Coull by his joint next friends Sheila Coull and Lorna Ann Cross v Makings - [2010] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS -v- MAKINGS [2010] WADC 31

CORAM: DAVIS DCJ

HEARD: 16-20 FEBRUARY; 12 JUNE; 19-20 NOVEMBER; 3 DECEMBER 2009 & 15 FEBRUARY 2010

DELIVERED : 17 MARCH 2010

FILE NO/S: CIV 710 of 2004

BETWEEN: ANDREW WEIR COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS
Plaintiff
AND
COREY PAUL MAKINGS
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Contributory negligence - Assessment of damages - Alleged illegal earnings - Plaintiff subject to an order pursuant to Guardianship and Administration Act 1990 (WA) - Whether to order judgment sum to be paid direct to the plaintiff rather than the Public Trustee - Public Trustee's fees - Turns on own facts

Legislation:

Credit (Administration) Act 1984, s 12, s 23
Guardianship and Administration Act 1990
Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Rules of the Supreme Court 1971, O 70 r 12

Result:

Liability apportioned 70/30 in plaintiff's favour
Judgment for plaintiff following apportionment in the sum of $879,165.50

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: K N Allan

Case(s) referred to in judgment(s):

Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 55
B v McM (1987) 8 SR (WA) 36
Baitis v Mills [1968] VR 583
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239
Brownbill v Kenworth Truck Sales (NSW) Pty Ltd (1982) 39 ALR 191
Chapman v Katheappa [2002] WADC 47
Den Hoedt v Barwick [2006] WASCA 196
Gorman v Scofield [2008] WASCA 78
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Hickey v Kominatos, unreported; SCt of NSW; Begg J; 30 July 1971
Hughes v Grogan [2007] QSC 046
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Kschammer v RW Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Le Bagge v Buses Ltd [1958] NZLR 630
Le Brun v Joseph [2006] WADC 200
Lee v McClellan (1995) 127 FLR 383
Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Manley v Alexander (2005) 223 ALR 228
Meadows v Ferguson [1961] VR 594
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Morris v Zanki (1997) 18 WAR 260
Mulvihill v Frankel, unreported; SCt of SA; Olsson J; 6 October 1997
Neumann v The Ship Pelsaert [1999] WASC 166
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Ross v Profile Packaging Pty Ltd [2008] WADC 8
Scofield v Gorman (2006) 44 SR (WA) 212; [2006] WADC 93
Sibley v Kais (1967) 118 CLR 424
Smith v Hanrahan [2006] WADC 20
Smith's Newspapers Ltd v Becker (1932) 47 CLR 279
Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178
Taylor v Walawski, unreported; FCt SCt of WA; Library No 8992; 9 August 1981
Yoo v Allco Steel Corporation Pty Ltd, unreported; SCt of NSW; Giles J; 17 June 1998

DAVIS DCJ: On a Saturday afternoon on 3 October 2002, the plaintiff, Mr Coull, drove his blue four wheel drive Holden Rodeo utility or "ute" to do some shopping at an electrical retail store in Port Kennedy, a suburb south of Rockingham. He then drove his ute back to his home in a northerly direction along Ennis Avenue.
Ennis Avenue is a dual carriageway, with a median strip in the centre of the carriageway separating two lanes of north bound and two lanes of south bound traffic. The speed limit for vehicles on Ennis Avenue was 100 kilometres per hour.
Mr Coull claimed that he was driving in the right-hand lane of the two lanes of the northbound carriageway of Ennis Avenue when Mr Makings, driving his black Ford Falcon, turned left from Willmott Drive into Ennis Avenue. Immediately after entering Ennis Avenue, Mr Makings then pulled out into the right-hand lane, in front of Mr Coull. Mr Coull went to change lanes into the left-hand lane in order to overtake Mr Makings. At the same time Mr Makings also changed lanes into the left‑hand lane. As both vehicles moved into the left-hand lane, Mr Coull's ute just clipped the left-hand rear of Mr Makings' Ford Falcon. As a result of this contact, Mr Coull's ute left Ennis Avenue and collided into a tree.
Mr Coull sustained serious injuries, including head injuries and a cerebral infarction following the traumatic dissection of his left carotid artery. Mr Makings was not injured and there was only minor damage to the left-hand rear tail light of his Ford Falcon.
Mr Coull claimed damages for his injuries, alleging that the accident was caused by Mr Makings' negligent driving. Mr Makings alleged that the accident was caused or contributed by Mr Coull's own negligence.
At issue in this case is both liability and quantum.

