Costa v Sortino - [2000] NTSC 66

Costa v Sortino & Anor [2000] NTSC 66
PARTIES:CARLO COSTA by his litigation guardian MASSIMO COSTA
v

GIANFRANCO SORTINO
and
TERRITORY INSURANCE OFFICE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9808742 77/98
DELIVERED:  17 August 2000
HEARING DATES:  26 June to 27 July 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Plaintiff:S. Walsh QC, with P. Barr
Defendant:No appearance
Third Party:  D. Peek QC, with I. Nosworthy
Solicitors:
Plaintiff:Hunt & Hunt
Defendant:No appearance
Third Party:  Ward Keller
Judgment category classification:    B
Judgment ID Number:  ril0016
Number of pages:  75

ril0016
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Costa v Sortino & Anor [2000] NTSC #
No. 9808742 77/98

BETWEEN:
CARLO COSTA by his litigation guardian MASSIMO COSTA

Plaintiff
AND:
GIANFRANCO SORTINO

Defendant
TERRITORY INSURANCE OFFICE
Third Party

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 17 August 2000)

The plaintiff was seriously injured in a motor vehicle accident that occurred on 14 August 1997. As a result of his injuries he suffers, inter alia, from “tetraplegia, facio – faringo – laringo – glosso – masticatory diplegia” and what has been described as “locked in syndrome”. It was agreed that his condition meant that he was unable to give evidence in these proceedings.

The plaintiff, through his litigation guardian, claims damages against the defendant who, he alleges, was the driver of the vehicle involved in the accident and was negligent in his driving. The defendant, in his defence, admitted that he was the driver of the vehicle at the relevant time but denied the allegations of negligence. The defendant commenced third party proceedings against the Territory Insurance Office seeking an indemnity in relation to any damages and costs which may be awarded in favour of the plaintiff and against the defendant. His claim for indemnity was made in reliance upon s 6(1) of the Motor Accidents (Compensation) Act.
Notwithstanding the admission made by the defendant that he was the driver of the vehicle the third party denied that this was the case. The third party alleged that the defendant conspired with others to attempt to defraud the third party by asserting that the plaintiff was a passenger in the vehicle when the plaintiff was, in fact, the driver. In the event that it is found that the plaintiff was not the driver the third party alleged that the plaintiff was guilty of contributory negligence.
At the commencement of the trial the defendant did not appear in person. His solicitor appeared and informed the Court that his instructions had been withdrawn. The solicitor was granted leave to cease to act on behalf of the defendant. The defendant did not appear or seek to be heard at any time during the course of the hearing.
This part of the proceedings is concerned only with the issue of liability.
HISTORY
The plaintiff, who is an Italian citizen, came to Australia with others for a holiday. The holiday was organised by a professional travel group, Viaggi Nel Mondo, which brought together 16 people for the purpose. Included was a leader for the group, Mr Luigi Pepe. Mr Pepe received free air travel and did not pay for his food or accommodation.
The plaintiff and the defendant knew each other prior to the commencement of the trip. Mr Pepe did not know the plaintiff but knew the defendant and some other members of the party. Other members of the group included friends, couples or individuals who had not previously known others who made up the group. The group met in Rome before the trip commenced. They travelled together in the same aircraft to Bali in Indonesia and then on to Darwin arriving in the early hours of the morning of 13 August 1997.
At the Darwin Airport the group collected four vehicles for the trip. This had been arranged in advance by the travel agency. Mr Pepe, in his capacity as tour leader, attended to the formalities at the Darwin Airport. Different witnesses had differing recollections of precisely what took place on that occasion but there is no dispute that, following the request of Mr Pepe, six members of the group agreed to be nominated as authorised drivers. There was some discussion within the group regarding whether or not additional insurance should be taken out but that was not done.
The authorised drivers included the plaintiff but did not include the defendant.
The group was divided into four smaller groups one of which consisted of the plaintiff, the defendant, Mr Testa and Mr Testa’s wife, Maura Nardi. The evidence of Mr Testa was that in all of the journeys undertaken by the group he and his wife travelled in the same vehicle as the plaintiff and the defendant. They sat in the rear of the vehicle. The plaintiff and the defendant sat in the front and each drove the vehicle on occasion. Apart from the journey which immediately preceded the accident Mr Testa was unable to say who drove on any particular occasion. However it was always either the plaintiff or the defendant. He was firm in his evidence that at the time of the accident the defendant was driving the vehicle and the plaintiff was a front seat passenger.
On 13 August 1997 the group did some sight seeing around Darwin. On the morning of 14 August 1997 they left Darwin in a convoy of 4 vehicles and travelled to some giant termite mounds. They then travelled to a location where there was a waterfall and some members of the group took a swim. It seems likely that this was in Litchfield Park.
The group then travelled in convoy towards Kakadu. They stopped at a service station on the Arnhem Highway where they had something to eat. It was after that break in the journey that the accident occurred. What followed is described by Mr Testa in these terms:
“I approached our car with my wife, Gianfranco (the defendant) and Carlo Costa (the plaintiff). We got in the car and waited until the others were ready to leave. Carlo Costa was seated in the front passenger seat and Gianfranco was behind the wheel in the driver’s seat. Gianfranco got out of the car to go and buy a bottle of water. He came back with the water and got behind the wheel again. When everyone was ready we left. Gianfranco Sortino and Carlo Costa had their seatbelts on. My wife and I, however, were not wearing seatbelts.
We were travelling along a very straight and rather narrow and flat road. Luigi Pepe was leading the cars and our car was immediately behind his. I do not remember who was directly behind us.
At the time of the accident my wife and I were resting. I had my eyes shut but I wasn’t asleep and I was seated behind Carlo Costa on the left-hand side of the car. My wife was seated behind Gianfranco Sortino on the right-hand side of the car. At a certain point I noticed from the noise of the tyres on the dirt that the car was going off the road towards the left, leaving the asphalt and going onto the dirt. I felt that the car was leaving the road gradually. At this point I opened my eyes and saw that the steering wheel was turning quickly towards the right. When I saw the steering wheel turning in that way I yelled ‘What the fuck are you doing?’. The car started rolling on Carlo’s side and continued overturning on his side. I don’t remember how many times the car turned over but it seemed like at least two or three times.”
Although the plaintiff suffered serious injuries of the kind I have described he was, at that time, not obviously seriously injured. He was standing for a period and was complaining of pain in his neck. He seemed to Mr Pepe, Mr Iacorossi and Mr Testa to be in a state of shock.
It is the case for the plaintiff that immediately after the accident both Mr Pepe and the defendant were concerned that the defendant should not admit that he was the driver of the vehicle because he was not an authorised driver. The vehicle concerned had been badly damaged and they were worried that the status of the defendant as an unauthorised driver may affect responsibility for the loss resulting. Mr Pepe and the defendant jointly approached Mr Testa, who was an authorised driver, and asked if he would be willing to say that he was the driver. Mr Testa gave evidence that he angrily declined. Mr Pepe and the defendant then suggested that the plaintiff, who was also an authorised driver, should be approached.
The plaintiff agreed to the proposition and subsequently indicated to others that he was the driver of the vehicle. Mr Testa said that he advised against any approach to the plaintiff and he was not aware that such an approach had been made to him.
At the scene of the accident the condition of the plaintiff was a matter for concern but not regarded as especially serious. The subsequent deterioration of the plaintiff at the hospital came in a sudden and dramatic manner. The staff in the emergency section of the hospital had treated and observed the plaintiff and decided that he was fit to be discharged. Members of the touring party felt that he should be kept in hospital for observation. A heated discussion was taking place when the plaintiff suffered a sudden collapse. It was, for all concerned, a very distressing time. It was thought by some of the party that the plaintiff would die.
At the scene of the accident some members of the group including the plaintiff, the defendant and Mr Pepe maintained or acquiesced in the proposition that the plaintiff was the driver of the relevant vehicle at the time of the accident. Later, at Royal Darwin Hospital, when it became clear that the plaintiff may be seriously injured and possibly die, a decision was made to tell the authorities that the defendant was in fact the driver. The plaintiff and his relevant witnesses say that reflected the truth of the situation.
It is the case for the third party that each of the witnesses who claims that the defendant was the driver of the motor vehicle at the time of the accident is either lying or mistaken. Some of those witnesses, including Mr Pepe and the defendant, are said to be part of a conspiracy to defraud the third party. The truth it says rests in the first version of events provided to the authorities and that is that the plaintiff was the driver. This story was abandoned when it was realised that the plaintiff might be unable to recover damages for his injuries if he was the driver. For that reason the defendant and some of the witnesses called on behalf of the plaintiff falsely claimed that the defendant was the driver.
The third party says that on both versions of events the relevant members of the group were prepared to lie as to who was the driver of the vehicle. The question for determination is whether the version of events given at the scene and initially at the hospital was the lie or, alternatively, whether that given later was the lie.
The witnesses called gave differing accounts of events both leading up to the accident and of events following the accident. However it is relevant to note that all of these witnesses tell broadly consistent stories. Given that the accident occurred on 14 August 1997 and that the circumstances surrounding the accident and its aftermath were both distressing and chaotic for many of the witnesses it is to be expected that discrepancies may arise. It is not surprising that all will not be remembered in precise order, that times may become elongated or abridged, that some incidents will be forgotten, that the identification of individuals will become blurred, that as people moved around the accident site some witnesses will have differing recollections as to who was present at various times, and that other errors will occur. Whilst some differences between witnesses are difficult to reconcile that is not unexpected in the circumstances.
In order to resolve the issues raised on the pleadings it is necessary to consider in detail the evidence of some of the witnesses called.
ETTORE TESTA
Mr Testa gave evidence that he has a clear memory of the defendant being the driver on the occasion of the accident. He said this was so because he recalls the defendant asking him if he had any water at a time when the convoy was about to depart from the service station shortly prior to the accident. At this time the defendant was seated in the driver’s seat. On the advice of Mr Testa the defendant ran back to the service station and obtained some water for himself. He then returned to the vehicle and got back into the driver’s seat. The plaintiff was a front seat passenger. Under cross-examination Mr Testa agreed that, but for the accident, this incident would not have had any importance to him. However, after the accident it became relevant. He said, “the relevance is as much as I was involved in the accident. I could’ve been killed so it was relevant to me who was driving the car”. Mr Testa saw the water bottle at the time it was obtained by the defendant but did not see it again. He went on to say that he remembered the episode with the water “because it was Mr Sortino who caused the accident”.
Further in relation to the identity of the driver, Mr Testa said that shortly after the accident the defendant came to Mr Testa and his wife and said something like, “I’m sorry guys, but you know I got distracted for a moment. A bottle of water fell and I got distracted, you know, just a moment, trying to get the bottle”. Mr Testa said he was “pretty upset” at that time and said to the defendant something like, “You know, people who don’t know how to drive shouldn’t get behind the wheel”. He said this loudly and on a number of occasions. Other witnesses spoke of this occurrence.
Mr Testa gave evidence that he was subsequently approached by Mr Pepe and the defendant at the scene of the accident. Mr Pepe did the talking. Mr Pepe asked him whether, in view of the fact that Mr Testa was an authorised driver, he would declare to the police that he was the driver of the vehicle. Mr Testa said that he got very angry and told them not to put him in that situation. He told the Court he had been a policeman in Italy and knew the consequences of saying something that was not true in a situation such as that which existed. Mr Testa said that it was a serious accident and he regarded it as imperative to tell the truth.
Mr Testa said that Mr Pepe then suggested that Mr Pepe and the defendant should approach the plaintiff, as he was also an authorised driver. Mr Testa warned them against doing this saying, “Leave Carlo alone because I don’t think he is in a condition to take such a decision”. He thought the plaintiff was not clear-minded or lucid as a result of injuries suffered in the accident. When this conversation with Mr Pepe and the defendant ended Mr Testa understood that Mr Pepe would tell the truth and he said he was reassured regarding this point. He denied the suggestion that he told Mr Pepe and the defendant that they could say whatever they liked. He conceded that someone listening might have thought that to be so because of his explosive reaction and the language he used. He did not hear anyone in the group tell anyone in authority that the plaintiff was the driver of the vehicle and he was not asked about the identity of the driver himself.
The persons involved in identifying a driver to replace the defendant were the defendant himself, Mr Pepe and, to a lesser extent, Mr Iacorossi. Mr Iacorossi confirmed that Mr Testa angrily rejected the suggestion that he should nominate himself as the driver. However he thought “it was not possible” for Mr Testa and Ms Nardi not to know that the authorities were to be told that the plaintiff was the driver. Mr Pepe also confirmed that Mr Testa “reacted badly” to the suggestion that he should say that he was driving. Mr Pepe went on to say that, at that time, Mr Testa told him that “he didn’t want to know anything else about it”. In cross-examination Mr Pepe said that either he or the defendant informed Mr Testa that the plaintiff was prepared to say he was driving. Whether he thought that was so or not I accept the evidence of Mr Testa that he heard nothing further on the issue. There may have been discussion near to him but I accept that his position was and remained that he would not falsely claim that he was the driver of the vehicle and he wanted no part of any false story regarding anyone else. I do not accept that Mr Testa was aware that anyone was to be nominated as the driver of the vehicle in place of the defendant.
The third party pointed to the evidence of the independent witnesses who attended at the scene after the accident regarding what was said to be the involvement of Mr Testa in promoting the suggestion that the plaintiff was the driver. Those witnesses for present purposes were Mr Whatley, Mr Roberts, Mr Hoschke and Ms Sinclair.
In his witness statement Mr Whatley, a member of the Bush Fire Council, gave evidence of attending at the scene of the accident at around 3pm. He said that he organised the injured people to sit in the shade along the driver’s side of the vehicle. He identified a young injured male who, through a process of elimination, can be taken to be Mr Testa. He said that Mr Testa, along with a female passenger (identified as “L”), identified the plaintiff as being the driver of the vehicle. Under cross-examination it emerged that Mr Whatley was not as clear in his recollection as the statement may have indicated. He agreed that the injured passengers might already have been situated in the positions in which he thought he had placed them. There was also doubt as to whether or not the person identified as “L” was one person or a combination of two female persons who were present. By reference to photographs he identified the person “L” as being Mrs Massaro and then later, when shown other photographs, indicated Ms Nardi as being “familiar also”. It would seem that the person he identified as the interpreter was not Ms Nardi because she was lying on the ground at the relevant time and not wandering around as he suggested the interpreter was. Further Mr Whatley recalled that the interpreter spoke “reasonably good English”. That is unlikely to have been Ms Nardi who did not speak good English according to Mr Roberts, Mr Testa and Mr Pepe. Mr Hoschke said she could provide basic information. More importantly Mr Whatley moved away from his assertion that the person who identified the driver was Mr Testa. At first he said he could not recall whether the lady who had been interpreting had pointed at the plaintiff or the male passenger (ie Mr Testa) had done so. He then said that he thought that someone gestured but that it may not have been Mr Testa. At the completion of his evidence it was unclear just who had identified the driver to him. Although Mr Testa may have been in the area I am not prepared to accept that he made the identification originally claimed by Mr Whatley.
Mr Whatley was unable to recall being assisted by a male interpreter. His recollection in this regard is different from that of Mr Roberts who accompanied him. Nor does it fit comfortably with the evidence of Ms Sinclair and Mr Hoschke that a male person assisted them. Where there is conflict I accept the evidence of Mr Roberts in preference to that of Mr Whatley.
Mr Roberts said that the manner in which Mr Whatley and himself identified the driver had been in direct conversation with the plaintiff. They established the circumstances of the accident by communicating with passengers directly, by using gestures and hand signals and with the assistance of the person who was best able to speak English. Mr Roberts described that person as being a male person of medium height and slim build. He did not refer to the female identified by Mr Whatley as being an interpreter. He thought that the people identified as Ms Nardi and Mr Testa “were within earshot”. This does not mean that Mr Testa was listening to or was part of the conversation.

