CLEANAWAY WASTE MANAGEMENT LTD -v- INSURANCE AUSTRALIA LTD t/as SWANN INSURANCE
[2022] WADC 37
•6 MAY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CLEANAWAY WASTE MANAGEMENT LTD -v- INSURANCE AUSTRALIA LTD t/as SWANN INSURANCE [2022] WADC 37
CORAM: PETRUSA DCJ
HEARD: 13-15 SEPTEMBER & 23-24 SEPTEMBER 2021
DELIVERED : 6 MAY 2022
FILE NO/S: CIV 4350 of 2018
BETWEEN: CLEANAWAY WASTE MANAGEMENT LTD
Plaintiff
AND
INSURANCE AUSTRALIA LTD t/as SWANN INSURANCE
Defendant
Catchwords:
Insurance - Insurance Contracts Act s 51 - Third party liability insurance - Accident or suicide - Application of policy exclusions - Amount of damages - Turns on own facts
Legislation:
Insurance Contracts Act 1984 (Cth)
Result:
Judgment for plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr T M Clavey |
| Defendant | : | Mr J D Maclaurin SC & Ms S C E Andrews |
Solicitors:
| Plaintiff | : | BP Lawyers |
| Defendant | : | Holman Webb Lawyers |
Case(s) referred to in decision(s):
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Fraser v B N Furman (Productions) Ltd [1967] 3 All ER 57
Freshmark Ltd v Mercantile Mutual Insurance (Australia) Ltd [1994] 2 Qd R 390
John Connell Holdings Pty Ltd v Mercantile Mutual Holdings Ltd (formerly Mercantile Mutual Insurance Co Ltd) (1998) 10 ANZ Ins Cas 61-407
Khoury v Government Insurance Office of New South Wales (1984) 54 ALR 639
National & General Insurance Co Ltd v Chick [1984] 2 NSWLR 86
Sargent v ASL Development Ltd (1974) 4 ALR 257
The Minister of State for the Army v Dalziel (1944) 68 CLR 261
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Vero Insurance Ltd v Rail Corporation New South Wales [2013] NSWCA 372
PETRUSA DCJ:
Just after 1 o'clock on the afternoon of Thursday, 31 October 2013 Anthony Goncalves died when the Harley Davidson motorcycle he was riding collided with a truck driven by Michael Malloch. Mr Malloch was driving a truck owned by his employer Cleanaway Waste Management Ltd the plaintiff in this matter. Mr Goncalves was on the incorrect side of the road when he struck the truck. Damage was caused to the plaintiff's truck as a result of the collision. At the time of the collision Mr Goncalves had a Harley motorcycle insurance policy (the Harley policy) with the defendant company Insurance Australia Ltd trading as Swann Insurance. The Harley policy included third party liability cover. The plaintiff seeks to recover from the defendant the cost of damage caused to its property, as a result of the collision.
The defendant denies liability on the basis that Mr Goncalves would not have been indemnified under the Harley policy because his conduct fell within one or more exclusions. The exclusions relied on were referred to as:
1.the deliberate act exclusion;
2.the 'under the influence' exclusion; and
3.the reasonable precautions exclusion.
The defendant further submitted that if Mr Goncalves was indemnified by the Harley policy the plaintiff's claim was limited to the cost of repairing the damage to the truck and not to any other losses.
The Harley policy/issues
The plaintiff's claim is made pursuant to s 51 of the Insurance Contracts Act1984 (Cth) which provides relevantly that when an insured under a contract of liability insurance is liable in damages to another person and the contract provides insurance cover in respect of the liability and the insured has died, the other person may recover from the insurer an amount equal to the insurer's liability under that contract.
The deceased had a composite contract of insurance with the defendant in respect of his motorcycle. The Harley policy[1] provided:
1.'Comprehensive cover' for damage to the insured motorcycle and incidental additional benefits.
2.'Fire and theft cover' for the insured motorcycle.
3.'Third party liability cover' for damage caused by the insured motorcycle.
[1] Exhibit 4.
The third party liability cover, set out in cl 3 of the Harley policy, was expressed as follows:
We will cover you for your Legal Liability to pay compensation for loss or damage to someone else's property as a result of an accident anywhere in Australia.
The loss and damage must be caused by:
•The use of your motorcycle.
The object and scope of the cover provided by this clause is 'legal liability to pay compensation'. The legal obligation to pay compensation is I accept normally assessed by the principles of causation and remoteness of damage.
The limitations on the scope of the cover provided in cl 3 are that the compensation must be:
(a)for loss or damage to someone else's property; and
(b)as a result of an accident anywhere in Australia.
The Harley policy then provides a number of exclusions. Insofar as is relevant to this case the policy provides:
What you are not insured for[2]
[2] Exhibit 4, Harley policy, page 7.
This insurance does not cover:
•loss or damage deliberately caused by you or a person using your Motorcycle with your permission … ;
…
Rider exclusions[3]
This insurance does not cover any incident resulting in a claim where at the time of the incident the rider or person in charge of your Motorcycle or last in charge of your Motorcycle:
•was under the influence of alcohol or drugs.
•has not taken reasonable precautions to avoid the incident.
[3] Exhibit 4, Harley policy, page 8.
The first of these is what was referred to at trial as the 'deliberate act exclusion' and is one of five exclusions directed at the way in which the loss or damage is caused. The other two exclusions were referred to at trial as the 'under influence of drugs exclusion' and the 'reasonable precaution exclusion'. They were amongst a series of exclusions directed at the condition or behaviour of the rider.
Whilst arguments were advanced as to the meaning of the words 'accident' and 'property' as used in the Harley policy, and to the meaning or scope of the exclusions, the issues for determination are:
1.Does the policy cover the deceased's liability to the plaintiff, ie was the loss and damage to the plaintiff's truck caused by an accident?
2.Is the defendant's liability under the policy excluded by reason of -
(a)the deceased having been under the influence of alcohol or drugs; or
(b)the deceased not having taken reasonable precautions to avoid the incident?
3.If the defendant is liable under s 51, for what loss and damage is it liable?
These issues arise from the defendant's contention that the deceased rode his motorcycle into the truck deliberately, that is, with suicidal intent, and that he was affected by methylamphetamine at the time.
Clearly, if the deceased's acts were deliberate the collision was not an accident. An accident is something that occurs unintentionally. As the plurality put it in Australian Casualty Co Ltd v Federico:[4]
It is something which happens without intention or design. When used with reference to something which causes injury, it means an unexpected and unintended mishap.