The delay in the delivery of this judgment

Mr Coull's affairs had been handled by his next friends, his mother and sister, pursuant to an order made by the State Administrative Tribunal ("SAT"), under the Guardianship and Administration Act 1990 (WA). The terms of that order had been varied over time. On 12 September 2007 an order was made by SAT appointing Sheila Coull, Mr Coull's mother, as limited administrator of Mr Coull's estate with the function to seek legal advice on his behalf and bring and defend actions, suits and other legal proceedings in his name and if appropriate to settle the same.
At the trial of this action in February 2009 Counsel for Mr Coull advised that an application would be made for a discharge of that order, in which case there was no reason why any judgment sum should not be paid to Mr Coull. If, however, the order remained in place Mr Coull would need to lead some evidence relating to the amount of Public Trustee's and fund management fees. These fees were disputed by Mr Makings.
At a hearing on 12 June 2009 counsel for Mr Coull advised that an application for a discharge of the order had been made to the SAT. I was specifically requested by the parties not to deliver my decision until the outcome of the application was known.
On 2 November 2009 SAT made an order, the effect of which was to refuse the application, by confirming the order made on 12 September 2007. There will be a further review of the order on 2 November 2010. Following this order made by SAT, further directions hearings took place in this matter and a further hearing relating to the Public Trustee's fees took place on 15 February 2010.

Liability

The issues

Mr Coull claimed that the accident was caused by Mr Makings' manner of driving by failing to keep a proper lookout, entering Ennis Avenue when it was unsafe to do so, then entering into the right‑hand lane of Ennis Avenue in which Mr Coull was driving when it was unsafe to do so and, finally, changing lanes again back into the left‑hand lane when it was unsafe to do so.
Mr Makings claimed that he made the left hand turn from Willmott Drive into Ennis Avenue after having ensured that it was safe to do so. Mr Makings claimed that he had, after indicating his intention to do so, commenced to move into the left-hand lane in order to avoid Mr Coull's ute which was travelling at high speed approaching the rear of Mr Makings' Ford Falcon in the same lane.
Although not specifically pleaded in the defence, the case run by Mr Makings at trial was that Mr Coull had been in the left-hand lane of Ennis Avenue at the time that Mr Makings made his left-hand turn from Willmott Drive into Ennis Avenue. Another matter which had not been specifically pleaded, but which counsel for Mr Coull in opening at the trial made clear was in issue, was that if Mr Coull's ute was, as Mr Makings said, in the left‑hand lane, then Mr Makings had crossed the path of Mr Coull and turned directly into the right-hand lane contrary to reg 113 of the Road Traffic Code 2000. Both counsel for Mr Coull and Mr Makings acknowledged these matters were in issue, and these were fully canvassed at trial.
The factual issues relating to liability, including contributory negligence, were:
1.the position of Mr Coull's ute when Mr Makings entered Ennis Avenue – was Mr Coull's ute in the left-hand lane or the outside (right‑hand) lane of the northbound carriageway?;
2.Mr Makings' manner of changing lanes;
3.Mr Coull's speed. In opening submissions filed on behalf of Mr Coull it was admitted that Mr Coull was travelling 110 kilometres per hour in a 100 kilometre per hour zone. Mr Makings submitted that Mr Coull was travelling faster than 110 kilometres per hour.
Other than Mr Coull and Mr Makings, there were no witnesses who saw the collision. Neither party called any expert evidence. Three witnesses gave evidence as to the manner of Mr Coull's driving and the lane in which he had been driving along Ennis Avenue shortly before the accident. There was also the evidence of a police officer who attended the scene after the accident, taking measurements and photographs. For reasons which will become apparent when I review Mr Coull's evidence, I will first review the evidence of these witnesses, before dealing with the evidence of Mr Coull and Mr Makings.