The third party also relied upon the evidence of Mr David Hoschke, an ambulance officer, who attended the scene. He gave evidence that he established that the plaintiff was the driver and he did so firstly through a male interpreter and then in direct conversation with the plaintiff. He said that:
“There were other occupants of the vehicle walking and sitting in a close vicinity and at least one and possibly two persons who had identified themselves as other occupants of the vehicle were lying down in the shade along the same side of the vehicle, one of them was a woman.”
He thought these people would have been able to hear the conversation between himself and the plaintiff. Again I do not accept that Mr Testa in fact heard the conversation even though he may have been in a position to do so.
Similarly the third party relied upon the evidence of Ms Edeline Sinclair who was an ambulance officer and who attended the scene with Mr Hoschke. She said that she established that the plaintiff was the driver by direct questioning. The plaintiff described the circumstances of the accident to her. He said he endeavoured to reach for a water bottle that was on the console, but he bumped it and it fell to the passenger side floor. He looked down and when he looked up again he had gone off the road and, in correcting, he lost control. He said he was doing “in excess of 100 kilometres per hour”. This information is consistent with the plaintiff having agreed to be identified as the driver at this time. She also said that this occurred when she “would have thought that Testa and Nardi could also hear me, but I do not know whether they were actually paying attention to the conversation.” Again this does not suggest that Mr Testa in fact heard the conversation.
Whilst witnesses said that, because of the surrounding circumstances they were sure that Mr Testa and his wife knew what was going on, Mr Testa denied this was so in relation to himself. I have no difficulty in accepting the denial of Mr Testa. Although there was discussion about who was the driver and, indeed, the plaintiff was identified as the driver at the scene and in the vicinity of members of the group, including Mr Testa, this does not mean that he was aware of this. At the relevant times Mr Testa was seated or lying on the ground, at times he was discussing matters with his wife (about whom he was concerned), he was also conversing with Mrs Petrocchi and he was in pain, shaken by the accident and suffering breathing difficulties. In addition some at least of the conversation would have been in English, a language in which he had only a limited facility. Whilst he may have been present in a physical sense I accept his evidence that he was unaware of what others thought he “must have” heard. Although Mr Testa gave evidence that he was reassured that the truth would be told he also said with some force that he did not wish to be involved in any deceit. The likelihood is that he was not involved in the deceit either at this time or at any time before he left to return to Italy with his wife. There is support for this conclusion in the evidence of Mr Randazzo who said that when he spoke by telephone with Mr Testa in Italy “he acted with some surprise that false statements had been made”.
The third party submitted that it made no sense to conclude a plan that a false story be given to the authorities without including Mr Testa and Ms Nardi. The participants in the scheme may have been satisfied that this was not a matter of overwhelming concern given the vehemence of the rejection by Mr Testa and his expression that he did not want to be involved in anything regarding the matter. It must be remembered that this scheme was concocted in a very short period of time. As Mr Pepe said, it was not a “plan” but rather “something which was sort of improvised at the moment”. Consistent with this is the evidence that Mrs Massaro expressed her view that she was not willing to go along with the deception. No evidence was given that she changed her stance at any time. Her position did not deter the plaintiff, Mr Pepe and the defendant from proceeding to identify the plaintiff as the driver in any event. I find that Mr Testa was not involved.
After the accident Mr Testa and his wife were transported to Royal Darwin Hospital in separate ambulances. Mr Testa was taken to the emergency section where he underwent X-rays. They spent some time at the hospital and spoke with other members of the group in the waiting room. They spoke of their condition and of the condition of the plaintiff. Mr Testa said he did not hear any discussion regarding who had been driving the car. After they left the hospital they stayed in a hotel until they returned to Italy on 17 August 1997. Whilst they were at the hospital and up until the time they left to return to Italy there was, as the third party submits, opportunity for Mr Testa and Ms Nardi to be informed of the decision made at the hospital to change stories as to the identity of the driver. Mr Pepe thought they were present and heard the defendant indicate that he wished to tell the truth and say that he was the driver. Alternatively, Mr Pepe said he assumed they were “informed at a different time”. Mr Iacorossi thought that Mr Testa and Ms Nardi had left the hospital when these discussions occurred. Whilst Mr Pepe and Mr Iacorossi both acknowledged as a matter of logic the importance of ensuring Mr Testa was aware of the changed story, when this matter was raised with them in cross-examination neither identified himself as having provided that information to Mr Testa. Mr Iacorossi said that someone “should have” told them of the changes and he thought, “everybody knew the day after that we have decided to tell the truth”. I have no reason to doubt the assertion made by Mr Testa that he was not told.
At the scene of the accident Mr Testa thought that all four of the occupants of the vehicle had escaped serious injury. He thought the person suffering the most serious injuries was the plaintiff, but did not think that those injuries were in fact serious. It was not until the party reached the hospital and the plaintiff collapsed that it became clear to Mr Testa that the plaintiff had suffered very serious injuries.
Mr Testa was an authorised driver. He understood that the identification of authorised drivers was important under the rental agreement for reasons connected with insurance, but he did not know what those reasons were. The leader of the group, Mr Pepe, provided no explanation that Mr Testa heard. Indeed, the evidence of Mr Pepe suggests that in any event he had only a limited understanding of the matter. Mr Testa assumed insurance covered “everything, because I know the companies who hire cars, they, you know, cover themselves against every risk, everything”. He indicated that he was not aware that the person who drove the car might not be covered by the insurance. He understood the purpose of identifying drivers was that the Hire Company would be aware of who was driving its vehicles, and it was “related to the insurance matter” as well. It was not until he had returned to Italy that he had learned that the insurance cover that came with the rental agreement did not cover personal injuries to the driver.
The third party submitted that Mr Testa was quite unclear as to who had been driving at the relevant time. It was pointed out that Mr Testa was in pain and was concerned regarding the condition of himself and his wife. He was, it was submitted, vulnerable to suggestion and contamination of memory. He therefore may have been willing to embrace the suggestion that the defendant was the driver.
In support of this submission the third party suggested that immediately before the accident Mr Testa had in fact been asleep rather than simply having his eyes closed as he had suggested in his evidence. Others gave evidence that Mr Testa had told them, or they had heard that he had said, that he was asleep and did not see the accident. Whether that meant he had his eyes closed or was actually asleep was not explored with those witnesses. Whether or not Mr Testa was asleep at a time shortly before the accident is not the issue. Whatever the case may be he had his eyes closed at the commencement of the accident and he did not see the incident with the water bottle.
Further it was submitted by the third party that Mr Testa’s observation of the water bottle in the possession of the defendant before the journey started would have been the same had the defendant been the passenger rather than the driver. That is, it was submitted that the events may have occurred as described but with the defendant occupying the passenger’s seat rather than the driver’s seat. That is not so. Mr Testa clearly said that he saw the defendant sit in the driver’s seat and then get out, go and obtain some water, and return back to the driver’s seat.
There was an effort to discredit the evidence of Mr Testa by reference to the evidence of others. There were differences between Mr Testa and others as to how quickly he and his wife emerged from the vehicle after the accident, who told Mr Testa and his wife to lay down after the accident, when he in fact laid down, and also as to the direction the vehicle faced when it finally came to rest. I do not find these differences surprising. Indeed it would be surprising if each witness told a totally consistent story. Mr Testa candidly conceded that he could not be certain as to “the order or timing of things”. This was a problem shared by other witnesses. However he was certain of the important matters and the matters that one might expect he would remember. In giving evidence as to times and the order of events Mr Testa was doing his best to assist counsel who was pressing for some commitment as to these matters.
In the course of submissions my attention was directed to a passage in the evidence of Mr Testa in which Mr Testa is recorded as having heard from “the two persons from Milan” that the plaintiff got out of the car when “the car was still upside down”. That observation would be quite inconsistent with everything said by Mr Testa. It was not pursued by counsel in cross-examination and was not clarified in re-examination. Given that the observation was such a dramatic departure from what the witness had consistently said in this regard and given that neither counsel sought to clarify the matter I am unable to place any weight upon it. My concern is that it may reflect a transcription error or alternatively a translation error. As Mr Peek QC said in his submissions “it is bizarre”.
A matter not addressed by counsel in any detail was the fact that Mr Testa recorded the rollover of the vehicle occurring on the passenger side “and continued overturning on his side”. After some early disagreement the experts were in agreement that the vehicle in fact rolled with its left side passing over the right hand side ie clockwise when viewed from the rear. Mr Testa was, I find, in error in this regard. He was not asked any questions in relation to it and was not given any opportunity to explain what led him to the conclusion. I can only assume that the error arose out of confusion at the time he opened his eyes to find a rollover was commencing.
In relation to the issue of contributory negligence, Mr Testa gave evidence that he did not see the plaintiff put a hand on the steering wheel or in any way assume control of the vehicle. Mr Testa gave evidence that a day or two after the accident he was visited at the hotel by the defendant who was accompanied by Mr Randazzo or Mr Pepe. He was unable to say which of these persons was present and neither of them addressed this meeting in their own evidence. He was asked by one of his visitors whether he had seen the plaintiff putting a hand on the steering wheel. He said that he had not. He thought the defendant was trying to “clear himself” from his “guilt about causing the accident”. They did not discuss the issue of who was driving the vehicle. If, as the third party submits, the evidence of Mr Testa is designed to ensure a recovery of damages by the plaintiff it would seem unlikely that he would give evidence of this incident. One interpretation of what was being suggested to him was that the plaintiff had in fact assumed control of the vehicle by placing his hand on the steering wheel. If this were so it would give rise to an argument that the plaintiff was the author of his own misfortune or, alternatively, contributed to the occurrence. This is inconsistent with the objective the third party attributed to the witness.
After the accident, and upon his return to Italy, representatives of the third party approached Mr Testa. He provided them with a detailed statement, which was shown to him in the witness box. That statement was made to three people, one of whom was an interpreter. The same people also took a statement from Mr Testa’s wife Maura Nardi. Mr Testa left the room whilst this statement was taken. Mr Testa had his copy of his statement with him in Court but declined to provide it to the solicitors for the plaintiff. He regarded it as confidential to the third party. Both statements were made on 18 November 1998. Although not of a great deal of weight, it would be a little surprising, if Mr Testa and Ms Nardi were part of a conspiracy to defraud the third party, that they would each separately provide a statement to the solicitors for the third party (ie the party against whom they were conspiring) as to their involvement in the matter and, in addition, that Mr Testa, at least, would keep that statement from the legal representatives of the person they were seeking to assist. I note that other witnesses also co-operated with both the plaintiff and the third party. Mr Pepe, Mr Iacorossi and Mr Randazzo were each interviewed by representatives of both parties. There is no suggestion that any witness did not co-operate fully with both parties.
I accept Mr Testa as a witness of truth. He gave his evidence in a clear and forthright manner. He was not shaken in cross-examination. He was a careful witness and distinguished between those matters of which he was certain and those in relation to which he was in doubt. He was very firm in his statement that the defendant was driving the vehicle at the relevant time. Although some matters had faded from his memory and there were some inaccuracies in his recollection, he was doing his best to tell the truth.
It is most unlikely that Mr Testa was involved in a conspiracy of the kind alleged. Mr Testa met the plaintiff and the defendant for the first time at about the time the group left Italy for Bali. There was no suggestion that any special bond was created between them or, indeed, that they had much to do with each other. The evidence was to the contrary. Mr Testa and his wife wished to move out of the vehicle in which the plaintiff and the defendant travelled and in to the vehicle driven by Mr Pepe. This was not possible.
If the contention of the third party be correct Mr Testa has created or adapted an elaborate story on behalf of the plaintiff in order for the plaintiff to obtain compensation. He has invented a story regarding the defendant obtaining the bottle of water at the service station and the defendant taking his place behind the steering wheel. He has then invented the apology of the defendant and the anger that he expressed towards the defendant immediately following the accident. He has invented his warning to Mr Pepe to leave the plaintiff alone because “Carlo is hurt”. He has invented the conversation at the hotel when the defendant sought to attribute the whole, or at least some portion, of blame for the accident to the plaintiff. In a lengthy cross-examination he was not shaken in relation to any material particular in his story. He gave his evidence in a clear and forthright manner. I do not accept that he has misled the Court in the manner suggested.
I reject the suggestion that Mr Testa was involved in any conspiracy to defraud the third party. I accept the evidence of Mr Testa that, at the time of the accident, the defendant was driving the vehicle.
CHRISTOFORO IACOROSSI
Mr Iacorossi was a member of the group. At the time of the accident his vehicle had been travelling behind that in which the plaintiff and defendant travelled. He was not an authorised driver. He said he did not know the significance of being an authorised driver at that time. Mr Pepe told him at the scene of the accident why authorisation was important. The detail of that explanation was not elicited in evidence. He said that if he had known that an unauthorised driver was not covered by insurance he would not have driven the vehicle or, alternatively, would have presented his licence at the airport. Others were authorised and there was no real need for him to drive.
Although he gave evidence through an interpreter, he had some knowledge of English. He had studied it for five years at school and it was clear whilst he was giving evidence that he anticipated some of the questions before they had been interpreted. He also provided one or two short responses in English.
Mr Iacorossi did not know whether he was the first person on the scene of the accident, or amongst the first. He thought he was in the vehicle behind the accident vehicle, but it may be he was in the fourth car. He says he saw the accident clearly.
He was not sure how many times the vehicle rolled over. He was sure it rolled over once and he thought possibly twice. It first turned over when it was on the bitumen. He agreed with Mr Peek QC that he had, on an earlier occasion, said that he saw the vehicle roll once. However, he said that details had come back to him whilst he was thinking about the accident in the lead up to the hearing.
Mr Iacorossi gave evidence that after the accident occurred he stopped his vehicle and walked to the car of the plaintiff and the defendant. He saw that the defendant was in the driver’s seat and wearing a seatbelt. The plaintiff was in the front passenger seat and was wearing a seatbelt. He also observed Mr Testa and Ms Nardi in the rear of the vehicle. As he approached he saw the plaintiff undo his seatbelt and get out of the car of his own accord using the open passenger door at the front. He saw the defendant get out of the driver’s door. Mr Testa and Ms Nardi did not get out of the car immediately. At that time Mr Iacorossi said that the defendant informed him that he “got distracted because he was drinking some water”. That observation was made as soon as the defendant got out of the car and was later repeated several times. Mr Iacorossi went on to say:
“He tried to get back the car too suddenly and too violently and then the car turned over. As far as the person who was driving the car, there was a problem of the – the car which was heavily damaged, and since Sortino didn’t give the agency his driving licence to become one of the drivers, he thought it was going to be up to him to pay all the damages. So therefore he wanted to put, as the driver, the name of a person who had given the driver’s licence to the agency.”
Mr Iacorossi said their concern was the issue of insurance cover for the defendant in relation to damage to the vehicle. He was present when Mr Testa was asked whether he would agree to be identified as the driver and he heard Mr Testa answer in a “very angry” way. According to Mr Iacorossi Mr Testa said, “you do what you please with the people in front, but I was behind with my wife.” Mr Testa accused the defendant of not being able to drive and said, “this sort of thing shouldn’t happen”. Following the negative reaction of Mr Testa, Mr Iacorossi said that the plaintiff was asked if he would say that he was the driver. He agreed. The defendant made that request to the plaintiff in the presence of Mr Iacorossi. He said that Mrs Massaro told Mr Pepe and the defendant that she did not agree with them saying something to the police that was not true. Mr Iacorossi did not hear any conversation regarding insurance and personal injuries at that time. When the police arrived Mr Iacorossi did not speak with them. He did not pass on any information as to who was the driver.