[4] Australian Casualty Co Ltd v Federico (1986) 160 CLR 513, 527.
The issues to be determined depend upon the court's findings of fact as to the circumstances of the collision.
It is for the plaintiff to prove that the Harley policy provides cover, ie that the loss and damage is the result of an accident.
It is for the defendant to prove that its liability is excluded by the terms of the Harley policy.
In these reasons I will set out my findings as to the cause of the collision and my reasons for them. These findings will largely determine the issues.
In deciding what caused the collision it is necessary to determine the state of mind of the accused. This can only be inferred from his actions and the surrounding circumstances. The basic issue is whether the accused rode into the truck deliberately, in essence, whether he committed suicide. That is the threshold issue.
If his actions were not deliberate, and the collision was an accident, it would be necessary to decide whether he breached the policy by riding his motorcycle whilst under the influence of alcohol or drugs or by failing to take reasonable precautions.
The only evidence of possible intoxication is a blood pathology report that shows that the deceased's blood tested positive for methylamphetamine. There was expert opinion evidence given as to what could be made of this result.
The question of whether he failed to take reasonable precautions is bound up with the cause of the collision.
The evidence
The uncontested evidence in this case is that the collision occurred shortly after 1.00 pm on the afternoon of Thursday, 31 October 2013 in Nautical Drive, Henderson. This is in an industrial area.
Nautical Drive is a two-way single carriageway running north‑south. It was not centrally marked and the speed limit was 50 km per hour. Whilst being a two-way single carriageway Nautical Drive is wider than standard roads because it is in an industrial area. The road was about 9.9 m wide. The northern side of Nautical Drive intersects by way of a T-intersection with Quill Way. Approximately 500 m south of the Nautical Drive/Quill Way intersection, Nautical Drive intersects with Stuart Drive. Just north of the midpoint between Quill Way and Stuart Drive is another intersection with Welding Pass Road. Both Stuart Drive and Welding Pass Road intersect with Nautical Drive from the east.
The evidence of Sergeant David Magorian, the major crash investigator who attended the scene, makes it clear that the motorcycle was on the wrong side of the road at the time of the collision and that it struck the plaintiff's truck almost directly in the centre of the vehicle.[5]
[5] ts 269.
The damage to the front of the truck was extensive.
After the collision the front of the truck was 92 m from the Quill Way intersection, 3.65 m from the eastern side of the road and 4.9 m from the western side.[6] There were three or four vehicles parked on the eastern side of the road immediately behind the truck's final position. This is consistent with the account given by Mr Malloch.[7]
[6] Exhibit 24.
[7] See [32] below.
There were no markings on the road consistent with the motorcycle applying its brakes. There was a short gouge mark on the road caused by the motorcycle at the point of impact.
There was some evidence of lock wheel braking associated with the truck particularly from the front left tyre of the truck and maybe on the right-hand side as well, albeit this was not extensive or significant. This is consistent with the truck travelling very slowly at the time of impact.
Sergeant Magorian also gave evidence that CCTV footage was obtained from two businesses in Nautical Drive. This was used to make some calculations about the speed of the motorcycle. Those calculations suggest that the motorcycle was travelling at 99 - 111 km per hour.[8] However, these calculations have significant limitations given the CCTV footage was of relatively poor quality and low frame rate. Accordingly, it was accepted at trial that 'at best' they provide nothing more than an indication of speed.[9]
[8] Exhibit 25.
[9] ts 279.
The only evidence of what occurred came from Mr Malloch, the driver of the Cleanaway truck, and two men who were in a BMW motor vehicle that was travelling north on Nautical Drive at the time of the collision. These men were Glenn Rodgers and Francesco Demarte. Mr Malloch's account was contained in his police interview conducted on the day of the collision. This interview was tendered by consent.
Mr Malloch, the driver of the Cleanaway truck had started work at about 4.30 am and was on his way from the Cockburn tip to the Matrix building in Nautical Drive. This was a journey that he undertook regularly as part of his duties.
He had turned left from Quill Way into Nautical Drive. There were vehicles on the left-hand side of the road ahead of him, one of which was a four-wheel drive. Unusually, there were no vehicles parked on the right‑hand side of the road in this area. He estimated he was travelling at about 20 km per hour[10] when he took the corner. He did not increase his speed significantly once in Nautical Drive because he was anticipating turning left into the Matrix complex. Further, he continued to go slowly because there were two vehicles travelling north towards Quill Way and he would need to move slightly to the right to negotiate the vehicles parked on the roadway in front of him.
[10] Exhibit 20 at 11:43.
After the two vehicles had passed him, he manoeuvred the truck slightly towards the centre of the road to move around the four-wheel drive parked on the left side of the roadway.
It was at this point that he saw the headlight of the motorcycle. He could also hear the motorcycle, saying it sounded as if the rider was 'thrashing the bejesus out of it'.[11] Mr Malloch went further and said that he did not know how the driver of the motorcycle was going to be able to negotiate the corner at the intersection with Quill Way. He estimated that the corner was only about 60 m behind him. Whilst neither statement involves a specific estimate of speed both statements suggest significant speed.
[11] Exhibit 20 at 15:30.
When Mr Malloch first saw the motorcycle, he believed it was 'midway back to the other street'.[12] It is unclear whether Mr Malloch meant Welding Pass Road or Stuart Drive.
[12] Exhibit 20 at 13:07.
In any event Mr Malloch estimated that the motorcycle struck his truck within five seconds of him seeing it. He had time to think that the motorcycle was 'playing chicken' with the truck: 'people did this every now and then'.[13] There was ample room for the motorcycle to move back into its own lane and pass him, but it did not do so.
[13] Exhibit 20 at 13:50.
It did not appear to him that there was any change in the speed of the motorcycle before it struck his truck. He did not hear the motorcycle getting faster or slower and it did not appear to be moving through the gears.
There was nothing he could do: moving left or right or stopping or even going in reverse would have made no difference. In Mr Malloch's opinion the motorcycle would still have struck the truck even if he had been to the left of the roadway, albeit the point of impact would have been more to the right, in line with the driver's position.
