Cope v Crandall

[2003] QDC 51

DISTRICT COURT OF QUEENSLAND

CITATION:	Cope v Crandall [2003] QDC 051
PARTIES:	SIMON TROY COPE Plaintiff v BRADLEY KARL CRANDALL First Defendant And SUNCORP METWAY INSURANCE LIMITED Second Defendant
FILE NO:	D3189 of 2001
DIVISION:	Civil
PROCEEDING:	Action for damages for personal injury
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	22 May 2003
DELIVERED AT:	Brisbane
HEARING DATE:	14, 15 May 2003
JUDGE:	Boulton DCJ
ORDER:	I find for the plaintiff on the issue of liability and find against the defendant on the issue of contributory negligence. When informed of the agreed quantum I propose to give judgment for the plaintiff against the defendants in that amount with costs to be assessed.
CATCHWORDS:	Motor Vehicle Accident – First Defendant convicted of Dangerous Driving causing her death – Evidence Act s 79
COUNSEL:	Mr M Grant-Taylor SC with Mr E J Howard for the plaintiff; Mr K Howell for the defendants
SOLICITORS:	Trilby Misso; Jensen McConaghy

REASONS FOR JUDGMENT

1. The plaintiff was born on 27 April 1976. He was injured in a motor vehicle accident in the early hours of the morning of 20 June 1999. The owner of the vehicle was the first defendant.

2. Quantum is not in issue. The only issue concerns liability. The central issue to be determined is whether the first defendant was driving the vehicle when it left the road and overturned on Pumicestone Road at Toorbul. The defence case is that the plaintiff was the driver.

3. It is common ground that the people involved had been attending a birthday party of a young man, Michael Lewis, at Toorbul. At about midnight the plaintiff and the first defendant along with the plaintiff’s girlfriend, Susan Lewis, left the party to go to a fast food outlet on the Bruce Highway. At some stage another girl, Jody Turnbull, accompanied them. The Land Cruiser utility owned by the first defendant had a single bench seat which normally would accommodate three people. It is common ground that Jody Turnbull was nearest the passenger side window. The plaintiff says that he was sitting in the middle with his girlfriend, Susan, on his lap and that the first defendant was driving. The first defendant says that the plaintiff was driving with Susan sitting on his left knee and that he was sitting in the middle. None were wearing seatbelts.

4. Susan suffered severe internal injuries which resulted in her death. The other three suffered various injuries with the plaintiff seemingly less seriously injured than the other two.

5. The plaintiff says that the first defendant was driving the 4WD at a fast speed of up to 120km per hour along Pumicestone Road and lost control on some bends. The location is marked on Ex 2 and Ex 6 and appears non-contentious.

[6]	The defendant suggests that there was a stationary vehicle on the roadway and that the car lost control as it evaded the stationary car.
[7]	The plaintiff’s version as to the positions in the vehicle were supported by Gary Michael Lewis who was near the vehicle shortly before it departed.

1. He is also supported by Mr Gary Michael Lewis, who says that at a New Year’s party some six months later, the first defendant expressed his sorrow at Susan’s death and admitted having driven the car. The first defendant was convicted on a charge of dangerous driving causing death. The certificate of conviction is Ex 2. I am referred to s 79 of the Evidence Act and two reported cases Kerr v Nominal Defendant (Qld) 5 MVR 175 and Jacobsen v Suncorp Insurance and Finance (No 2) (1992) 1 Qd R 385. The effect of the Evidence Act is that the defendant is taken to have committed the acts constituting the offence, including driving the vehicle, unless the contrary is proved.

2. The plaintiff’s mother was suggested to have been present at a conversation at the Redcliffe Hospital in the presence of the first defendant’s mother and father where the plaintiff used words “I came around the corner” suggesting that he had in fact been the driver. She rejected the suggestion that such a conversation had taken place. She denied that Mr and Mrs Crandall had been in the plaintiff’s room at the hospital. While she agreed that a conversation had taken place she put it at a different time and place and suggested it related rather to the first defendant’s concerns.

3. It was also put to the plaintiff that following the accident he had made comments at the scene to the first defendant’s brother, Dwayne, that he had been the driver. The plaintiff denied this. However, Dwayne gave evidence in the defendant’s case to the effect that the plaintiff said:

   “I don’t know what happened. I don’t know what I’ve done, I don’t
   know what I’ve done.”

4. Dwayne conceded under cross-examination that nothing said by the plaintiff at the time gave him to understand that the plaintiff was admitting having been the driver of the vehicle.

5. The first defendant’s medical reports at the Caboolture Hospital, Ex 9, contain a notation to the effect that there was a history of the first defendant having been the driver of the vehicle. I place little reliance on this statement as the evidence also suggests that the first defendant had been seriously injured. The history may well have derived from someone else.

6. I heard some evidence from a medical expert, Dr Ansford and an engineering expert, Dr Grigg which sought to unravel the conflict regard positions in the vehicle from later examination. In a situation where the vehicle had rolled at least once and all four persons had been thrown out of the vehicle in the process, it was a futile exercise. Dr Grigg spoke of the chances of various things occurring but such generalisations must yield to firsthand evidence of witnesses.