Evidence of Lucas Felsted

On 3 October 2002 Mr Felsted was driving, with his wife, Leah, as his passenger, back to Perth after a holiday in Margaret River. Mr Felsted was driving along Ennis Avenue in a northerly direction, south of the accident scene.
Mr Felsted gave evidence that he came to a section of Ennis Avenue which was marked with cones and appeared to be an area of road works, although he did not actually see any road works being carried out at that time. He said that the cones and some signs caught his attention. There was a speed limit sign showing a speed limit of 80 kilometres an hour, and he slowed down to that speed. He described the road as being "fairly empty" but when he looked in his rear view mirror he saw a blue ute "flying up behind us and overtook us really fast". Mr Felsted described this ute as going past "really fast, I would say at least 110 in that area". The blue ute overtook Mr Felsted's car in the right‑hand lane. Mr Felsted estimated that the distance of the road works section was approximately 1 kilometre and that the blue ute overtook him when he was about three quarters of the way through the road works section. Mr Felsted could not recall the blue ute indicating and getting back in the left-hand lane. The blue ute soon disappeared off into a right hand sweeping bend in the road.
About a minute later, at a place on the road which Mr Felsted estimated to be 2 kilometres further on from the end of the road works section, Mr Felsted saw a mixture of cloud and dirt and then noticed that the blue ute, the same vehicle which had overtaken him in the road works section, had run off the road and into a tree. Mr Felsted and his wife stopped to assist. Mrs Felsted, who was a nurse, got into the vehicle to assist the driver, while Mr Felsted went to the front of the vehicle and put out flames that he noticed had started underneath the vehicle. Mr Felsted was soon joined by another person on a motorbike who helped put out the flames.
Mr Felsted gave evidence that the driver of the blue ute was conscious, angry and yelling out "Where's the other guy? Where's the guy who pulled out?"
There is little doubt that the blue ute which had overtaken Mr and Mrs Felsted was Mr Coull's ute I find that it was and that Mr Coull made the statement "Where's the other guy? Where's the guy who pulled out?" The evidence about the statement was not objected to and there no cross-examination of Mr Felsted about this statement.
Mr Felsted was cross-examined about Mr Coull's speed and asked whether the car which overtook him might have been going faster than 110 kilometres per hour. Mr Felsted said that it could very well have been faster, explaining "we all know what it's like when someone over takes us and they're just going over the speed limit, this guy was really going a lot faster than what was required". It must be remembered, however, that when Mr Coull overtook the Felsteds, they were travelling at 80 kilometres per hour.

Evidence of Leah Felsted

Mrs Felsted confirmed that the car in which she and her husband were travelling was in the left-hand lane. While passing through the road works section she remembered a blue car passing them "at a high speed". She also confirmed that soon after it went past, she and her husband came across the same blue car. They saw a lot of grey and blue smoke first and then saw that the car had hit a tree. They stopped at the accident scene and she went to try and help the driver. She said that he was definitely conscious. She gave no evidence of having heard any statement made by the driver, as her husband had.