Mr Malloch's evidence is that from the time he turned into Nautical Drive he was moving slowly - no more than 20 km per hour and at the time of collision about 5 or 10 km per hour. The motorcycle was going fast and travelled the distance between them very quickly. There were five seconds from the time he saw the vehicle to the point of collision. The motorcycle did not change direction and did not brake or slow down. There was ample room to move to the right of the truck (and onto the correct side of the road for the motorcycle's direction of travel).
Mr Rodgers and Mr Demarte were co-workers who together with another colleague were in Nautical Drive that day. The men worked together at 20 Stuart Drive, Henderson.[14] They were together in a BMW driven by Mr Rodgers. Mr Demarte was the rear driver's side passenger.
[14] Exhibit 1.1.
Both Mr Rodgers and Mr Demarte were motorcycle enthusiasts. Mr Rodgers had previously owned a motorcycle and had ridden his father's Harley Davidson 'a lot'.[15] Mr Demarte was a long-term Harley Davidson owner himself.[16]
[15] ts 304.
[16] ts 324 - ts 325.
Mr Rodgers' evidence was that shortly after 1.00 pm he drove his father's BMW from the driveway of his workplace west along Stuart Drive. Before pulling onto Stuart Drive, he stopped to check for oncoming traffic. He saw the motorcycle approximately 40 m to the east. The motorbike was 'obnoxiously loud'.[17] It was weaving or swerving from one side of the road to the other. It was travelling very slowly and at times the rider appeared to be trying to keep his balance. Mr Rodgers' impression was that the rider was looking for an address.
[17] ts 294.
Mr Rodgers then pulled onto Stuart Drive. He drove west and eventually turned right into Nautical Drive. By this time the motorcycle had almost caught up to the BMW. The motorcycle did catch up to the BMW and in fact pulled alongside it. The BMW was travelling at about 40 km per hour and was in the vicinity of the first driveway to the Civmec premises.[18]
[18] Exhibit 1.1.
The motorcycle travelled alongside the BMW for about 10 seconds. During this time the rider stared intently into the BMW. Mr Rodgers felt confronted by the look. He described it as 'quite an aggressive look'.[19] The look was such that he did not follow through on his intention to ask, 'are you okay, are you lost?'[20]
[19] ts 295.
[20] ts 295.
Mr Rodgers had a good opportunity to observe the rider. It did not appear to him that the rider was having any difficulty controlling the motorcycle.[21] He also recalled that the rider was wearing a dirty 'fluoro jacket'.[22]
[21] ts 310.
[22] ts 303.
The motorcyclist then 'dropped' two gears, before accelerating off at speed. He believes that the motorcycle had accelerated to 80 or 90 km an hour, but not as fast as 100 km an hour.[23]
[23] ts 298.
He recalled that the driver was still staring at him when he dropped the gears but then looked forward as he accelerated away.[24]
[24] ts 312.
As he watched the motorcycle accelerate, he thought 'that's cool'.[25] It was as he watched the motorcycle accelerate away that he saw the plaintiff's truck. He had not noticed it before this but conceded that his field of vision was limited to watching the motorcycle and the road immediately in front of him.
[25] ts 297.
Mr Rodgers saw the collision. He had a 'split‑second' thought that the motorcyclist was playing chicken with the truck but then the collision occurred.[26] He did not see the motorcycle brake or deviate or move towards the left‑hand side of the road prior to impact. There was nothing preventing the rider from moving back onto the left-hand side of the road after he had passed his BMW.[27]
[26] ts 297.
[27] ts 319.
In his opinion:[28]
... it was probably 100-odd metres between the time that we'd realised he was going way too fast for any action to be done and the - the collision.
…
from the time he was alongside my car to the time of the collision would have been 10 to 15 seconds.
[28] ts 297, ts 314.
Mr Rodgers admitted he had posted a comment on Perthstreetbikes.com in which he said:[29]
G'day members this is my 1st post and I found this thread as I searched on Google for the bike crash in Henderson. It was 1pm and I left Weir Oil and Gas to get some lunch. as I turned up Nautical Drive towards the lunch bar, A red Harley came up beside me. The Rider who was not wearing a helmet and in thongs, glared at me and fellow workers in the car, as he dropped two gears and shot off into an oncoming truck. Myself and people in my car were 50 metres away from impact …
[29] Exhibit 15.
Mr Rodgers' evidence is that the motorcycle was being controlled well by the rider both in Stuart Drive and subsequently in Nautical Drive. Further, he had the clear impression that the rider was looking for something whilst in Stuart Drive. In fact, Mr Rodgers' evidence was that he initially thought the rider had ridden alongside them in Nautical Drive, so he could ask for information. It is also clear that events unfolded very quickly albeit there was time for the motorcyclist to avoid the collision with the truck but appeared to take no steps to do so.
Mr Demarte gave a very similar account to that of Mr Rodgers. He too recalled seeing the motorcycle in Stuart Drive doing 'S‑turns' as if 'looking for an address or a factory'.[30] He described the motorcycle having:[31]
a very, very slow manner … just like as if you're looking for a letterbox number or something like that.
[30] ts 323.
[31] ts 324.
He could also see at this point that the rider was wearing a high visibility jacket.[32]
[32] ts 324.
His recollection is that the motorcycle turned the corner into Nautical Drive beside the BMW and was alongside them once they were in Nautical Drive. He estimated their speed as they turned this corner to be about 10 km an hour. He then described the rider looking into the car saying:[33]
he looked inside the car and he just - it wasn't an evil look. It was just like not - not a happy look, you know what I mean? It was just a stare.
[33] ts 325.
When the motorcycle was beside the BMW he noticed that the rider had no helmet, and was wearing thongs, blue pants and hi-vis jacket.[34]
[34] ts 326.
The motorcycle however was very loud, and he recalls hearing the rider drop down two gears. Mr Demarte, a long time Harley Davidson owner himself, formed the impression that the rider had dropped down too many gears, before he 'opened it up' and accelerated away. He described what happened next this way:[35]
And he just opened it up. And we just kept an eye on it, and Glen kept on cruising towards the road that we had to take. And then I remember the back of his jacket just getting all puffed up, air must have been getting into it. And I just said to myself, 'Is this guy going to move back into his own lane?' And in the distance, then I seen a truck come around a corner. And as the truck came around the corner, he was just - you know, it's a big truck. He was just crawling around there, and he was probably doing 10 ks, maybe the most. 10, 15. And then, I seen the bike picking up more speed, because he was going through all his gears, all right.
…..