It was agreed at the scene that the police would be told that the plaintiff was the driver. This was agreed in circumstances that led Mr Iacorossi to believe Mr Testa and Ms Nardi must have been aware of the arrangement. This is contrary to the evidence of Mr Testa that he did not know. It was an assumption on the part of Mr Iacorossi.
Mr Iacorossi described the plaintiff as being in shock immediately after the accident. He said the plaintiff got “slower and slower”. Mr Iacorossi arranged for the plaintiff to sit or lie in the shade by the vehicle near to the driver’s side. He described him as being “very confused”. He was asked whether the condition of the plaintiff was getting worse and he observed that this was the case “as far as shock is concerned”.
Mr Iacorossi later travelled back to Darwin. In his evidence he suggested that he had been the driver of the vehicle upon the return to Darwin. He subsequently conceded that this was in error and that he did not in fact drive back to Darwin. The third party submitted that in changing his story in this way it was demonstrated “that Mr Iacorossi is a person who displays the most cavalier dishonesty”. I do not accept that submission. It was an example of faulty recollection and his final position that he did not “remember of driving the car” back to Darwin is in all probability correct.
Later that evening, possibly at 11 p.m. or midnight, when the group was at the Royal Darwin Hospital Mr Iacorossi spoke with the defendant. He thought Mr Testa, Ms Nardi and Mr Pepe might have left by then. Those remaining were the people from his car and the defendant. He told the defendant that he thought the defendant should tell the truth about who was driving, namely that the defendant was the driver. The defendant agreed that was the best thing to do, and then he and the defendant spoke with a representative of the Italian Consulate in Darwin, Mrs Nicolosi, who had come to the hospital. They explained the whole situation to her. Mr Iacorossi makes no mention of Mr Pepe being present on this occasion and he said that there was no discussion of “general questions concerning insurance” whilst he was present. To the contrary Mr Pepe says that both he and Mr Iacorossi were present with the defendant when the conversation took place with Mrs Nicolosi. Mrs Nicolosi recalls Mr Pepe and the defendant being present but does not recall Mr Iacorossi. She does not recall any conversation at the hospital about the identity of the driver.
Mr Iacorossi said that his approach to the defendant followed upon discussions that he had with an Italian doctor working at the hospital. Mr Iacorossi told the defendant that the situation had changed and he wanted to tell the truth. The plaintiff’s condition had become very much worse. He was concerned that the plaintiff might die. The motivation to identify the defendant as the driver was not, as the third party would suggest, to enable the plaintiff to proceed against the third party in an action for damages for personal injuries. Rather the desire to tell the truth was prompted by the very serious condition of the plaintiff.
Mr Iacorossi went back to the hospital on the following morning. Other members of the group arrived later. The Testas and some others were not there at all. When it became clear to Mr Iacorossi that he could no longer assist with the plaintiff he, along with some other members of the group, continued on the trip to Kakadu. They left late in the morning on 15 August 1997. He did not see Mrs Nicolosi again. Mr Iacorossi has not seen the plaintiff since he left to continue on the tour. He met the defendant by chance in Sydney the day before they left for Italy, but there was no discussion concerning the circumstances of the accident. He saw Mr Pepe at the Whitsunday Islands when Mr Pepe caught up with the group. He did not like Mr Pepe and spoke with him as little as possible. He had not seen Ettore Testa or Maura Nardi since the accident, although he did see Ettore Testa outside court shortly prior to giving his evidence.
Mr Iacorossi gave evidence that subsequent to the trip he has had contact with some (but not all) of the members of the group since his return to Italy. He has never discussed with any member of group the issue of who was driving the vehicle. He said, “t here was no need, I never asked, I was never asked”.
As to the location of the people in the vehicle Mr Iacorossi had Mr Testa seated behind the defendant and Maura Nardi seated behind the plaintiff. That is in fact the reverse of what was described by Mr Testa in his evidence. The difference suggests that Mr Testa and Mr Iacorossi had not compared notes prior to giving evidence. I accept the evidence of Mr Testa on this issue supported as it is in a very general sense by the nature of the injuries suffered by Mr Testa and Ms Nardi.
After the ambulances left with the four people from the crashed vehicle the others remained behind for some time. Mr Iacorossi said that they discussed matters such as what to do next and what would happen to the continuation of the trip. He said they talked together but did not talk about the identity of the driver of the vehicle, or about any issue of insurance. He said that the remaining people were not particularly worried about the condition of those taken in the ambulances because they did not look as though they were seriously injured.
It is of interest that Mr Iacorossi in his original statement and again in his evidence said that he did not notice who was driving the accident vehicle when the convoy left the service station prior to the accident. He had the opportunity to observe who was driving the vehicle at this time and, if he wished to do so, could easily have falsely claimed that he observed the defendant in the driver’s seat. He did not do so but rather gave evidence of what he saw immediately after the accident which placed the plaintiff in the passenger seat and the defendant in the driver’s seat at that time.
In cross-examination Mr Iacorossi acknowledged that what he and the rest of the group did at the scene and later in naming the plaintiff as the driver was dishonest. He said that he did not encourage the defendant to take that course, but, on the other hand, he did not oppose him. He said that he recognised his mistake when they were at the hospital. He agreed that he only raised the matter of changing the stories when the condition of the plaintiff deteriorated. To some extent Mr Iacorossi sought to justify and minimise his involvement. However I am satisfied that he was a truthful and generally reliable witness. As with other witnesses he had difficulty with the timing and sequence of some events. He was doing his best to assist when pressed on these matters. I do not accept the submission of the third party that he was a dishonest witness. I accept his evidence on the significant issues and, in particular, that the defendant was in the driver’s seat and the plaintiff was in the front passenger seat when he approached the vehicle immediately after the accident.
Before this particular tour Mr Iacorossi had not met the plaintiff, the defendant, Mr Testa or his wife Maura Nardi. He did not know any of the members of the group before the tour commenced. The observations made in relation to Mr Testa in par [47] above have similar application to Mr Iacorossi.