Evidence of Michael Hahn

Mr Hahn was the motorcycle rider referred to by Mr Felsted who arrived at the accident scene after the Felsteds. He gave evidence that on the afternoon of 3 October 2002 he was travelling north along Ennis Avenue, in the left-hand lane, when he came to some road works where the speed limit was 80 kilometres per hour. He guessed that the section of road works was 500 metres in length. At the start of this road works section he was overtaken by a blue ute, which was in the right‑hand lane. He was able to see the blue ute until it went out of his sight because of a right hand veer or bend in the road. While he was able to see it the blue ute remained in the right-hand lane. He saw the blue ute a short time later in a tree. His estimate of the lapse of time before he saw the ute again was only 30 seconds.
In cross-examination when he was asked about the speed of the ute Mr Hahn said that there was nothing to really go by, but he took "a stab in the dark" that the ute was travelling 15 or 20 kilometres faster than he was, "maybe more". He was travelling at 80 to 85 kilometres per hour. He confirmed that he had given a statement to police on the day of the accident in which he had estimated the blue ute to be travelling in excess of 110 to 120 kilometres per hour. He was not asked, however, to clarify which was the more accurate or likely speed of the blue ute or which was the more correct statement – his statement to police, or the evidence he had given at trial. In the circumstances I accept the evidence of speed which Mr Hahn gave at the trial.
Mr Hahn confirmed that at the accident scene he had helped to put out the fire underneath the ute, but he had not heard anything said by the driver.

Evidence of Steven Norris

At the time of the accident Mr Norris was working with the WA Police Service. He attended the accident scene, taking measurements and drawing a rough map of the area, as well as taking photographs, which are Exhibit 3. He measured the distance from the intersection to the first of the skid marks from Mr Coull's ute and found it to be approximately 35 metres. He took the position of either the give way sign or the stop sign at Willmott Drive out to the middle of Ennis Avenue and from that point measured down the carriageway to the first tyre skid mark.
Mr Norris also measured the distance of each skid mark from where it started to the edge of the road. There were three skid marks in all, explained by the fact that Mr Coull's ute turned sideways and the skid marks were likely to be from the two front tyres and one rear tyre. Each of the skid marks varied in distance, depending on where the skidding commenced, and these measurements were 29.90 metres, 36.43 metres and 38.90 metres. There was no measurement of the distance from the end of the skid marks (which finished at the road verge) to the tree with which Mr Coull's ute collided.

Photographs

The photographs, Exhibit 3, show that there were two different lanes for vehicles on Willmott Drive approaching Ennis Avenue. Vehicles turning left into Ennis Avenue, did so from what has been described as a "slip road", regulated by a give way sign. Vehicles turning right into Ennis Avenue had to stop at a stop sign.
The third photograph on the top of p 3 of Exhibit 3 is of the view taken from the stop sign on Willmott Drive, looking to the right down Ennis Avenue. This is similar to the view which Mr Makings had before he commenced his turn into Ennis Avenue, but not the same view, since Mr Makings was further north (to the left of the photo) on the left‑hand turn "slip road". This photograph shows a bend in Ennis Avenue before Willmott Drive. From this photograph is not possible to see the two lanes of Ennis Avenue or any line markings on the road between the two lanes at the point of the bend in Ennis Avenue.
The fourth photograph, on p 3 of Exhibit 3, shows that a short distance from the intersection, when approaching it, the view of Ennis Avenue on the right is obscured by shrubs.
The photographs, particularly those on p 4 and p 5, also show how close to the intersection of Willmott Drive and Ennis Avenue the collision was. The photographs on p 5 show skid marks commencing only a very short distance from the give way sign at the end of Willmott Drive.