He probably was in third gear, and he was still going. And when I seen the truck coming up, and I said, 'Is this bloke going to get back into his own lane, because he's getting very close to the truck?' And then I said - first my reaction was, 'He knows the truck driver. He's going to play games like chicken and then move over to your left lane.' But then I worked out the speed that he was doing, and the distance between him and the truck was getting closer and closer. And that's when I says, 'Well, if he doesn't move over now, even if he does try and move, he's not going to make it.' Because he was probably doing 100 and something ks an hour.
So for him to swerve out of the truck at the speed, and that distance, he would have lost it anyway. And then he just went straight into the front of the truck, that's when I've seen an explosion go up.
[35] ts 328, ts 329.
Mr Demarte also provided, when asked, various estimates. He estimated:
1.the motorcyclist reached speeds of between 80 to 100, 105 or 110 km an hour;[36]
2.it was a distance of 400 m from the point where the motorcycle accelerated away to the point of impact;[37]
3.that 20 seconds elapsed from the point when the motorcycle accelerated away to the point of impact;[38]
4.the 15 - 20 seconds elapsed time from when he saw the truck coming around the corner to the point of impact; and[39]
5.the motorcycle was 200 m from the point of impact when the truck came around the corner.[40]
[36] ts 331.
[37] ts 330.
[38] ts 330.
[39] ts 330.
[40] ts 330.
These estimates do not, as a matter of commonsense, sit comfortably together nor do they sit comfortably with what was said about the total length of the road[41] and the resting position of the truck after the collision.
[41] The only evidence as to the distance between Quill Way and Stuart Drive is the estimate given by Mr Demarte that it was 500 m. See ts 336.
Irrespective of any estimates Mr Demarte did not see the motorcycle deviate or brake in any way prior to the impact. In fact, when asked about whether he had seen the motorcyclist deviate, he said:[42]
No, that - that 's - that's what I was waiting for. That's - that's what I - but when I seen how close he was to the truck at that time, I says, 'What ‑ you know - like - what's happening,' you know. First thing my mind says, 'He's got no helmet. He's got no glasses on. He maybe had water in his eyes.' That's what I was thinking that he couldn't see but even then you would have hit the brakes and moved over.
[42] ts 331.
Findings on factual matters
Mr Goncalves was riding his Harley Davidson motorcycle along Stuart and Nautical Drives, Henderson. He was wearing only thongs, street clothes and a hi-vis jacket. He did not have sunglasses or a helmet.
He was, at all times, in full control of the motorcycle. He was able to control it when riding very, very slowly and to maintain a speed and position when riding alongside the BMW while at the same time looking into that vehicle for a short but sustained period.
At the time of, or shortly after entering Nautical Drive he rode alongside the BMW for a short time before dropping two gears and accelerating off at speed. His speed caused his jacket to puff up.
Mr Goncalves was therefore riding fast (likely at about 80 - 100 km per hour) on the wrong side of the road when he struck Mr Malloch's truck. He struck the centre of the truck which was towards the centre of the road but still within its lane. There was time for him to move onto the left-hand side of the road before he collided with the truck. There was no impediment to him doing so. He did not change his direction. He did not brake, or overtly appear to do anything to avoid the collision.
I also find that Mr Goncalves was already in Nautical Drive on the incorrect side of the road when Mr Malloch turned into that street. Mr Malloch's truck was partly obscured when he first turned into Nautical Drive both because there were:
1.two vehicles (one of which was a four-wheel drive) parked on the left of the road; and
2.two vehicles that passed his truck as they drove north to Quill Way.
I cannot and do not make specific findings as to the speeds, distances and times involved. The difficulties involved in placing reliance on estimates of speed, time and distance given by people years after witnessing a dynamic event that occurred quickly and without notice, are well known to the law. The evidence of Mr Demarte referred to in [58] above illustrates those problems. In any event, I do not consider that it is necessary for me to make these findings to determine the issues in this case. This is because knowing precise speeds, distances and times do not alter any of the matters or conclusions referred to in [61] to [65] above.
Finding as to Mr Goncalves' conduct including whether he was intending to commit suicide
First, it is important to note that there was no evidence before me about Mr Goncalves. There was no evidence about his appearance (other than his dress), his state of mind or his personal circumstances ie his address, his occupation, his family situation, his drug use or his employment, if any. There was no evidence as to why he was in this industrial area in Henderson, how long he had been there, where he had been or what he had been doing before he was seen by Mr Rodgers or when he had set out on this journey.
An industrial area is not a place one associates with ready opportunities to commit suicide.
Mr Goncalves was riding slowly and in control of the motorcycle when in Stuart Drive. He was not behaving in a reckless or erratic fashion. To the contrary it appeared to others that he was looking for an address or a place or perhaps even a person. His conduct in riding alongside the BMW and staring into the vehicle is not inconsistent with this.
Frustration at not finding what or who he was looking for is a reasonable explanation for his accelerating away from the BMW at speed.
I am not satisfied that at the time Mr Goncalves overtook the BMW that the plaintiff's truck was in Nautical Drive. Further there is no suggestion Mr Goncalves was aware that the truck was in Nautical Drive. To the contrary the evidence of Mr Rodgers is that Mr Goncalves was looking at him when he dropped his gears. Likewise, Mr Demarte saw the truck turning into Nautical Drive as he watched the motorcycle accelerate away. It cannot therefore be reasonably inferred that at the time Mr Goncalves accelerated away he was aware that the plaintiff's truck was in Nautical Drive. It cannot be said then that Mr Goncalves' decision to accelerate at speed whilst on the incorrect side of the road was influenced by the presence of the truck and therefore evidence of suicidal intent.
Further, as I have already identified in [70] above there are other explanations, consistent with the evidence, for his accelerating away from the BMW. Another explanation suggested by the evidence of Mr Rodgers[43] is that Mr Goncalves was trying to impress those in the BMW.
[43] ts 297.
These other explanations are also consistent with the failure to wear a helmet, boots or sunglasses. Mr Goncalves' attire speaks of someone who has jumped on his motorcycle to run a quick errand or to find someone or something that he needed near to home or who enjoyed riding his motorcycle and did so in a way that drew attention.
His failure to see the plaintiff's truck after he accelerated away from the BMW may be reasonably explained by the lack of eyewear to protect his eyes from the rapid increase in speed and the forces associated with that. Mr Demarte, an experienced motorcycle rider, immediately thought Mr Goncalves' vision was impaired because of watering brought on by the rapid increase in speed.