LUIGI PEPE

Mr Pepe gave evidence that he was the tour leader for the group although he said a more correct description of his role was participant/coordinator. He had been travelling with Viaggi Nel Mondo, the travel agency, over a period of some years and had participated in 25 trips. In relation to 22 of those trips he was the tour leader. His normal occupation is that of a journalist.
Mr Pepe has an understanding of English. For a time he gave his evidence in English and then for a time with the assistance of an interpreter who interpreted the questions whilst the answers were given by Mr Pepe in English. Finally, the whole of the process took place in Italian with the assistance of an interpreter.
Mr Pepe knew several of the participants prior to the commencement of the tour. In particular, he knew the defendant from earlier trips. He met the plaintiff and Mr Iacorossi for the first time shortly prior to the commencement of the trip in Rome. Mr Pepe met Mr Testa and Ms Nardi for the first time at the airport in Rome as the group was about to depart.
Mr Pepe said that when the group arrived in Darwin he attended at the airport office of Territory Rent-a-Car and completed the arrangements for the hire of the 4 vehicles for the trip. In so doing he noted that additional insurance was available “which covered the drivers of the vehicles” but, after consultation, members of the group elected not to take it out.
Mr Pepe gave evidence of the first day in Darwin, which was spent sightseeing around Darwin. He then told of the trip on the following day to some waterfalls and swimming holes and then to the place at which the party had lunch. He said that when the last leg of the journey commenced the defendant had been the driver of the vehicle, which was travelling directly behind him. The plaintiff was a front seat passenger. A little later, whilst he was travelling ahead of the vehicles, he looked in the rear view mirror and saw a cloud of dust. He thought at first that one of the vehicles might have gone off the road and created the dust but when the other vehicles did not come into view he turned his vehicle around and went back.
Mr Pepe was cross-examined as to how he recalled that the defendant was the driver at the time of the accident. He responded by saying that he saw the defendant enter the vehicle on the driver’s side and he saw the defendant occupying the driver’s seat by looking in his rear view mirror. In addition he recalled that when the party had the luncheon break at a service station, the defendant approached him suggesting the plaintiff was not a good driver and also suggesting that Mr Testa and his wife were of the same view. This evidence is supported by the evidence of Mr Testa who said he complained to the defendant and to the plaintiff as to their manner of driving. Mr Testa said he did not complain directly to Mr Pepe. Mr Pepe said there had been two conversations regarding the driving of the plaintiff. The first was at Florence Falls and the second at the service station. Both were with the defendant but the defendant also passed on the comments of Mr Testa and Ms Nardi. It was after the second conversation that he observed the defendant enter the driver’s seat.
By the time Mr Pepe arrived at the scene he said that the other vehicles from the convoy were present. He got out of his vehicle and saw the plaintiff seated on a rock holding his head in his hands. He noticed blood on the plaintiff’s face. He saw Mr Testa and Ms Nardi lying by the side of the vehicle with the defendant seated nearby. Each of them was alternating their positions from sitting and leaning against the car, to lying down on the ground near the car. He did not remember them standing or walking around. He noted that the vehicle was badly damaged.
Soon after he arrived at the scene the defendant told Mr Pepe that the accident had happened because he became distracted whilst drinking from a bottle of water. When he spoke with Mr Testa and Ms Nardi they said that they had been resting and had not seen exactly what happened. He later said that he thought Mr Testa had been asleep immediately before the accident.
In relation to the plaintiff, Mr Pepe said that he checked his condition on a number of occasions. He had blood on his head and was complaining of pain in the head and the back of the neck. Mr Pepe thought that he was in shock, but not in sufficient shock that he could not understand what was happening around him. At that time Mr Pepe thought Mr Testa had the most serious problem as a result of the accident because he had “very strong pain in his leg”.
Mr Pepe said the defendant had asked Mr Pepe whether the fact that he was not an authorised driver would create problems in relation to the damage to the car. Mr Pepe responded that he did not know the answer. Mr Pepe thought that they should say that the defendant was not the driver in order to obtain time to evaluate the consequences of him not being an authorised driver, so far as the hire car company was concerned. He said, “you know, mostly to have time, you know, more time, to value what the consequences would be with the company where we hired the cars”. Although the insurance documentation was available in the vehicle Mr Pepe does not recall having checked it. He conceded he might have done so.
Although Mr Pepe claims that he was seeking to obtain time it is clear that he was concerned by the damage to the motor vehicle. He wished to create a story which would minimise the prospect that the defendant and possibly the Travel Company or himself, may have a liability arising from the damage to the vehicle. For that reason there was a conscious decision made to nominate a person who was an authorised driver as having been the driver. More was involved than simply buying time as Mr Pepe suggested. The decision was made on the spur of the moment. It was made in circumstances that were described as chaotic. Mr Pepe said that they did not have much time as “the authorities were coming very soon”. The decision to identify another person as the driver was a reaction rather than a considered decision.
Mr Pepe then approached Mr Testa and suggested that Mr Testa might admit to being the driver. He said that Mr Testa “reacted badly to my asking him to say he was driving, he was very annoyed and said that he would not say that he was driving, that he was in the back seat and that was all he was prepared to say”. Mr Testa had told him that he did not want to know anything else about the matter. I accept that this left Mr Pepe and others with the impression that the position of Mr Testa was that they could do what they wanted provided it did not involve him or his wife.
Mr Pepe and the defendant then approached the plaintiff and he agreed to say that he was driving in order to avoid any problems with the insurance. It is clear from this evidence that the focus of the attention of Mr Pepe, the plaintiff and the defendant was the potential liability of the defendant arising out of the damage to the vehicle. Mr Pepe agreed with counsel that logically the group would have had to have a uniform story and, in particular, it would be desirable for each of the people in the accident vehicle to nominate the same authorised driver. Mr Pepe did not remember Christina Massaro being against naming the plaintiff as the driver. He said that Mr Testa and his wife did not wish to get involved. There was no precise answer from Mr Testa, but he “just sort of said do whatever you like”.
Thereafter other people arrived including police and ambulance officers. Mr Pepe identified the plaintiff as the driver to the police officers. It was Mr Pepe who wrote the name ‘Sortino’ in Constable Williams’ notebook. Eventually Mr Pepe followed the ambulances back to the hospital in his vehicle. He was not certain but thought that the other vehicles left at about the same time. He did not think that any members of the group stayed back at the accident scene for half an hour or so as suggested by Mr Iacorossi. However, he said he did not really remember. When he arrived at the hospital he thought the injured people, other than the plaintiff, had already received treatment.
Whilst the group was waiting in the emergency area some members were discussing the condition of the plaintiff. The hospital wished to discharge the plaintiff and Mr Pepe and others objected to this. They thought he should be kept in hospital overnight for observation. The discussion with the hospital staff was heated. At this time the plaintiff was sitting on a bed near to where Mr Pepe and others were talking to the doctors and medical staff. Mr Pepe said the plaintiff “coughed, his eyes rolled back in his head and he fell back on the bed”. This put an end to the debate. The members of the group present at the discussion were immediately sent outside by the medical staff. The plaintiff was subsequently admitted to the intensive care unit.
Mr Pepe said that he stayed at the hospital overnight. Mr Iacorossi thought that Mr Pepe left at some stage. Nothing turns on that difference of recollection. At the hospital and after the collapse of the plaintiff the defendant said to Mr Pepe that the plaintiff’s condition was getting worse and that he, the defendant, did not want to be responsible for lying in such a situation. The defendant said it would be better to tell the truth.
Mr Pepe recalls speaking by telephone with Mrs Nicolosi of the Italian Consulate in Darwin. That was either late that night or very early the following morning. He was “almost certain” she came to the hospital the same night. That accords with the recollection of Mr Iacorossi and Mrs Nicolosi. The call was made after the plaintiff had collapsed. There may have been more than one telephone call.
Mr Pepe said that there was a conversation with Mrs Nicolosi, the defendant and Mr Iacorossi. It covered a number of topics. They discussed the condition of the plaintiff and it was explained that the authorities had been given a false story that the plaintiff was driving. Mrs Nicolosi advised that the best thing to do was to tell the truth. She told the group to discuss the matter with Mr Randazzo, the incoming Italian Consul, because he was a lawyer and knew the law in the Territory. He could give the defendant “a hand”. She also said they should go to the police and tell the truth.
Mr Pepe did not recall taking Mr Testa and Ms Nardi to a hotel room. He thought this was unlikely in the circumstances. He said they were in the waiting room for a brief period of time after they had been treated. He thought that both Mr Testa and his wife were present and heard a discussion regarding the defendant admitting that he was the driver of the vehicle. He said, “if they were not there, they must have been, you know, informed at a different time”. Mr Testa said this was not so.
Mr Pepe thought they spoke with Mr Randazzo on 15 August 1997 in the evening or the afternoon. Mr Pepe thought they saw Mr Randazzo in his office (it is more likely that this was at Casuarina Square) and then later at the offices of Territory Rent-a-Car. He repeated something that he had said on a number of occasions; namely that he did not have a precise recollection of times. He said he did not know whether it was the Friday or the Saturday and he did not know whether it was morning or afternoon. The evidence of Mr Randazzo suggests that it was the Saturday morning.
Subsequent to the discussion Mr Pepe, the defendant and Mr Randazzo went to the offices of Territory Rent-a-Car. There they completed an incident report form. That form became Exhibit P24. The date of the attendance can be fixed as Saturday 16 August 1997 by reference to that document. Mr Pepe completed much of the writing on the document and a representative of Territory Rent-a-Car, Karina Phelan, completed some. Mr Pepe completed the document from memory. He thought that he looked at a map to work out the location of the accident as being two kilometres east of Corroboree Park. Although there was a position for the driver’s signature on the form, the defendant did not sign. There was no explanation for this other than it was not thought necessary. However the defendant was named as the driver on the form which was completed in his presence.
In completing that document Mr Pepe had the assistance of Mr Randazzo acting as an interpreter. He recognised at that time that personal accident insurance had not been taken out and he completed the form accordingly.