Mr Coull's evidence

Although Mr Coull suffered head injuries in the accident and was represented in this action by his next friends, Mr Coull gave evidence. It was immediately apparent that as a result of his head injuries, Mr Coull had significant difficulties with speech and communication. There were many occasions where he took a long time to answer a question or there were long pauses between the words he spoke (neither of which would be apparent from the transcript). Most of the time he grasped for the right word and many times, despite attempts, he was unable to find the right word. He often used pen and paper to write something before he could give the answer orally. He sometimes muddled his words and when unable to express himself he would use his hands to indicate what he meant. Sometimes when he was having particular difficulty in communicating he would tell himself to "slow down" (which does appear on the transcript). From what I observed, however, he had no difficulty in comprehending the questions he was asked.
In relation to the circumstances of the accident Mr Coull was able to give evidence that he could remember everything almost up to the point of the collision and then remembered very little until he regained consciousness in hospital.
Mr Coull admitted that he was travelling in excess of the speed limit. His evidence was that he was probably travelling at 110 kilometres per hour and was at all times travelling in the right-hand lane. He had not noticed the road works section, or that the speed limit had changed from 100 kilometres per hour to 80 kilometres per hour, and back again. As he approached the intersection with Willmott Drive he saw another car in Willmott Drive near Ennis Avenue. It had not stopped, but it was slowing down.
Mr Coull had some difficulty verbalising what happened next and used his hands to show that the other car had pulled out. He then drew a diagram, Exhibit 2. That diagram was a reasonable depiction of the intersection and included the bend in Ennis Avenue. Mr Coull drew his vehicle in the right‑hand lane of Ennis Avenue, the car at Willmott Drive and a line to indicate that car's path of travel into the right‑hand lane of Ennis Avenue. After drawing this diagram Mr Coull said that "the car went straight ahead like that, like that, and then it went like that. There was no indicating." He then explained, with some leading by his counsel, that the car came into the left-hand lane and then moved across into the right-hand lane. He repeated that there was no indicating.
Mr Coull gave evidence that he was in the right-hand lane. As the car moved from the left-hand lane into the right-hand lane Mr Coull said he started braking. Mr Coull's evidence was that while braking he "swerved like that" indicating, with his hands, that he was swerving to the left. While he did that the other car "went the wrong way round". He repeated this several times and it was clarified that by this Mr Coull meant that the other car also started to move from the right-hand lane into the left-hand lane, in the same direction as his. That was the last thing he could remember. The next thing he could remember was being told to relax by a policeman as the roof of his ute was being removed. His next memory was being in hospital.

How reliable was Mr Coull's evidence?