In addition, the plaintiff's truck was, in any event, obscured, making an assessment of its position and movement more challenging.
Further it is likely that before and at the time Mr Goncalves' overtook the BMW there were vehicles in the western lane of Nautical Drive further north of the BMW.
I acknowledge that these matters do not provide a full explanation for Mr Goncalves remaining on the incorrect side of the road nor for failing to reduce his speed. However, it is not always possible to provide explanations that fit all the known facts. This is particularly true in this case given there is no evidence from or about Mr Goncalves.
There are then two competing factual inferences to be drawn:
1.The deceased, whether under the influence of methylamphetamine or not, deliberately rode into the path of the truck intending to collide with it.
2.The deceased collided with the truck negligently, either because he did not see it in time to avoid it or otherwise misjudged his speed and direction or some combination of these.
Where the standard of proof is on the balance of probabilities (irrespective of the meaning given to those words)[44] the question is which inference is more likely.
[44] In argument both the plaintiff and the defendant made submissions about the standard of proof. See defendant's amended outline of submissions dated 21 October 2021, pars 8 - 13; plaintiff's closing submissions dated 6 October 2021, pars 65 - 70; ts 563, ts 585 - ts 588.
For the reasons set out in [67] - [77] above it is more likely that the collision was the result of negligence and not an act of suicide. This conclusion is aided by the evidential principle that in the absence of clear evidence to the contrary (burden on defendant), an intention on the part of an insured to cause damage is improbable: See Vero Insurance Ltd v Rail Corporation New South Wales.[45]
[45] Vero Insurance Ltd v Rail Corporation New South Wales [2013] NSWCA 372.
Was the deceased under the influence of methylamphetamine?
It was agreed that Mr Goncalves had traces of methylamphetamine and amphetamine in his post-mortem blood sample. The ChemCentre Report under the hand of Hayley Vickers revealed that the aortic preserved blood collected on the 4 November 2013 contained 0.04 milligrams per litre of methylamphetamine and 0.01 milligrams per litre of amphetamine.[46]
[46] Exhibit 5.
Both the plaintiff and the defendant called expert evidence regarding the significance of these results.
The plaintiff called Dr John Lewis, a toxicologist, and the defendant called Dr Michael David Robertson, a consulting pharmacologist, forensic toxicologist and chemist.
The relevant fields of expertise are similar but not identical.
Dr Lewis' speciality is drug analysis, that is 'measuring the amounts, the excretion and the metabolism of drugs in bodily fluids'.[47] He gave evidence about matters effecting the analysis of post-mortem blood and the reliability of any results.
[47] ts 400.
Dr Robertson also gave evidence about the analysis of post‑mortem blood, but his additional qualifications and fields of research enabled him to give evidence regarding:
1.the properties of methylamphetamine and how it can affect the human body;
2.the factors that impact the effect of methylamphetamine on an individual; and
3.the use of post-mortem toxicological results in determination of the effect of methylamphetamine on an individual in life particularly as it relates to driving.
Dr Robertson agreed in principle with the matters about which Dr Lewis gave evidence, albeit he did not agree with the approach Dr Lewis took to reach his conclusions. Further, on factual matters touching the areas referred to at points 1 - 3 in [86] above Dr Robertson's evidence was not meaningfully challenged. The plaintiff however did challenge the ultimate opinions given by Dr Robertson. I will therefore set out the uncontroversial expert evidence before turning to the disputed opinions.
Expert evidence
It was common ground that the most relevant finding in the ChemCentre report was the methylamphetamine concentration. The amphetamine detected in the post-mortem blood sample could be explained by any one of the following:
1.It was produced as the body broke down methylamphetamine that had been consumed ie it was a metabolite of the methylamphetamine.
2.It was residue from some prior use of methylamphetamine.
3.It was an impurity in the methylamphetamine that had been consumed.
4.It was the result of using some form of amphetamine eg dexamphetamine.
Dr Lewis opined that it was more likely a metabolite. The quantity was not meaningful but for its ability to assist him to calculate the time of the ingestion of the methylamphetamine.[48] Dr Robertson did not express a preference save to say that it did not affect any of his opinions in this case.
[48] ts 403, ts 444.
Both Dr Lewis and Dr Robertson acknowledged that the results in the ChemCentre report did not necessarily reflect the concentration of methylamphetamine in Mr Goncalves' blood at the time of the collision. A phenomenon known as post-mortem redistribution needed to be considered because the aortic blood was collected four days after Mr Goncalves' death.
Dr Lewis explained that even after death drugs remain in tissues and organs like the heart and stomach. Although the blood is not circulating, the drugs diffuse from these organs and tissues into the nearby blood. Consequently, samples of blood taken from the heart like aortic blood could have higher drug concentrations than existed at the time of death. Post-mortem redistribution was particularly noticeable in cases involving methylamphetamine.[49]
[49] ts 419 - ts 420.
Dr Lewis then gave evidence of calculations he had done based on data in a published work by a person referred to as McIntyre who had done research on post-mortem redistribution of methylamphetamine. Dr Lewis' calculations suggested that Mr Goncalves' drug concentrations prior to death could have been as low as 0.026 milligrams per litre of methylamphetamine and 0.006 of amphetamine.[50]
[50] ts 420 - ts 428.
Dr Robertson acknowledged that post-mortem redistribution occurred and accepted generally that:
1.blood collected closer to the heart was more likely to be affected by post-mortem redistribution;[51] and
2.the interval between death and the collection of the blood sample increased the likelihood that there had been post‑mortem redistribution.[52]
[51] ts 480.
[52] ts 499 - ts 500.
He, however, made it clear that post‑mortem redistribution did not invariably occur, and one could never know if it had in fact occurred in any given case. The number of variables involved, meant that Dr Robertson found it difficult to place any weight on the calculations done by Dr Lewis.[53] Despite these caveats, Dr Robertson acknowledged that it was 'more likely than not' that the drug concentrations in the ChemCentre report were higher than at the time of death.[54]
[53] ts 505.
[54] ts 500.
In any event, Dr Robertson did not place any significant weight on the precise figure ascribed to the concentration of the drug. Its only significance to him was that it allowed him to classify the drug levels as low, medium or high.[55] In this case the concentrations of methylamphetamine and amphetamine, as recorded in the ChemCentre report, were low.[56]
[55] ts 462.
[56] ts 499.