At the time of hiring the vehicles Mr Pepe acknowledged on the contractual documents a liability for an excess payment of $1,000 in respect of any single vehicle damage. On that occasion he paid a deposit of $250. When they attended at the offices of the hire car company on 16 August 1997 Mr Pepe paid the balance of $750, being the amount due in respect of the excess.
Under cross-examination Mr Pepe said that at the time the group agreed to tell the truth and say that the defendant was the driver circumstances had changed since just after the accident. The group appreciated that the injuries to the plaintiff were now more important than the damage to the motor vehicle. It was put to Mr Pepe that it was a concern that there would be no insurance cover in relation to the plaintiff’s personal injuries. Mr Pepe responded:
“At that specific time I wasn’t really thinking in terms of insurance. It was not a problem at the time because, as I said before, I wasn’t really – I didn’t know that well the insurance condition … . At that specific moment I was really mostly concerned for Mr Sortino’s responsibility for the condition of Mr Carlo Costa who could have died as well.”
Mr Pepe said that the issue of insurance and the prospect of a claim for damages by the plaintiff was “really outside my thinking at the time”. He said he did not take that into account.
The third party submitted that Mr Pepe was in a dilemma at the scene of the accident and also at the hospital. He was, it was said, aware that the members of the group had declined personal accident insurance for the drivers when the contracts for hire had been entered into at the airport. Mr Pepe conceded that he was aware that such insurance would have covered the driver of a vehicle in the event that the driver suffered personal injury through his careless driving. This meant that Mr Pepe knew that the driver of the vehicle in the accident would not be covered by that insurance in respect of any injuries suffered in the accident. The third party therefore submitted that, at the accident scene, Mr Pepe and anyone he had informed had competing pressures. On the one hand whoever was the driver of the vehicle would not be covered by personal accident insurance. On the other hand if the driver was an unauthorised person then he may be liable for the damage suffered to the vehicle.
It was submitted that, at the accident scene, it was decided to name the plaintiff as the driver (as in fact was the truth of the situation according to the third party) because the damage to the vehicle was serious and an unauthorised driver may be liable for that damage. On the other hand none of the occupants of the vehicle including the plaintiff seemed to be seriously injured.
The third party submits that the situation changed when it was realised that the plaintiff was in fact seriously injured. Given that he would not be covered by personal accident insurance it was necessary to tell a lie and name the defendant as the driver in order to enable the plaintiff to recover.
This submission assumes that Mr Pepe (and others) had sufficient knowledge of the Australian legal system to be aware that an injured passenger would be able to recover compensation in respect of injuries suffered in a motor vehicle accident. In other words that the plaintiff would be able to recover damages or compensation if he was a passenger. That knowledge was not demonstrated in evidence.
However the real problem with the submission is that, when the issue of recovery for personal injury was raised with Mr Pepe and others in the course of cross-examination, they each denied that it had been part of the thought processes of those involved. Mr Pepe said it was “outside my thinking” and “I didn’t take it into account”. He and others made it clear that the focus was “the concern for Mr Sortino’s responsibility for the condition of Mr Costa who could have died as well.”
The concern of Mr Pepe, the defendant and others was not any entitlement the plaintiff may or may not have to compensation and/or damages but rather that a false story had been told when the injuries to the plaintiff were not apparent. When it became clear that the plaintiff was extremely seriously injured and may die it was essential to tell the truth.
Mr Pepe saw Mrs Nicolosi on a number of occasions. He attended at her house and he had meals with her. He thought it likely that on each occasion the defendant was present. He also thought that the accident and the consequences of the accident would have been a point of discussion on some such occasions. He thought that Dr Gagliardo might have been present as well on occasion. However, he did not remember Dr Gagliardo except by name. He was unable to picture Dr Gagliardo. Similarly, Mr Pepe was unable to recall Sister Molinari. He had no idea what role or function she took in the events apart from what he described as “the religious aspect”. He knew her name and that was all.
Mr Pepe has kept in contact with the defendant since the accident. They continued their friendship. Mr Pepe was aware that the defendant had come to Australia in the period leading up to the trial. He was told that by the defendant in a telephone conversation. They had intended to meet prior to Mr Pepe coming to Australia on this occasion but the commitments of each of them prevented that occurring. Mr Pepe asked the defendant whether he was coming to Australia for the purposes of the trial and was told that the defendant had decided not to. “He didn’t say if he was reluctant or not he just said that he was not coming”. He gave no reason and Mr Pepe did not ask for any reason.
Mr Pepe agreed that the concocting of a false story at the scene was a “very dishonest thing to do”. He said that it came to fruition jointly with the defendant. The two of them then explained to the others the defendant’s concern about responsibility for the damages to the car. Notwithstanding that, Mr Pepe maintained that he did not know what the consequences would be in regard to the defendant and he did not know that an insurance company may pay out a substantial amount of money that it would not otherwise pay if it had known the true position. He agreed it was “an incorrect decision” and he said that he had never done such a thing before and would never do it in the future. He said it was done on impulse.
Mr Pepe denied the suggestion that he had been involved in a “plan” to defraud an insurance company. It became clear that his concern was with the word “plan” which to him meant “an organised action in order to achieve a specific aim or objective”. He said there was no such plan. There was “something which was sort of improvised at the moment”.
Mr Pepe sought to minimise his role in the deception. He identified the proponents of the deception as himself and the defendant. Whilst he acknowledged that the concoction of a false story was dishonest he shied away from agreeing that it was done to defraud an insurer. He maintained that it was for the purpose of buying time. I do not accept that explanation but rather consider he was aware of the difficulties that would arise for the defendant and possibly himself because the defendant was an unauthorised driver. He sought to avoid that prospect by identifying the plaintiff as the driver of the vehicle. A necessary consequence of telling a false story as to the identity of the driver was that any liability that may have attached to the defendant would be diverted to someone else – in all likelihood an insurer.
Mr Pepe was active in promoting the false story at the scene and he, along with the defendant and the plaintiff, identified the plaintiff as the driver. Notwithstanding that attempt to minimise his involvement and to deny knowledge of the logical consequences of the deception I accept his evidence that the defendant was in fact the driver of the vehicle. I accept that the decision to identify the plaintiff as the driver was “improvised at the moment” as he claims. It was not thought through. It was motivated by a desire to protect the defendant. Neither that version of events nor the later version involved a consideration that the plaintiff or any one else may have a claim for damages or compensation for personal injuries arising out of the accident.
DR ELIO GAGLIARDO
Dr Gagliardo was present and working at the Royal Darwin Hospital on the evening that the plaintiff suffered his injuries. He was not personally attending the plaintiff but had heard the Italian language being spoken and offered his services as an interpreter. Dr Moore was attending to the plaintiff.
Dr Gagliardo gave evidence of the conflict between Dr Moore and the person described as an ophthalmologist or as a doctor and who was part of the touring group. This was Mrs Massaro. Dr Moore wanted to discharge the plaintiff and the Italian doctor was arguing that this was an inappropriate course. It was at that time that the plaintiff collapsed. He stopped breathing and was intubated. The plaintiff was removed for resuscitation. Dr Gagliardo said that when the plaintiff had been sent away:
“After I went out from the Resus area Mr Sortino approached me and – and told me that actually he gave a false statement declaring that Carlo was the driver, and the true statement was that he was the driver. At that stage he was quite stressed – and he explained to me why they did it.”
Dr Gagliardo was careful in giving his evidence in this regard. In cross-examination he said that the exact words used by the defendant were, “I was the driver”. However, in relation to the words “I don’t want to keep going with this false statement”, he observed that was not the exact expression used but “pretty close to the words”.
Dr Gagliardo said he remembered these incidents because the plaintiff suffered “locked in” syndrome. That is a rare condition. Also he had been endeavouring to mediate between Dr Moore and the Italian doctor. The whole situation was dramatic.
In cross-examination he agreed that the explanation as to why a false story had been told might have come at a later time. He was firm in his evidence that the defendant’s admission as to driving was made in the circumstances described. The reason given to Dr Gagliardo for the false story was that the defendant was afraid that the insurance would not cover the car “because Sortino was the driver, and so they gave a false statement for this reason”. This situation changed when the serious nature of the plaintiff’s condition was realised. The defendant said to Dr Gagliardo that he did not want to “keep going because Carlo is sick”. He said the situation had changed dramatically. He did not want to “keep going with the lie any more”. Dr Gagliardo said he remembered the defendant’s face and the defendant was “destroyed or devastated” and was telling Dr Gagliardo, “I was the driver”.
The admission by the defendant that he was the driver took place at a time when the defendant was anxious about the condition of the plaintiff and at a time when the prospect of a claim for damages or compensation to be made by the plaintiff appears not to have been mentioned by or to the defendant. His expressed concern was the seriousness of the injury and the fact that he had told a lie, rather than any concern about compensation or entitlements that may be available to the plaintiff should he survive.
Subsequent to the accident Dr Gagliardo spent time with Mr Massimo Costa, the defendant and Mr Pepe. He said that there were many issues discussed, but the most important issue was how to transport the plaintiff back to Italy if he was not able to breath on his own. Ultimately that was resolved because, after a period, the plaintiff was able to breathe without assistance. However, at this time there was much discussion on this topic. Dr Gagliardo did not recall any discussion regarding insurance or anything of that nature.
During these discussions there was no further talk of the defendant being the driver of the vehicle. After that issue had been clarified by the defendant in the circumstances described above all further discussion assumed that the defendant had been the driver eg he was critical of himself for being “stupid” in his driving. Thereafter the observations made by the defendant to Dr Gagliardo presupposed he had been the driver.
The evidence of Dr Gagliardo was significant. The third party did not allege that he was part of any conspiracy or that he consciously misled the Court. Dr Gagliardo met the members of the Italian group for the first time on the night of the accident and he did so in circumstances where he provided assistance at the emergency department of the hospital. He was not a treating doctor although he did, at one stage, conduct a neurological assessment of the plaintiff. It seems he did that for his own purposes. He had no reason to mislead the Court and there is no suggestion that he endeavoured to do so.
The submission of the third party was that his evidence was contaminated and largely reconstructed. I accept that some of it was reconstructed. For example his evidence as to the timing of his shift on that day or night was reconstructed, as was his evidence as to the time at which the plaintiff collapsed. He agreed that he had made assumptions and proceeded from them. He said, “I thought I was on day [shift]. Probably was wrong.” However he went on to say that, “I remember the important – what happened of importance in the situation, I remember well, because it was a dramatic situation.”
There were other things that he had wrong. This is as one would expect of a witness giving evidence a long time after the event. Notwithstanding those errors he was quite firm that the important events of which he gave evidence occurred as he described them and, in particular, that the defendant approached him as he left the resuscitation area and told him that he had given a false statement declaring that the plaintiff was the driver when the true position was that he had been the driver. I accept that in relation to that matter the events occurred as described by Dr Gagliardo.
A review of the evidence of Mr Pepe, Mr Iacorossi and Dr Gagliardo shows that each says he was involved in the decision of the defendant to admit that he was the driver. Mr Pepe said that the admission followed discussions between himself and the defendant at the hospital. Mr Iacorossi said that he told the defendant that he thought the defendant should tell the truth about who was driving. Dr Gagliardo gave evidence that the defendant volunteered that information to him. These claims are not inconsistent with each other. They reflect the fact that different witnesses were asked to recount their involvement in the process and they have done so. The acceptance of the evidence of one does not exclude an acceptance of the evidence of the others.
The effect of the evidence in this regard is that the defendant made a decision on the night of the accident to tell the truth and to admit that he was the driver. This decision was made at the hospital and in circumstances where the condition of the plaintiff had suddenly deteriorated. It was not made in the context of a possible claim for compensation or damages by the plaintiff. Indeed it was made at a time when at least some of the group thought that the plaintiff might die. The timing of this decision is not consistent with the suggestion made by the third party that a false story was created in order to enable the plaintiff, or possibly his dependants, to make a claim against an insurer. That was not a factor in the decision.
CARLO RANDAZZO
At the time of the accident Mr Randazzo was the incoming Italian Vice-Consul in Darwin. He said he was contacted on the morning of 16 August 1997 and as a result attended at the legal advice booth at the Casuarina Shopping Centre where he met the defendant, Mr Pepe and Francesca Petrocchi. It was submitted by the third party that Mr Pepe gave evidence that they “probably” met on the Friday. This is not so. Mr Pepe said in cross-examination “I don’t even remember the day if it was Friday or Saturday”.
At that meeting they discussed the circumstances of the matter in an area at the shopping centre. He was told that the plaintiff was in hospital and was seriously injured. The defendant informed him that the plaintiff was not expected to live.
The defendant told him that he had been the driver of the vehicle but a false statement had been made to the police at the site of the accident regarding the identity of the driver. The reason given for this was that the defendant had not been one of the drivers authorised to drive the vehicle by the rental company. The attending police had been told that the plaintiff was the driver.
At this meeting the defendant said to Mr Randazzo that he was the driver of the vehicle notwithstanding that he was aware that he would have to pay for the damage to the vehicle The defendant explained to Mr Randazzo that the accident occurred when a bottle fell at his feet. He had reached down to pick it up. The vehicle had drifted on to the gravel shoulder adjoining the roadway and when he tried to get the vehicle back onto the road he lost control and it rolled over several times. He also told Mr Randazzo that at some stage after the vehicle had veered off the road the plaintiff, who was in the front passenger seat, had grabbed the steering wheel. This is consistent with what Mr Testa said was put to Mr Testa by the defendant in a conversation at the hotel. As I have observed it is inconsistent with the submission that the defendant concocted a story to benefit the plaintiff as it suggests the plaintiff caused or contributed to his own misfortune.
Mr Randazzo recommended to the defendant that he should not make any further false statements, as it was an offence under Australian law to do so. He recommended that the defendant attend at the police station and change his statement to reflect the truth. He also recommended that he obtain independent legal advice.
At that meeting Mr Randazzo informed the defendant and Mr Pepe that the plaintiff may be entitled to “substantial insurance payments” if he lived. He informed them that this insurance only covered passengers and not the driver of the vehicle. What was meant by the expression “insurance payments” was not explored with Mr Randazzo. From the context he seems to be referring to payments under a scheme of compulsory third party insurance of motor vehicles. This conversation occurred after the discussion regarding the identity of the driver. If that be so, and I accept that it was, it could not have been Mr Randazzo’s advice regarding the entitlements of the plaintiff that led to any change in the version of events. Indeed by this time the defendant had already advised various people, including Mrs Nicolosi and Dr Gagliardo, that he had been the driver of the vehicle. The attendance upon Mr Randazzo was in part to seek assistance in relation to that very matter.
Mr Randazzo agreed that the prospect of the plaintiff being entitled to “insurance payments” if he lived was one reason for the defendant to correct the police record before he returned to Italy. He also thought it appropriate that the false statements made to the authorities be rectified in any event. He thought it important to tell the truth.
Later on the same day Mr Randazzo accompanied Mr Pepe and the defendant to the offices of Territory Rent-a-Car. With Mr Randazzo’s assistance and in the presence of the defendant the accident report was completed. That document named the defendant as the driver of the vehicle. Mr Randazzo recalled that Mr Pepe signed the form, but he could not recall whether the defendant did. He was taken to exhibit P24, which is the relevant form, and agreed that the place for the signature of the driver had been left blank. He could not remember any discussion regarding any need for the defendant to sign. Nor was there any discussion regarding the fact that a false statement had been made on an earlier occasion as to the identity of the driver. In response to counsel he said he did not think that was an issue for Territory Rent-a-Car and it was just a matter of correcting the police record.