Dr McCarthy, a psychiatrist and physician who has considerable experience with head injured patients, summarised Mr Coull's head injuries in a report of 28 June 2005 and in his evidence at trial. Mr Coull suffered a closed head injury with a traumatic dissection of the left carotid artery. Secondary to this, some days after the accident Mr Coull suffered a cerebral infarction, which was confirmed by a CAT scan on 10 October 2002. In his evidence Dr McCarthy confirmed that this was like a stroke. As a result Mr Coull was left with a significant neurological deficit with language difficulties. He has expressive and mild receipt asphasia or dysphasia, leaving him with problems with mathematics, reading, writing and communicating, apraxia and disturbance of executive functioning. Asphasia or dysphasia means that Mr Coull is unable to find the right word to attach to an object or concept. Apraxia is to do with the control of the body, what Dr McCarthy described as "constructional activities", where someone knows how to do something physical (such as a simple thing like getting dressed), might even be able to describe it, but is unable to cognitively put that message from the cortex to the relevant muscles.
Dr McCarthy's initial diagnosis of Mr Coull from a psychiatric point of view was dementia secondary to the neurovascular accident, the dementia being related to memory and function loss. In a later report of 12 February 2009 Dr McCarthy's psychiatric diagnosis was a personality change and mood disorder with depressive features. At trial Dr McCarthy described his current diagnosis as what used to be called "frontal lobe problems", involving personality and mood difficulties. Dr McCarthy's evidence was that Mr Coull did not have too much problem with memory or intelligence, but he did have problems with the more sophisticated use of his intellect or his cognitive function, to do with pace, persistence, judgment and appropriateness.
Dr McCarthy provided a report dated 28 July 2005 which stated that despite Mr Coull's deficits he did have the capacity to make decisions in his best interests with respect to the conduct and settlement of his personal injury claim arising from the accident "though I trust he would discuss such things with his legal adviser and his supportive mother". Dr McCarthy stated that Mr Coull is sometimes given to anger and impulsive behaviour, however, Dr McCarthy believed Mr Coull was able to follow the case, instruct his solicitor and make appropriate decisions. In Dr McCarthy's view Mr Coull is intelligent and "usually rational", depending on the circumstances. He has more difficulty with expressing thoughts than forming them. That accords with my observations of Mr Coull while he gave his evidence.
During the trial, however, an issue arose about Mr Coull's ability to remember the events leading up to the accident. Mr Makings' submission was that Mr Coull's evidence about the accident was a reconstruction and could not be relied upon. This was based on other statements made in reports of Dr McCarthy, particularly a report dated 28 June 2005 in which he stated:
"Mr Coull has a poor memory for the accident and says it appears that he tried to swerve to avoid the collision. The first thing he actually remembers about the accident is being in the ambulance after the police and fire brigade had cut him out of his car."
Later, in 2007, Dr McCarthy was asked a specific question in correspondence from Mr Coull's solicitors, "Is it your view that Mr Coull's cognitive functioning was found (sic) at the scene of the accident and in particular would any statements he made at that time regarding the circumstances of the accident be reliable?" In a report dated 8 May 2007 Dr McCarthy wrote:
"In the accident this man suffered a primary traumatic brain lesion, rather than suffering a traumatic vascular lesion after the event involving the middle cerebral artery.
Despite this, with the traumatic nature of the accident and the clear generalised injuries including associated metabolic and vascular injuries, I would be reluctant to put much faith in any statements he made at the time regarding the circumstances of the accident, not because of the effect of the vascular injury after the accident but due to the actual emotional, physiological and hypoxic effect of the accident, which even in the absence of a primary head injury is likely to have compromised his cognitive function at least somewhat."
Dr McCarthy gave evidence at trial that he still adhered to the view expressed in the second portion of this statement made in his report, adding possible concussion as another factor.
A further question was asked in correspondence with Dr McCarthy by Mr Coull's solicitors, "Mr Coull states that he recalls the events leading up to the collision quite clearly and is able to recount how the accident occurred. Are you of the view that Mr Coull's memory of the accident would be unaffected by the subsequent infarction and brain injury that he suffered, in particular would you consider any statement he would now make as to his memory of the accident to be reliable?" This was also addressed by Dr McCarthy in his report dated 8 May 2007. He wrote:
"….In Mr Coull's case his memory of the accident may be affected by the subsequent infarction and brain injury. Therefore I regard any statement he makes as to his retrospective memory of the accident to be unreliable. I do not suggest that he is deliberately misleading but due to the confusion of the actual events, the possibility that he may not have actually recorded or encoded much of the memory of the accident it is likely that his memory may indicate a significant degree of reconstruction rather than untainted recall. This is all so (sic) likely to be affected by his subsequent, very significant neuro-vascular accident.
