document included the following:
"14 …
Answer:The road is in good condition, it was just starting to get dark, my headlight was on. The weather was normal, visibility was fine. I was travelling from work which is at 1 Main Road Claremont. I was intending on stopping at my uncle's house at 23 Euston Street, I think that is the number. I was behind a car and I noticed a car come really fast up behind me as I was heading up Euston Street. I could see their headlights come right up behind me and also saw the vehicle in my mirror. From my recollection I could tell it was a four wheel drive. I couldn't tell the colour. The height of the lights was consistent with the vehicle being a four wheel drive.
…
17 …
Answer:I was travelling at approximately 45kmph prior to the accident as I was following another vehicle which was driving a little slower than the 50kmph speed limit. I estimate I was travelling at 5kmph at the time of impact as I was turning into my uncle's driveway. I had already indicated to turn left and I was attempting to turn into the driveway when the vehicle impacted with my motorcycle. I don't remember looking at my speedo I am estimating the speed I was doing prior to and at the point of impact. I looked at my speedo as I was following the vehicle in front of mine as it seemed to be going slower than the 50kmph speed limit. I thought it was an elderly person driving.
18…
Answer:I had left work, attempted to travel to my uncle's house. I had a car in front of me and another vehicle behind me, believed to be a four wheel drive. There was also a car behind the four wheel drive which was behind mine. I noticed that second vehicle as I looked in my side mirrors. The four wheel driver was very close to my motorcycle, tailgating me. I was riding along and I indicated to turn left into my uncle's driveway as I turned the four wheel drive hit me on the left hand side of his car. I believe this to be the way it happened as if the four wheel drive hit me in the centre it would have run me over. The four wheel drive impacted with the back wheel of my motorcycle. The bike then flipped into the air and took me with it as I was holding onto it, and it landed on the left hand side. The motorcycle landed on my left leg. I was not pinned under the motorcycle as it continued along for approximately 1 metre after it had landed on my left leg.
19…
Answer:I had my indicator on approximately 20 metres prior to turning left. I was slowing my motorcycle to attempt to turn into the driveway. My motorcycle was impacted in the back wheel and I believe the four wheel drive was impacted on the left hand side.
…
21…
Answer:I was laying [sic] on the ground on my back and I was in alot of pain which was coming from my left leg. I saw the four wheel drive from the back of [sic] vehicle drive away from the scene. I remember at this point that it was an older style four wheel drive because of the light shape and the shape of the vehicle. I still couldn't see the colour or the number plate of the vehicle. … ."
My observations in relation to those answers are as follows:
·The answers contain a remarkably thorough description of events, unlike the plaintiff's evidence-in-chief.
·I find it very hard to believe that the plaintiff could have made any observations as to the age of the driver of a vehicle behind him, travelling along a suburban street at night. On the basis of the ambulance report, the accident must have occurred at about 7.40pm. It must have been dark.
·The plaintiff's use of the words "I believe" in answer no 18 suggests that at least some of his description is based on reconstruction rather than memory.
·His description of his observations of the vehicle following him was inconsistent with the Notice of Accident, which said that he was unaware of the car following him "until the last second".
The plaintiff signed an affidavit on 1 July 2016 for the purpose of an application for an extension of time for the giving of notice under s 16(2) of the Act. In that affidavit he said that the vehicle behind him was silver. However he told the loss assessor in answer no 21 that he could not see the colour of that vehicle. In his Notice of Accident, in response to a question seeking details of all other vehicles involved in the accident, his sister wrote, "… no details off [sic] other vehicle other than it was a 4WD".

When cross-examined at the trial, the plaintiff said that he did not recall telling ambulance officers that he had hurt his left wrist and that he had had trouble operating the clutch. He denied that he had hurt his wrist. He said he had no recollection of wearing a bandage on his wrist. He denied that he had had a couple of beers after finishing work. He said he did not recall telling the ambulance officer that he had had two standard beers after finishing work. He admitted that he then held a learner's motorcycle licence, and was not allowed to drive after drinking alcohol. He said he did not remember seeing Dr Scott. When the history taken by Dr Scott was put to him, he said he did not recall saying the things that the doctor noted.
Apart from the unreliable evidence of Mr Fewkes, the only evidence that tends to corroborate the plaintiff's assertion as to the involvement of another vehicle is the evidence of a woman saying, "A car hit him" during the 000 conversation. There is no evidence as to who that woman was, what she saw or did not see, or the basis for her assertion. She might have been a passer-by who saw nothing and jumped to an incorrect conclusion.
It appears that the plaintiff was an experienced motorist but an inexperienced motorcyclist. According to his Notice of Accident, he had held a driving licence for 20 years. He told the loss assessor that he obtained his motorcycle learner's licence about seven months before her interview with him. In his evidence-in-chief he initially said that had held a provisional licence as a motorcyclist for two weeks before the accident. However he subsequently conceded that, although he had qualified for a provisional licence about two weeks before the accident, he had not arranged to obtain one, and was still the holder of a learner's licence.
Because of a number of factors, I think it is quite likely that the plaintiff's accident happened in the way described in the notes of the ambulance officer, Mr Gardner, without the involvement of any other vehicle. The plaintiff was an inexperienced motorcyclist. Dr Scott noted a sore wrist. Mr Gardner remembered a bandage on it. Nobody told the ambulance officer, the police officer, the nurse or the doctor that another vehicle had been involved in the collision. There have been significant variations in the plaintiff's descriptions of the accident in the years since it occurred.
The plaintiff's evidence of another vehicle colliding with his motorcycle was not shaken in cross-examination. He was not an impressive witness, but there was nothing about the way he gave his evidence that would cause me to doubt his honesty. However, having regard to the strong body of evidence that suggests that this accident was not caused by the driver of an unidentified vehicle, I am not satisfied on the balance of probabilities that the accident was caused by the negligence of any other driver.

Conclusion

For these reasons, there will be judgment for the defendant.