In cross-examination Mr Randazzo was clear that the first time he was contacted was on the Saturday morning of 16 August 1997. He remembered he had been at work and had to go home to get changed to attend at the Casuarina Shopping Centre. His wife went with him. She is an Italian lawyer and he thought she might have been able to assist. They both spoke fluent Italian and his wife was trained in law in Italy.
Mr Randazzo and his wife spent part of the afternoon with Mr Testa and Ms Nardi. They met at the Rydges Plaza Hotel sometime after mid-day. They had a discussion there and then went to the Darwin Private Hospital where Mr Testa and Ms Nardi underwent a physical examination. Mr Randazzo said that the circumstances of the accident were discussed with Mr Testa but it was not a major topic of discussion. At that time Mr Randazzo was aware that a false statement had been made at the scene of the accident and that it was now being said by Mr Pepe and the defendant that the defendant was the driver of the vehicle. He said that his main concern was the criminal liability of the defendant. He did not give any attention to any issue of civil liability because he was then under the impression that the plaintiff may die. He said, “I really didn’t think too far ahead regarding Costa because I was of the belief that he would pass away”.
Mr Randazzo said that he did not ask Mr Testa or Ms Nardi whether they had made false statements concerning the identity of the driver. At the time his primary concern was their injuries. The prospect that they may have made false statements did not occur to him. The only false statement of which Mr Randazzo had been informed was that made at the scene and he had urged those directly responsible, being Mr Pepe and the defendant, to correct the situation. It is not surprising that it did not occur to him to raise the same issue with Mr Testa and Ms Nardi.
That meeting between Mr Randazzo and his wife and Mr Testa and Ms Nardi is likely to be the same meeting which Mr Testa thought occurred on 15 August 1997. Neither Mr Testa nor Mr Randazzo referred to there being more than one such meeting at which both couples were present. Mr Testa, in his evidence, was uncertain as to the date. Reference to the Darwin Private Hospital notes confirms the attendance at that institution was on 16 August 1997, consistent with the evidence of Mr Randazzo. On the balance of probabilities I find that there was only one meeting between Mr Testa, Ms Nardi and Mr and Mrs Randazzo and that occurred on 16 August 1997 not 15 August 1997 as Mr Testa indicated.
Mr Randazzo said there was no detailed discussion with Mr Testa as to who was the driver. He thought that he mentioned the topic at Casuarina Shopping Square when they had coffee there after visiting the hospital in the afternoon. He simply asked who was the driver and Mr Testa identified the defendant. His main purposes in seeing Mr Testa and Ms Nardi on that occasion were to facilitate a medical checkup, to see how they were generally and to endeavour to arrange their departure from Australia back to Italy. He did not ask any questions regarding why the story had changed. He subsequently spoke with Mr Testa by telephone when Mr Testa had returned to Italy. At that time Mr Testa seemed surprised that false statements had been made to the police regarding the identity of the driver. This is consistent with the evidence of Mr Testa as to his state of knowledge when he left Australia to return to Italy.
Included in the information provided to Mr Randazzo, as he recalled it, was the fact that two of the vehicles not involved in the accident went on to Kakadu from the accident scene and did not return to Darwin. That is inconsistent with the evidence of those directly involved and is in error. Whether that error stems from misinformation provided to Mr Randazzo or from a misunderstanding on his part cannot be determined. It does not impact upon his reliability on other matters.
It was submitted by the third party that Mr Randazzo had somehow placed himself in a position of conflict. I reject this submission. He assisted the plaintiff’s personal representatives, the defendant and the third party. Mr Randazzo assisted the plaintiff by arranging legal representation for the brother of the plaintiff, Massimo Costa, and attending as an interpreter. He provided those legal representatives with a statement and he assisted in the making of arrangements for the plaintiff to travel to Italy. He also attended to give evidence in these proceedings when requested. He assisted the defendant by arranging separate legal representation for him and by attending as an interpreter. Mr Randazzo also assisted the defendant by attending upon him and Mr Pepe and assisting them at the office of Territory Rent-a-Car. Further, he assisted the defendant in arranging an appointment to see a police officer to correct the police record as to the identity of the driver and by arranging for Sister Molinari to attend with him. When the defendant attended in Darwin at the end of May or in early June 2000 Mr Randazzo assisted him by acting as an interpreter on two occasions when he consulted with a solicitor and with a barrister. On that occasion the defendant had with him an Italian lawyer. Mr Randazzo assisted others such as Mr Testa, Ms Nardi and Mrs Petrocchi in such things as attending medical appointments and arranging for them to return to Italy. Finally he assisted the third party by making himself available for interview with the legal representatives of the third party and providing them with a statement.
Further it was submitted that Mr Randazzo was “very much allied with the plaintiff’s cause” and he was “very much in the plaintiff’s camp”. Whilst Mr Randazzo may have had sympathy for the plight of the plaintiff arising from the serious injuries suffered by him, a sentiment which was also expressed by the third party through its counsel, he did no more than assist each party to the proceedings and also the various other Italian nationals affected by the proceedings in a manner which may have been expected of a person in his position.
At the commencement of his evidence Mr Randazzo corrected assertions made in his written statement. He had previously stated that he was initially contacted by Mrs Nicolosi but changed that to there having been a communication from Mrs Nicolosi which was passed on to him by his mother. He said he confused the initial contact as being a direct conversation rather than the passing of information. He said the change in the statement followed a discussion with his wife when he mentioned the point. Mr Randazzo accepts that he was in error in this regard. In the circumstances it is not a matter that causes me to doubt the reliability of Mr Randazzo in relation to other matters. Contrary to the submission of the third party I did not find Mr Randazzo to be “defensive”. His evidence was given in a manner designed to assist the Court. He was careful in his responses to questions and, when invited to do so, endeavoured to reconstruct his thought processes at the relevant time.
The evidence of Sister Molinari was that when she attended at the police station with Mr Pepe and the defendant in order to correct the identity of the driver given at the scene, they were met by a police officer who provided them with a form to correct and sign but who made no further enquiries. Given the seriousness of the accident this is somewhat surprising. Sister Molinari understood that Mr Randazzo had made the arrangements. Mr Randazzo was cross-examined about this and he agreed that he organised an appointment for the defendant to attend and correct the statement. He arranged the appointment over the telephone and he did not ever meet the officer concerned. He took no further part in the matter and said, “as to what further action or not the police might take, I really left to them.” It was not suggested to him in cross-examination that anything improper had occurred on that occasion and I reject the submission that he was “defensive as to the details” of the arrangements he had made. This was an example of Mr Randazzo carrying out his duties as he saw appropriate.
I accept the evidence of Mr Randazzo. Whilst there were some errors in his evidence I am satisfied that he was a reliable witness on the major issues. I accept that he saw the defendant and Mr Pepe for the first time on Saturday 16 August 1997, and similarly he met Mr Testa and Ms Nardi for the first time that afternoon. I accept that the defendant and Mr Pepe advised Mr Randazzo at the meeting on the Saturday morning that the defendant had been the driver at the relevant time. I accept that Mr Randazzo then told them that the plaintiff might have entitlement to compensation should he live.
The third party criticised the plaintiff for failing to call the wife of Mr Randazzo to give evidence. There was no evidence called or inference available to suggest that she was not equally available to the third party to call. I draw no adverse inference against either party arising from the fact that she did not give evidence.
MARIELLA SANTA NICOLOSI
Mrs Nicolosi gave evidence that she was a representative of the Italian Consul in Darwin at the time of the accident. Mr Randazzo was in the process of taking on the role as the Italian Consul.
Mrs Nicolosi said that Mr Pepe contacted her in her official capacity. This was on “the evening of 14 August 1997”. She was not sure whether she spoke to the defendant on that occasion. The calls related to the health and treatment of the plaintiff and concerns that were being expressed as to the quality of care he was receiving. She was not sure whether there was one telephone call or two before she went to the hospital. At the time of her arrival Mrs Nicolosi said the plaintiff was in a coma at the intensive care unit. Mrs Nicolosi recalled that when she received the telephone call the plaintiff had already suffered a sudden deterioration and that was the basis of the concern. This would indicate that she arrived after 8.45pm being the time that the plaintiff collapsed and entered a coma according to the Royal Darwin Hospital notes. It was not “still daylight” as she now recalls events.
At the hospital she met with Mr Pepe and the defendant, along with other Italian tourists from the tour group. Mrs Nicolosi noted that the defendant was in a state of shock and he kept making mistakes in the telephone number when he tried to call the plaintiff’s brother in Italy.
Mrs Nicolosi said that she was not aware of any change in the story about who was driving when she was at the hospital on the night of Thursday 14 August 1997. She said that when she was told about this it was at a later time and she suggested that “they” should consult with a solicitor and confide in Mr Randazzo.
She thought that she spoke with Mr Randazzo or his mother (the latter being the most likely) regarding the accident either on the Thursday night or possibly on the Friday morning. This does not sit comfortably with the recollection of Mr Randazzo who was clear that the first he heard of the accident was on the Saturday morning from his mother. Mr Randazzo is likely to be correct in this regard because he then met the defendant and Mr Pepe at Casuarina Square. They went on to Territory Rent-a-Car and that attendance is fixed by Exhibit P26 as occurring on Saturday 16 August 1997. Perhaps the explanation for the delay between Mrs Nicolosi contacting the mother of Mr Randazzo and Mr Randazzo receiving the message is that there was delay in the message being passed from the mother to the son. The evidence of Mrs Nicolosi is not necessarily in conflict with that of Mr Randazzo in this regard.
Mrs Nicolosi was uncertain as to the date upon which the defendant told her “the entire story about the accident and about the lie”. She was firm in her recollection that it did not occur on the Thursday night. By a process of reconstruction she thought it must have been the Friday night following the accident. She thought it occurred at her home. Mrs Nicolosi said that she had a recollection of talking with the defendant and Mr Pepe at the hospital but that she could not remember Mr Iacorossi. She said she recalled that Mr Pepe had some “generic questions regarding the insurance of the car they had hired” and she referred Mr Pepe and the defendant to a free community legal advice session. This occurred on the Thursday night. Again it is clear that the focus of attention was the damage to the vehicle rather than any potential for a claim for compensation for the injuries suffered by the plaintiff.
When the defendant did tell Mrs Nicolosi of the change of story regarding the identity of the driver he did so by clearly stating that he was the driver at the time of the accident and that he had taken over driving from the plaintiff. He told her that after the accident he thought that all of the occupants were “well”. He told her that he lied “because he thought that Mr Costa might have been the only person entitled to drive the car according to the hire company agreement.” He then said that he wanted the truth to come out “regardless of the consequences”.
Originally Mrs Nicolosi thought this conversation with the defendant was later than Friday 15 August 1997. It was by a process of reconstruction that she determined that it “probably” occurred on the Friday. However she was still uncertain.
It is not surprising that Mrs Nicolosi was vague about the timing of events and that she resorted to reconstruction as she frankly acknowledged. Insofar as her recollection differs from that of Mr Iacorossi and Mr Pepe in relation to the conversation taking place on the Thursday night regarding the identity of the driver I find, on the balance of probabilities, that such a conversation did take place. It may be that it did not assume great importance for Mrs Nicolosi until it was repeated the following night. She regarded herself as handling a crisis at the hospital, which was, to a degree, overwhelming. There were other pressing issues commanding her attention, including: the serious condition of the plaintiff; the ongoing attempts to contact the family of the plaintiff before the matter was reported in the Italian media; and how the family should be informed of the occurrence without unduly alarming the mother.
Mrs Nicolosi said that on the Thursday night there were discussions about insurance but she was not sure whether they were “about the car or they were about the travelling insurance … because I wasn’t really listening to that … in my mind I wasn’t told of the circumstances, so I wasn’t tuning to – to those comments.” At another time she said the party was concerned about the hospital expenses and who would pay them. Whether this was also related to travel insurance or some other insurance was not made clear. Whenever the conversation first occurred it is clear that Mrs Nicolosi advised the defendant and Mr Pepe that they should obtain legal advice at the free community legal advice session and that they should also inform Mr Randazzo of the problem. They followed that advice and saw Mr Randazzo on the Saturday morning.
Whilst Mrs Nicolosi was at the hospital on the Thursday evening she was hopeful that the plaintiff would come through the medical ordeal. She was positive about the outcome but said that the defendant was fearful that the plaintiff would die and she described him as being a “pessimist” throughout. She said he was “alarmed” by the sudden deterioration. He seemed to be in shock. This is consistent with the evidence that the defendant and others were concerned about the serious condition of the plaintiff and the prospect of his death rather than any claim he may have for compensation if he was not identified as the driver.
When she arrived at the hospital Mrs Nicolosi was met by many more people than she had expected. She said she was “surprised”. She recalls Mr Pepe and the defendant. Mrs Nicolosi had difficulty remembering Mr Iacorossi. She did not think that she had been in his presence for an hour or so on the night of the accident. However she did have some recollection of him. It seems she initially thought that he might have been the plaintiff when he was pointed out in the photograph Exhibit P11. Again it is not surprising that she might not specifically remember him given the number of people she met and dealt with that night. I accept the evidence of Mr Iacorossi, supported as it is in this regard by Mr Pepe, that he met and conversed with Mrs Nicolosi at the hospital on the night of the accident.