Not only do I regard comments he may have made at the time of the accident to be unreliable and that his subsequent apparent recall, or at least attempted recall of the accident to be unreliable, I also suspect that he would be vulnerable to suggestion and perhaps confusion and he continues to have a brain that in very significant areas still does not function well. I therefore do not regard it to be medically safe to put much emphasis on what he was said to have said at the time in the circumstances of the accident or his post-op attempt to reconstruct a memory.
I should add that in many of the head-injured patients I have seen, the memory of the accident is in fact a reconstruction based on what they have been told with added information from TV images that may or not at all actually reflect the events which are claimed or thought to be remembered."
When these last statements were put by defendant's counsel in cross‑examination Dr McCarthy explained that:
"All memories are reconstructions. We don't have a video recorder. All memories, therefore, are vulnerable to some kind of contamination by events that aren't connected with the accident, or the event, and that includes head-injured patients. Sometimes they remember. Sometimes it's suggested. Sometimes it's got construct from---"
In re-examination Dr McCarthy explained further that there is a distinction between the events of the accident themselves and the events leading up to the accident:
"Now, in terms of that cognitive function is there any distinction that can be drawn between the events of the accident themselves and the events leading up to the accident, in terms of the coding of memory---?---Yes. Why can't Diana's driver remember? There's no memory to remember, he never encoded the memory. Now, I might encode a memory here and it's in here. I go out, I have a head injury, and I still have that memory. I don't have any memory of what actually caused the events of the head injury, I haven't encoded that memory. But I've encoded this one, so I anticipate that to the extent – to start with all, memories are reconstructions, you like corroboration. Quite apart from that, if prior to the, prior to the - if he can give a good example or good description of events prior to the accident, that memory has been encoded; and then assuming he is telling the truth, I can put some reliance, at least as much as I am likely to do, any memory on that memory. But after the accident, this man's got multiple fractures, he's got a (indistinct), he's going to be hypoxic, he's got fractures, he's going to have fat and emboli running around his veins, he's got something happening with his carotid that no one seems to have figured out. He's likely to be concussed, why is that? He has facial bone injuries; he's got a laceration on a CAT scan, visible on a CAT scan. This man's had a major traumatic event, with probable concussion, that's going to - even apart from the emotional consequences. And then I'm sitting in this car for 90 minutes waiting for the thing to explode in flames. I would have some difficulty being the objective philosopher there, how could you not? Be not only emotionally distressed but physiologically and cognitively compromised.
So at that point in time, you would not expect any photographic memory for that, that period---There may be coding a memory he's conscious, if he's conscious there may be some coding of memory. It may or may not an accurate coding though."
With that evidence in mind I turn to consider the evidence that Mr Coull has given. Mr Coull has no memory of the actual collision. He has not attempted to reconstruct what happened at the time of the collision. He does have a memory and has given a good description of events before the accident, leading up to the point where he and Mr Makings, who were both in the right-hand lane of Ennis Avenue travelling north, moved into the left-hand lane. In light of Dr McCarthy's evidence at trial I consider it is likely that this memory was "encoded".
Support that this much of Mr Coull's memory has been encoded is provided from the evidence of the Felsteds that Mr Coull was conscious for a time after the accident. Mr Coull was clearly heard by Mr Felsted as asking for "the guy who pulled out". That would enable some coding of memory up to a certain point, which on the evidence from Mr Coull is the point just before the actual collision.
Support is also provided by evidence led from Mr Coull's mother, Sheila Coull, as to a statement which Mr Coull made to her when she first saw him in hospital, a few hours after the accident. This was led, not as to the truth of what was stated, but on this question of whether Mr Coull's current recollection is a later reconstruction. Mrs Coull gave evidence that when she first went into Rockingham Hospital and saw Mr Coull he was conscious and able to talk. Mr Coull said to her "he pulled out in front of me" and then kept repeating "why?"
Mr Coull's description of what occurred is also recorded by Dr Kim Fong, the specialist in rehabilitation medicine at Royal Perth Hospital who treated Mr Coull during his recovery stage. The reports of Dr Fong were admitted by consent, without the need for Dr Fong to attend the trial to give evidence. In a report dated 10 July 2003 Dr Fong mentioned that Mr Coull was pursuing a third party claim, "alleging negligence from a driver who apparently pulled out in front of him and caused Mr Coull to crash his car into a tree".
In light of this evidence of Mr Coull's consciousness, the statement that Mr Felsted heard Mr Coull talk of the "guy who pulled out", the report of Dr Fong and Dr McCarthy's evidence, I consider that the memory of events up to just before the point of the collision, as given in evidence by Mr Coull, was encoded in Mr Coull's memory and has not been affected by his head injuries. I consider, therefore, that reliance can be placed on Mr Coull's evidence of the events leading up to the point when Mr Coull moved from the right-hand lane into the left-hand lane, and saw Mr Makings in front of him doing the same thing. Mr Coull has not attempted to reconstruct anything after this point.