Both Dr Lewis and Dr Robertson also provided an opinion about the time any methylamphetamine/amphetamine was ingested by Mr Goncalves.
In Dr Lewis' opinion Mr Goncalves had ingested the methylamphetamine at least 10 hours before his death.[57] Dr Lewis' conclusion was based on calculations involving the relative concentrations of methylamphetamine and amphetamine and applying research published by 'Cook and Others'.[58]
[57] ts 419.
[58] ts 407 - ts 419; Exhibits 27 and 28.
Dr Robertson accepted that Dr Lewis' methodology was one way of approximating the time of ingestion of the methylamphetamine but this was only if all the parameters of the studies were present in this case. This could not be known. In his opinion Mr Goncalves ingested the methylamphetamine within 18 to 24 hours of his death albeit it was possible that the drug was consumed in the 'day or two prior to the crash'.[59]
Dr Robertson's opinions
[59] ts 499.
Dr Robertson's evidence made it clear that in order to understand the affect or influence, if any, of a drug on a person's driving and/or state of mind it was necessary to know:
1.the type of drug involved;
2.the possible effects the drug can have ie whether it is a stimulant, a depressant, an hallucinogen or a psychedelic;
3.the concentration of the drug in the blood ie whether it is low, moderate or high;
4.the time the drug was ingested;
5.the characteristics of the individual under consideration including knowing the person's:
a.patterns of use or tolerance of the drug, ie someone who uses a drug regularly will have little effect from a particular concentration as compared to someone who uses the drug infrequently but has the same blood concentration;
b.size; and
c.as much other information about them and their performance/behaviour at the relevant time as is available.[60]
[60] ts 467, ts 502 - ts 503.
Dr Robertson explained that methylamphetamine is a stimulant that produces a 'fairly profound'[61] stimulation that can manifest in risk taking behaviours. This is experienced in the first four to six hours after ingestion although studies have shown the stimulation may last for up to 10 hours. A transition from that euphoric state to sedation then occurs, albeit there is no firm line between those effects. The same blood concentration in two different people can produce different effects: one may be sound asleep and the other 'bouncing off the walls'.[62]
[61] ts 463.
[62] ts 463.
In Dr Robertson's opinion the concentration of methylamphetamine or amphetamine in the blood was not a reliable indicator of the effect of the drug on an individual. The research, consistent with his experience, suggested that, in fact, there was a very poor correlation between post‑mortem drug concentrations of methylamphetamine and what it informed about human behaviour. The only exception to this was if there was a 'massive amount' of the drug present, then it was reasonable to say that the person was 'under the influence of the drug'. But if the concentrations of methylamphetamine are low to moderate there is uncertainty, in the absence of other evidence, of what a person may be experiencing.[63] This was why Dr Robertson did not place any emphasis on the specific concentration of the drug in the body other than to determine whether it is low, moderate or high.[64]
[63] ts 481.
[64] ts 462.
Dr Robertson made it clear that there[65]
is really no hard and fast number that you can state in all people or in most people, they are impaired above this number and not impaired below that number.
[65] ts 465.
Whilst acknowledging that overall studies showed that blood concentration levels for methylamphetamine were a poor indicator of performance or impairment, he observed that a lot of the studies showed that the number of individuals described as impaired, often had blood concentrations higher than 0.05 mg/l. However, he said impairment began to be seen in cases where the blood concentration was at 0.02 mg/l albeit the numbers were greater for levels more than 0.05 mg/l.[66]
[66] ts 506.
He commented incidentally that it was these studies that compelled him to support 'per-se laws' with respect to drug driving legislation; that is laws that deem a person to be under the influence when any amount of methylamphetamine is found in their body.[67]
[67] ts 465.
Dr Robertson acknowledged that if the time of ingestion was known, then one could, with greater confidence, say whether a person was affected by the methylamphetamine because its impact is largely felt in the four to six hours after ingestion. Dr Robertson accepted that if the accident occurred outside the stimulating window (ie four to six hours) it was 'certainly possible' that the methylamphetamine may have had no effect. In the alternative, the effect may have been a level of fatigue but there was, he said, no evidence of any fatigue in this case.[68]
[68] ts 498, ts 503.
Dr Robertson emphasised that to properly determine the effects of methylamphetamine on a person as much information as possible about the individual involved was necessary including information about them (ie their size, their history of drug use, their drug taking patterns etc) and their performance or behaviour. The circumstances of a crash could assist in assessing these matters ie the observations of the rider both before and after the crash and the circumstances of the crash.[69] This was the most important information.
[69] ts 467.
Dr Robertson opinions about this case were expressed in this exchange:[70]
Counsel:Having regard to the factual matters such as not - not wearing a helmet and not wearing appropriate footwear to the factual analysis of the driving that I have described and also your understanding as we have developed in your evidence about the level of methylamphetamine as detected post-mortem can you please tell the court if you have a view about the effect of methylamphetamine on this motor cyclist at the time of this incident …
Robertson: well, when I assume that the driving behaviour of this motor cyclist was not typical, that is he did not typically drive in this manner --- when I look at the drug present in his system, and the type of effects that that drug can cause, namely risk taking, increased in confidence and so on and so forth, the driving behaviour, particularly the acceleration, the absence of a helmet and so on and so forth, and staying on the incorrect side of the road, are all consistent with the stimulating effects of methylamphetamine. The concentration itself is not high, but it still has the ability to result in stimulation of an individual. Those two factors together, make it more likely than not, that this person was under the influence of methylamphetamine prior to and leading up to - to the crash.
[70] ts 493, ts 494.
In cross-examination Dr Robertson acknowledged that there were circumstances where the driving behaviour of Mr Goncalves may be unconnected to the ingestion of methylamphetamine and that his speed may have limited opportunities to react to the presence of the truck. In this regards he said:[71]
If - if we accept that there was indeed no risk‑taking behaviour or no unusual risk‑taking behaviour then that's certainly a possibility. There certainly doesn't appear to be any fatigue‑related aspects based on either scenario that's been provided to me. There seems to be control of the motor vehicle or motorcycle and that that is a premeditated control. You mention he didn't lose control or he was in control of the motorcycle. Methylamphetamine generally speaking doesn't affect your ability to control the vehicle. It's more about the decisions that you make whilst riding the vehicle. And so therefore I wouldn't necessarily, even if profoundly affected, I wouldn't expect them to appear to be a loss of control in that sense. It's more that they'd lose - that they - they lose concentration or they don't see things. That's a common - based on the scenario you've just given me, it's possible he didn't see the truck. And one of the common things that we see with methylamphetamine is an absence of seeing stop signs and red lights and those sorts of things. But I do accept that if his behaviour is deemed to be perhaps normal then it may be that the methylamphetamine was having no effect.