THE EXPERTS

Each party called an expert in accident reconstruction to assist in determining the issue of who was the driver of the vehicle at the relevant time. The expert called by the plaintiff, Christopher Hall, examined the available evidence and concluded that he was unable to determine who was the driver or who was the passenger. However he concluded from the location of the damage to the vehicle and the positioning of the injuries on the plaintiff and the defendant, that it was “much more likely that Mr Costa was the passenger and Mr Sortino was the driver.” In this regard he focused attention upon the injuries to the plaintiff being “left sided” and those to the defendant being “right sided”. Whether that was so was the subject of much cross-examination.
Michael Griffiths, who was called on behalf of the third party, agreed with Mr Hall that the main impact suffered to the vehicle was at the left front corner. The experts were also in general agreement as to the forces involved upon the occupants of the vehicle. However it was the conclusion of Mr Griffiths that “the evidence is sufficient to show that Carlo Costa must have been the driver.” He based this opinion principally upon the position of the “seat belt graze” identified on the plaintiff’s front lower torso. That injury was identified by Dr Michael Moore who gave evidence based upon his notes rather than his memory that, on examining the plaintiff on his entry to hospital, he observed a “seat belt graze at the left costal margin”. He was cross-examined regarding what he had recorded and he described it as a graze as distinct from a laceration or a bruise. The presence of such a mark is crucial to the opinion expressed by Mr Griffiths as to the identity of the driver.
I note in passing that each expert admitted to errors or misunderstandings in their reports and conclusions. In particular Mr Griffiths made a significant change to his opinion following the evidence of Mr Hall. He agreed with Mr Hall that the rollover involved the left side of the vehicle travelling over the right side of the vehicle. This was contrary to his earlier reconstruction of events. He acknowledged he had made an error and said that he had “incorrectly visualised the vehicle”. He passed this off as irrelevant to his final conclusions. Indeed that may be so but such a significant error gives rise to concern as to the reliability of the conclusions drawn in other areas.
Mr Griffiths admitted to other errors. In particular he acknowledged what he agreed was a fundamental “error as to the entrapment of bitumen and gravel between the tyre and the rim on the left side of the vehicle”.
Whilst both experts endeavoured to assist the Court in the end I found that their evidence was not of a great deal of assistance in determining who was the driver and who was the front seat passenger.
Mr Hall did not suggest a definite conclusion but rather felt that it was more likely that the plaintiff was the passenger. This was because of the location of the injuries suffered by each of the plaintiff and defendant. The plaintiff suffered left orientated injuries and the defendant right orientated injuries. Also of significance in this regard was the lack of injury suffered by each to the opposite side of the body. There was a good deal of debate as to whether or not the injuries were in fact left and right sided as claimed by Mr Hall. Mr Nosworthy pointed out that the injuries in both cases were relatively minor. The very serious consequences of the injuries suffered by the plaintiff did not follow from a serious head injury.