[14] The first defendant was cross-examined by Mr Grant-Taylor concerning a statement, Ex 10, that he had made to Suncorp in late 1999 which contained no reference to the fact that the plaintiff had been driving. A further notice of accident, Ex 11, also made no mention of the identity of the driver and contained the notation “I have very little recollection” in response to the question “who do you consider was responsible for causing the accident.” Exhibit 10 is dated 18 November 1999 and Ex 11 23 September 1999. The first defendant says that his recollections have improved since. I am not persuaded by this explanation. He now purports to remember quite precise details of conversations even the precise position that he had his feet on the floor. He refers to smoke ahead and the presence of another vehicle on the roadway, the cause of the accident. No other witness makes reference to this.

1. Such an explanation would have been of considerable significance in defending himself on the charge of dangerous driving causing death, as would the alleged conversations referred to by his parents and his brother Dwayne. However he did not give or call evidence on his trial.

2. The first defendant also agreed under cross-examination that he had not made any attempt to sue Mr Cope for damages for personal injury. The evidence became somewhat clouded in re-examination when he made vague reference to a limitation period and of some advice on preserving his position. No evidence has been brought to suggest that any proceedings were in fact commenced.

3. I also find it difficult to accept that the first defendant, who had never allowed anyone other than himself to drive his vehicle would permit the plaintiff who was not a particular friend of his, to drive the vehicle. It is even more unlikely that he would have allowed the plaintiff to drive the vehicle, which had manual controls, with his girlfriend Susan sitting on his knee.

4. The plaintiff had a number of traffic offences against him – exceeding the speed limit, driving whilst affected by liquor etc. It is suggested that he had a powerful motive to deny that he was the driver. It was his girlfriend that was tragically killed. It seems to be common ground that he had consumed liquor on the previous evening, as indeed, had the first defendant. There is no suggestion that the first defendant, however, was adversely affected.

5. Counsel for the first defendant placed much reliance on the evidence of Mr and Mrs Crandall concerning the alleged conversations at the hospital and the statements of the plaintiff which were alleged to have been made at the scene to Dwayne. The statements allegedly made to Dwayne are equivocal and might well have come from a confused person in the immediate aftermath of an accident where he had been knocked unconscious. Dwayne didn’t construe them as admissions that he had been driving. The conversations referred to by the first defendant’s parents, hinge for their value, on the use of “I” instead of “We”.

6. Several factors suggest that I should place little reliance on this evidence apart from its already obvious tenuousness. The parents did not give evidence for their son at his trial on a charge of dangerous driving causing death. If the identity of the driver was an issue on the trial – and this is unclear – the explanation that they say they were given of being related to their son is odd to say the least. Furthermore the first defendant claims to have been told by his parents of the conversations “within a month” of them having occurred. Yet months later, when asked about the topic or when given an opportunity to say something, he gave no response.

7. The plaintiff succeeds then on the issue of liability by quite a large margin.

8. There is the issue of contributory negligence in alleged failure to wear a seatbelt fitted to the middle of the bench seat where the plaintiff was seated with his girlfriend on his lap. The only evidence concerning the existence of such a seatbelt came from the first defendant in a passage which – despite my efforts – remained somewhat unclear:

   “MR GRANT-TAYLOR: You say in that statement that the vehicle, the LandCruiser was fitted with lap sash belts?-- For the middle seat, yes.

   I beg your pardon?-- The other two had side slash over your shoulder.

   For the middle seat?-- Middle seat. to the middle seat?-- On the driver’s side, I think it was.

   On the driver’s side? Are you seriously saying that there were two seatbelts attached to the driver’s side pillar in that vehicle?

   HIS HONOUR: I think he might – just a moment – I think you might be at cross-purposes. He gave me to understand there were two lap sash belts, one on other side, but the middle belt-----?-- The middle was-----

   -----was only just a lap belt?-- The other two was normal seatbelts.

   I think you are on the same wave length, really.

   MR GRANT-TAYLOR: You don’t make mention of this middle belt in your statement, do you?-- I wasn’t wearing it.

   I beg your pardon?-- I wasn’t wearing it.

   Listen to the question. You don’t make any mention of this middle belt in your statement, do you?-- No.

   No?-- I don’t think so.

   All you say is, “My Toyoto LandCruiser” – paragraph 10 – “is fitted with lap sash type seatbelts.” Now, whatever might be the belt in the middle seat, it certainly wasn’t a lap sash, was it?-- It was over the shoulder.

   I beg your pardon?-- For the driver and the passenger on the far left is over the shoulder. For the middle it was lap sash.

   Are you sure there was a belt in the middle?-- Yes, there is.
   There is?-- Yes.”

9. The first defendant was, in my opinion, quite an unreliable witness and I would not be prepared to find on the balance of probabilities, that there was a seatbelt fitted to the middle seat. Furthermore, there was no evidence whatsoever that such a seatbelt, if fitted, was available to the plaintiff and was in good working order.

10. I am referred to an unreported decision of Cooper J in Supreme Court of Queensland delivered 8 March 1990 where his Honour found that in order to establish contributory negligence the defendant had to establish, on the balance of probabilities, the abovementioned facts. Reference was made in that case to a decision of Slattery CJ at Common Law in the Supreme Court of New South Wales Dutcher v Govermment Insurance Office (NSW) 7 MVR 447 and Dawkins v Robinson & Anor, a decision at the New South Wales Court of Appeal 3 MVR 77. In each case it was held that the defendant must establish that the seatbelt was in good working order. This was not done in the present case and puts the issue of contributory negligence out of the question.

11. I find for the plaintiff on the issue of liability and find against the defendant on the issue of contributory negligence. When informed of the agreed quantum I propose to give judgment for the plaintiff against the defendants in that amount with costs to be assessed.