….
if there are factors that mitigate the sorts of things that I have assumed, that is that he [Mr Goncalves] had the opportunity to see the truck and he was driving if I use the phrase erratically or at least in a way that exhibited more confidence and risk taking than might otherwise be explained then yes, it's possible that he was unable to react appropriately to the - to the - to the developing scenario.
Conclusion - under the influence
[71] ts 498.
The concentrations of methylamphetamine and amphetamine found in Mr Goncalves' aorta preserved blood did not accurately reflect the concentration of those drugs in his system at the time of the collision. They were likely lower (perhaps substantially lower) but were in any event low. Further they were lower than the levels where impairment was more likely: See [103] above.
Both experts estimate the methylamphetamine was ingested outside the stimulating window.
There is no evidence of behaviours associated with fatigue.
There is no information about Mr Goncalves at all let alone about his size or history or pattern of methylamphetamine/amphetamine use or his typical or usual riding behaviours.
The only observations available of Mr Goncalves' behaviour is restricted to his riding in Stuart Drive and Nautical Drive. This was behaviour over a short distance and for a short time. There are, as referred to in [69] - [77] above, other reasonable explanations for his behaviour including his speed and his failure to see the truck.
Given these matters, I am not satisfied on the balance of probabilities that the methylamphetamine was influencing Mr Goncalves' behaviour.
In coming to this conclusion, I have rejected Dr Robertson's opinion that it was more likely than not that Mr Goncalves was under the influence of methylamphetamine. I have done so principally because:
1.The assumption that Mr Goncalves did not typically ride in this way has not been made out.
2.Dr Robertson's conclusions were based on very limited observations that were devoid of important contextual information about Mr Goncalves most notably Mr Goncalves' tolerance or pattern of use of methylamphetamine/amphetamine. This was information Dr Robertson considered important.
3.Dr Robertson made no allowances for the limited period available for observations to be made about Mr Goncalves' behaviour. Nor did he give any consideration to other reasonable inferences available for Mr Goncalves' observable conduct before concluding it was evidence of 'risk taking behaviour' or of 'increased confidence'.
Does the policy cover the deceased's liability to the plaintiff?
It is for the plaintiff to establish that the loss and damage to its truck was caused by an accident. The defendant does not concede that the collision that occurred was an accident within the terms of this policy.
It was not in dispute that the Harley policy did not contain a definition of 'accident' or any other words that would qualify or limit the ordinary meaning of that word. Further there was no reason to suggest, as a matter of contractual construction, that the parties intended anything other than the ordinary meaning of 'accident' to apply: See [13] above.
The defendant, however, submits if the policy concerns property damage and the damage is caused by risky and deliberate behaviour where there is no intervening outside agency involved or any unintentional or unforeseeable outcome, the policy will not respond.[72] This submission appears to suggest that there is an objective element to the determination of what constitutes an accident.
[72] Defendant's supplementary submissions upon accident, par 8.
Given the existence of the express limitation and exclusion clauses it is clear that when this policy is read as a whole the parties intended that the insuring provisions be read broadly and then refined the scope of the cover as provided by those limitations and exclusions. There is, in my view then, no reason to depart from the plain and ordinary meaning of the term accident and that involves an assessment of the insured person's intention. As Justice Samuels observed in National & General Insurance Co Ltd v Chick :[73]
I should add, perhaps, although it is scarcely necessary to do so, that the act as negligence does not deprive a happening of the character of an accident. It is not to the point therefore that it was in fact inevitable that the revolver would fire when the deceased pressed the trigger for the third time, or that he may have been careless in checking the position of the cartridge, or in making an assumption about the working of the weapon which his knowledge did not justify; or, indeed, that a prudent person would not have handled a loaded firearm in this fashion. Rather it is necessary first to ascertain the cause of the injury and then to decide whether that act was, according to the ordinary common sense meaning of the word, an accident. And that entails an inquiry into what the deceased himself intended, believed or undertook. In my opinion the injury here was caused by accidental means.
[73] National & General Insurance Co Ltd v Chick [1984] 2 NSWLR 86 [105] - [106].
Given this and given my view of the scope of the policy and my finding that this was not a suicide attempt, I am satisfied that this was an accident and the policy responds.
I must now consider whether any of the exemptions apply.
Does the deliberate act exclusion apply?
The defendant submits that this was a case of suicide or that at the very least Mr Goncalves had a reckless disregard to the preservation of his life and that therefore the deliberate act exclusion applies. For the reasons I have already articulated I am not satisfied that this was a case of suicide and accordingly the defendant's submission in respect of this must fail.
Further I am not satisfied that Mr Goncalves had a reckless disregard to the preservation of his life. My findings at [67] - [80] above identify the other reasonable inferences which may explain the collision. These do not demonstrate any indifference or disregard for self-preservation.
It follows then that I am not satisfied that the defendant has established on the balance of probabilities that the deliberate act exclusion applies.
Does the 'under the influence' exclusion apply?
Consistent with my findings at [109] - [115] above I am not satisfied on the balance of probabilities that Mr Goncalves was under the influence of methylamphetamine as that term is used in the Harley policy. The Harley policy does not define what is meant by the term 'under the influence of drugs'. The term in my view imports at least some need for evidence that the drug was at a level capable of effecting behaviour.
In this regard I note that the starting point for the exercise of construction, is what the words of the policy convey, as a matter of contemporary language read in the context of the whole of the policy, to a reasonable non-expert in this country.[74]
[74] Australian Casualty Co Ltd v Federico (525).
A reasonable party[75] to this contract would not have understood these words to have disentitled the insured to cover merely because a drug was present. This would mean that even the presence of prescribed medications would disentitle an insured from cover under the policy. This could not, objectively, have been the common intention of the parties.
[75] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd(2004) 219 CLR 165.
Accordingly, I am not satisfied that the defendant has established on the balance of probabilities that the 'under the influence' exclusion applies.
However, even if I am wrong about this then I am satisfied on the balance of probabilities that any influence that the drugs may have had on Mr Goncalves could not reasonably be regarded as causing or contributing to the collision.[76] I have reached this decision given my findings at [67] - [80] and [109] - [115] above.