The injuries, which Mr Hall claimed were suffered by the plaintiff and were left sided, are detailed in his report. An examination of those suggests that only some are left sided. These are an abrasion to the left shoulder, an abrasion to the left (but front) lower chest region and a lump on the top of the left hand. There can be no certainty as to what caused these injuries and one suggestion made by the third party was that the flailing of the limbs of one or other of the front seat occupants might have caused some of the injuries in the course of the rollover. The only injury specifically identified as being on the right side of the plaintiff seems to have been to the right shin. This was not explored with the witnesses. Having regard to other evidence relating to the lower limbs this injury may have been caused by contact with the underside of the front dash area.
In relation to the defendant Mr Hall recorded right-sided injuries and no left-sided injuries save for a haematoma over the left shin. There was a large haematoma in the right parietal region, a laceration to the right elbow and a sore right shoulder. Save for the haematoma over the shin the injuries were all right sided. Again other explanations were available for the injuries if one assumed that the defendant was in the passenger seat. Flailing was again mentioned.
It can be seen that in a general sense the injury pattern for the plaintiff was left sided and that for the defendant right sided. Equally important they each had a lack of relevant injury on the opposite side of the body. However there are explanations available for these circumstances. Whilst I agree these factors may tend to support the view that the defendant was the driver and the plaintiff the passenger, they are indications only and far from conclusive.
In relation to the laceration suffered by the plaintiff to the frontal region of the skull there can be many causes for such a laceration in a rollover of the kind in which the plaintiff was involved. There was ample opportunity for such a laceration to be caused in the rollover if the plaintiff were seated in the front passenger seat. The forces arising out of the rollover would have directed the plaintiff towards the badly damaged and indented left front roofline. If he had been in the driver’s seat there was opportunity for the injury to be caused by collision with the damaged rib of the roof liner (although I accept the evidence of Mr Hall that at the time he saw it the rib was readily moved and was unlikely to cause such an injury). Mr Griffiths said there were many other parts of the vehicle that may have come into collision with the forehead of the plaintiff in the course of the rollover. In my opinion the opportunities for such an injury to occur were greater if the plaintiff was located in the front passenger seat. However the injury could have been suffered if he was in the driver’s seat.
On the other hand the opinion of Mr Griffiths that the plaintiff was the driver centred upon the location of a “seat belt graze” at the “left costal margin”. Despite the fact that the injury was described as a “seat belt graze” in the hospital notes of Dr Moore I am not prepared to accept that this was necessarily so. That description was provided in circumstances where the plaintiff had informed Dr Moore that he was the driver of the vehicle. It was not an unreasonable conclusion for Dr Moore to attribute an injury in that area to a seat belt graze in those circumstances. In my opinion the injuries suffered by the plaintiff may equally have been caused by the plaintiff being seated in the left front passenger seat and that area of his body coming into contact with the left door, or part of it, during the course of the rollover. Both experts conceded this possibility. Mr Testa, who was seated in the rear left passenger seat, suffered an injury to approximately the same area of the body. He demonstrated this in the witness box. Whilst Mr Testa was unrestrained at the time of the accident and the front seat passenger was wearing a seat belt, this difference was not sufficient to exclude injury occurring to the plaintiff in this manner.
There was much debate as to the relative loadings on the left front seat belt and the right front seat belt and what that might mean. The experts were agreed that both seat belts had been loaded in a way which confirmed they were being worn at the time of the accident. Argument centred upon whether one seat belt was more heavily loaded than the other was and, if this be accepted, whether it was more likely that a “seat belt graze” would be caused to the occupant of that seat. I found this debate unhelpful. In the circumstances of this matter there were so many variables applicable to the situation that it cannot reliably be concluded that one seat belt, even if it be more heavily loaded than the other, was more likely to cause a seat belt abrasion to a particular person seated in that location.
Further, I regard the finding of blood on the doorframe on the driver’s side of the vehicle as being of little assistance. Mr Roberts who came across the accident scene shortly after the occurrence noted this blood. He indicated that there was a small smear of blood on the top of the doorframe. There was no explanation as to how this blood got there. It may have come from someone opening the door, the laceration on the right side of the head of the defendant, the laceration to his right elbow, the wound to the head of the plaintiff or from some other source.
There are difficulties with the theories propounded by each of the experts. To my mind the expert evidence is of limited assistance in determining who occupied which seat in the front compartment of the accident vehicle.
OTHER SUBMISSIONS
It was the submission of the third party that Mr Pepe was aware of the insurance ramifications of the accident at all material times. It was said that Mr Pepe was therefore placed in a dilemma at the scene of the accident. If the defendant was identified as the driver of the vehicle there was a potential liability resting upon him for the damage to the vehicle. On the other hand if the plaintiff (or another authorised driver such as Mr Testa) was identified as the driver of the vehicle he would, in the circumstances, be unable to claim damages or compensation in respect of injuries suffered by him.
It was submitted that the plaintiff, who it was said was in fact the driver, was to be identified as the driver because the potential liability of the defendant appeared to be the most pressing problem at the time. It was only later when the condition of the plaintiff deteriorated that the story was changed. It was then changed to falsely claim that the defendant was the driver to allow the plaintiff to recover damages or compensation in respect of his injuries.
There are many difficulties with this scenario. Principal amongst them is the evidence of the witnesses Testa, Pepe and Iacorossi which, in relation to the key issues, I accept. Their evidence is supported in material aspects by the evidence of Dr Gagliardo, Mr Randazzo and, to some extent, by Mrs Nicolosi.
I am not satisfied that Mr Pepe or the defendant was at any relevant time aware of the ramifications for a personal injuries claim of the plaintiff being identified as the driver of the vehicle. Whilst he had knowledge that personal accident insurance had not been taken out on behalf of the drivers of the vehicles and that avenue of cover was not available there was no suggestion that Mr Pepe, or any other relevant person, was aware that the driver would not be covered by some other insurance (eg travel insurance as raised by Mrs Nicolosi) or a statutory Motor Vehicle Compensation Scheme. On the other hand there was awareness that the defendant may have a problem in relation to damage to the vehicle arising out of the fact that he was an unauthorised driver. There was no dilemma of the kind suggested.
Even if Mr Pepe or one of the other persons present at relevant times knew or suspected that the driver of the motor vehicle may not be able to recover damages or compensation in respect of injury suffered in the accident, I accept that this was not a factor that influenced the members of the group when it was agreed to identify the defendant as the driver. The motivation for that was the desire to tell the truth in circumstances where the plaintiff’s injuries were recognised to be serious and life threatening.
It must be remembered that this was a disparate group. Other than the plaintiff and the defendant, the main members of the group for present purposes did not know each other and have had little or no contact since the accident. This is not consistent with a group that is said to have bound together to firstly tell a lie and then perpetuate the lie. It is one thing to tell a lie on the spur of the moment and for a short time thereafter, but quite another to travel from Italy to Australia to repeat a lie under oath. This is particularly so when the possible benefit to flow from that lie is to a person who is hardly known to the supposed liar and further where there is no benefit flowing to the person who is to tell the lie under oath. In the event that the lie is discovered civil and criminal consequences may follow. The risk is great. The third party made it clear that it alleged actual fraud on the part of some witnesses. I reject the invitation to make that finding. Indeed I accept the evidence of each of the witnesses that the defendant was driving the vehicle at the relevant time.
It was submitted by the third party that once it had been decided by the defendant to tell a lie as to who was driving the vehicle the fact that the defendant repeated that story amounted to no more than him maintaining the position he had adopted. The fact that the defendant admitted to Dr Gagliardo, Mr Randazzo, Sister Molinari, Mrs Nicolosi, the police, the officers of Territory Rent-a-Car and others that he was the driver were all examples of him repeating the lie which he had decided to adopt. Such repetition did not add any weight to the defendant’s claim to be the driver.
If one accepts that the defendant and others were telling a lie that submission may be correct. However, as I have indicated, I do not regard the defendant as telling a lie when he admitted to being the driver of the vehicle. In so finding I have not relied upon the repetition by the defendant of the assertion that he was the driver. I have accepted the accounts of those witnesses who gave direct evidence of what occurred at the time of the accident and at the hospital.
It was submitted by the third party that various witnesses have not been called by the plaintiff in circumstances that give rise to an “inference of the Jones v Dunkel variety”. The witnesses to whom that submission related were Ms Nardi, the occupants of the other vehicles and the defendant. It was submitted that these people were “all in the camp” of the plaintiff. Why that should be so was not made clear.
The defendant was obviously not in the camp of the plaintiff. He is being sued by the plaintiff in the Italian courts. He filed a defence denying liability for the plaintiff’s claim in the present proceedings even though he conceded he was the driver. In addition there is evidence before me that the third party paid the legal fees of the defendant for the period 27 April 1998 to 17 December 1999. It also obtained statements from the defendant dated September 1998 and November 1998. Of course there were issues between the defendant and the third party at the trial – he continues to seek relief against the third party. In the circumstances I do not accept that the defendant is in either camp.
The evidence in relation to Ms Nardi was that she was unwilling to come to Australia. She was not available to either party. In 1999 the representatives in Italy of the third party informed the solicitors for the third party that Ms Nardi “will definitely not be able to travel to Australia”. In the course of the trial I received intimation through counsel for the plaintiff that Ms Nardi would be willing to give evidence by video link but on certain terms and conditions imposed by her. I held that the suggested conditions were unacceptable and declined to receive her evidence on that basis. In all of the circumstances I do not see Ms Nardi as being in either camp. The mere fact that her husband gave evidence in the case for the plaintiff does not alter that position.
As to the remaining occupants of the other three vehicles (excluding Mr Pepe and Mr Iacorossi who were called) I have had no explanation from any source as to why they have not been called. Some may not have been in a position to observe the occurrence and others may have only provided cumulative evidence. In the absence of any information regarding what evidence they could give I am unable to determine whether it would be natural for one party or the other to call any such witness. Further I am unable to find that any such witness could be regarded as being so firmly in the camp of one party as to make it unrealistic for the other party to call him or her.
Even if the submission of the third party is correct and I should draw an inference arising from the failure of the plaintiff to call the remaining occupants of the other vehicles I do not see this as having any impact on the outcome of these proceedings. Indeed how the drawing of any available inference would affect the outcome was not developed by counsel in submissions.

CONCLUSIONS

In this matter I find that the defendant was the driver of the vehicle at the time of the accident. The plaintiff occupied the front passenger seat at that time.
The accident occurred when the defendant became distracted by a falling water bottle. He was negligent in that he failed to maintain appropriate attention to his driving and he failed to keep the vehicle under proper control. I note there was no submission to the contrary of a finding that the driver was negligent in the circumstances.
The third party has pleaded that, if the defendant was the driver of the vehicle at the relevant time, the plaintiff caused or contributed to his injuries by his own negligence. This allegation was not pressed with any vigour at the hearing and was not the subject of submissions at the conclusion of the evidence. It was not abandoned.
There was no direct evidence upon which a finding of contributory negligence could be made. There was some suggestion that the defendant had said to others that the plaintiff had grabbed hold of the steering wheel but there was no direct evidence to support that. The defendant did not give evidence. Mr Testa did not see that event occur. In the circumstances the allegation that the plaintiff caused or contributed to his injuries by his own negligence has not been made out.
As a result of the accident the plaintiff suffered personal injuries, loss and damage. Those matters are to be considered in a separate hearing.
There will be judgment for the plaintiff against the defendant for damages to be assessed.
In the proceedings between the defendant and the third party there is no dispute by the third party that the accident occurred or that, at all material times, the vehicle involved was a Territory motor vehicle within the meaning of s 4 of the Motor Accidents (Compensation) Act. I find that the defendant is a person liable to pay damages in respect of the injury of the plaintiff as a result of an accident that occurred in the Northern Territory and at the time of the accident the defendant was in control of a Territory motor vehicle. I therefore declare that the defendant is entitled to be indemnified by the third party to the extent of his liability to the plaintiff.
I will hear the parties as to the form of orders and as to the issue of costs.

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