Does the reasonable precautions exclusion apply?
[76] Section 54 Insurance Contracts Act 1984.
Given my finding that Mr Goncalves did not commit suicide I must consider whether there is any other aspect of his behaviour that would invoke this exclusion.
In construing the term 'reasonable precautions' courts have been guided by the following passage from the judgment of Lord Diplock in Fraser v B N Furman (Productions) Ltd wherein he said:[77]
'Reasonable' does not mean reasonable as between the employer and the employee. It means reasonable as between the insured and the insurer having regard to the commercial purpose of the contract, which is inter alia to indemnify the insured against liability for his (the insured's) personal negligence … Obviously the condition cannot mean that the insured must take measures to avert dangers which he does not himself foresee, although the hypothetical reasonably careful employer would have foreseen them. That would be repugnant to the commercial purpose of the contract, for failure to foresee danger is one of the commonest grounds of liability in negligence. What, in my view, is reasonable, as between the insured and the insurer, without being repugnant to the commercial object of the contract, is that the insured should not deliberately court a danger, the existence of which he recognises, by refraining from taking any measures to avert it … What, in my judgment, is reasonable as between the insured and the insurer, without being repugnant to the commercial purpose of the contract, is that the insured, where he does recognise a danger should not deliberately court it by taking measures which he himself knows are inadequate to avert it. In other words, it is not enough that the employer's omission to take any particular precautions to avoid accidents should be negligent; it must at least reckless that is to say, made with actual recognition by the insured himself that a danger exists, and not caring whether or not it is averted. The purpose of the condition is to ensure that the insured will not, because he is covered against loss by the policy, refrain from taking precautions which he knows ought to be taken …
[77] Fraser v B N Furman (Productions) Ltd [1967] 3 All ER 57 [60].
The defendant accepts that what is required is a deliberate decision by Mr Goncalves to court danger. Despite making references to authorities which suggest that there is an objective element to determining this question, the defendant ultimately conceded that the test was a subjective one meaning it is to be assessed by reference to the mindset of the insured themselves as opposed to analysing the preventative action which would have been taken by a reasonable person.
In this regard the defendant submitted that the irresistible inference to be drawn from all the evidence was that the deceased clearly intended to court a danger of the risk of a collision with another vehicle and as such failed to take reasonable precautions in a sense that rises well above mere negligence. The speed, the distance covered and the unwavering direct line into the centre of the truck bore a quality that fell within a failure to take reasonable precautions. Further the defendant submitted that the only other explanation, subjectively or objectively, for such conduct is that Mr Goncalves was under the influence of methylamphetamines.
I do not agree. As the factual finding I have made in [69] - [76] above reveal there are other reasonable explanations for the deceased's conduct in this case that do not involve any deliberate courting of danger. Mr Goncalves had a legitimate reason for being on the right‑hand side of the road: he was overtaking the BMW. There is no evidence that at the time this manoeuvre was executed the plaintiff's vehicle had entered the street or that it was unsafe or risky for Mr Goncalves to execute this manoeuvre. The fact that he accelerated at speed again does not in and of itself suggest that he was deliberately courting danger. His failure to move back to the left-hand side of the road can be explained as the combined effect of his speed and the lack of eyewear. Further, given that I am not satisfied that his behaviour is explained or indicative of him being under the influence of methylamphetamine or in any event if under the influence of methylamphetamine that this was in any way causative of his behaviour then I cannot be satisfied that on any assessment of his conduct he failed to take reasonable precautions. Accordingly, the defendant has failed to prove that the 'reasonable precautions' exclusion applies.
Plaintiff's alternate case - doctrine of election
The plaintiff pleaded and pursued at trial an alternate case based on the doctrine of election. The effect of the plaintiff's alternate case is that it would extinguish the defendant's rights to deny Cleanaway's claim by relying on exclusions.
The doctrine of election applies where there are concurrent, but inconsistent legal rights. Neither right may be enjoyed without the extinction of the other. Further, and importantly an elector must have sufficient or requisite knowledge of the facts before a choice can be said to have been made.[78]
[78] Sargent v ASL Development Ltd (1974) 4 ALR 257, 267; Khoury v Government Insurance Office of New South Wales(1984) 54 ALR 639.
The plaintiff contended that the defendant's acceptance of liability for the plaintiff's claim and request for proof of loss in the email dated 12 March 2014 was unequivocal in its terms. Further that at the time of admitting liability the defendant had sufficient knowledge of the relevant facts to form an opinion that Mr Goncalves had possibly committed suicide, was riding on the wrong side of the road and allegedly intended to cause the collision.
The defendant denies that it had sufficient knowledge because:
1.the only information concerning the circumstances of the collision were speculative and merely raised the possibility of suicide because they came from Mr Rodgers' post on Perthstreetbikes.com; and
2.there were significant further necessary investigations (including a coroner's inquiry) which had not been undertaken.
More fundamentally, the defendant submitted that the doctrine of election did not apply because:
1.An election cannot arise in respect of an insurance policy where an exemption applies[79] ie inconsistent rights do not exist because the policy 'never did not apply'.[80]
2.Section 51 of the Insurance Contracts Act 1984 creates a new cause of action in a claimant against a liability insurer, not for damages, but for the payment of the amount payable by the liability insurer in respect of the insured's liability to the claimant. This is predicated on actual liability in the contract such that election has no part to play.
[79] Freshmark Ltd v Mercantile Mutual Insurance (Australia) Ltd[1994] 2 Qd R 390, 395 (MacPherson JA); John Connell Holdings Pty Ltd v Mercantile Mutual Holdings Ltd(formerly Mercantile Mutual Insurance Co Ltd) (1998) 10 ANZ Ins Cas 61-407.
[80] See defendant's amended outline of submissions, pars 81 - 93.
Given the findings of fact I have made and the conclusions that arise from these regarding the defendant's liability it is not necessary for me to resolve these issues and I do not do so. I will however make the following factual observations:
1.the post by Mr Rodgers was not, as at 12 March 2014, verified as either accurate or credible;
2.significant investigations including a coronial inquiry had not been completed;
3.any acceptance of liability was quickly reassessed and promptly withdrawn; and
4.Mr Joyce, the defendant's witness called to speak to these matters, impressed as honest and credible.
MS
Associate to Judge Petrusa
25 OCTOBER 2022
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