Evidence of Mr Makings

There was tendered by Mr Coull, and admitted into evidence with the consent of Mr Makings, a video taped record of interview of Mr Makings which was taken by police two weeks after the accident on 16 October 2002. Mr Makings was not on oath when he was interviewed and he was not asked at trial to adopt that record of interview, although he was cross‑examined in relation to statements he made in it. Accordingly I place greater weight on the evidence that Mr Makings gave during this trial than on the record of interview, where there is any conflict between the two.
In the record of interview Mr Makings told the police that he had just left his home, which was just around the corner from the intersection of Willmott Drive and Ennis Avenue, and had pulled up at the give way sign when he saw a blue Rodeo ute in the distance. He said that he saw the ute in the left‑hand lane. The next time he looked into his rear vision mirror, after having turned into Ennis Avenue into the right-hand lane, the ute was behind him, really close and Mr Makings realised the ute was speeding, so Mr Makings decided to turn into the left-hand lane so the ute could overtake him.
In response to questions from the police during the record of interview Mr Makings said he was not sure of the distances involved, and that the ute was "right around the bend". Mr Makings said he thought he would have enough time to get into the right-hand lane of Ennis Avenue and "speed up enough time for him to be … with the traffic flow which it was only him on the road, so …". It was only after having pulled out to make the turn that he looked into the rear vision mirror and saw the ute "right there". As Mr Makings did not want to get in the ute's way he decided to move into the left lane. He then tried to move across, saying that he indicated, but saw that the ute did the same thing. Mr Makings heard the ute start to skid before the ute clipped the back left rear of his car.
Also tendered into evidence was Mr Makings' answers to interrogatories sworn 13 February 2008. In those answers to interrogatories Mr Makings deposed that he looked to his right to check for vehicles travelling north along Ennis Avenue, and saw Mr Coull's vehicle in the kerbside or left-hand lane. One of the questions Mr Makings was asked was whether, after he had commenced to turn left into Ennis Avenue but before entering the right-hand lane of Ennis Avenue, he had looked for vehicles travelling north along Ennis Avenue to the south of his vehicle. Mr Makings' answer was "I believe not because when I saw Mr Coull's vehicle it was far enough away for me to safely pull out and I was looking where I was going".
At trial, Mr Makings gave a summary of how the accident occurred:
"I was on Willmott Drive, turning left onto Ennis Ave, the ‑ I noticed there was a vehicle in the left lane. So I pulled into the right lane, because that's how I was taught how to drive. If there's a car, no matter how far back they were, which this car was a considerable distance back, I'd go into the right lane. If that vehicle was in the ‑ that right lane, straight into the left lane. So I pulled in, into the right lane, I looked in my rear vision mirror as I was taking off. I think I was doing about 30 Ks an hour. The vehicle seemed to be right up close, so I tried to get out of its way. So I pulled into the left lane. I noticed that the vehicle was mirroring my move, without slowing down. So I ‑ yeah, it did hit the back, left, side of me and then when straight into the tree."
Mr Makings gave evidence that although at the time of the accident it was his normal practice to pull out directly into the right-hand lane, he now appreciated that if the speed limit was more than 90 kilometres an hour he was not allowed to proceed directly into the right-hand lane.
Mr Makings indicated with a cross on one of the photographs, Exhibit 3, (the first photograph at the top of p 3) the position in which he believed he first saw Mr Coull on Ennis Avenue, by reference to a road sign and four light posts along the side of the road. That position was at the bend of Ennis Avenue. The point at which Mr Makings said that he last looked at Mr Coull was the lamp post the furthest back in the photograph, nearest the cross. There was no evidence as to the distance from the give way sign on Willmott Drive to those two points.
Mr Makings gave evidence that when he saw Mr Coull's ute it was some distance away, he could "barely see the car", and he was unable to make out whether it was a Rodeo or Holden. He then maintained, notwithstanding that he could barely see the car, that he could make out which lane the car was in.
In his examination-in-chief Mr Makings said he was unable to give an estimate of Mr Coull's speed, other than to say he was going "very fast" and "a lot faster than what I was". When it was put to him in cross‑examination that he was not in a position to judge Mr Coull's speed, Mr Makings stated "I can't determine if he was – I knew he was – he was travelling at that speed limit. I couldn't say if he was speeding or not…". Later he said again that he could not say if Mr Coull was doing the speed limit or not, although he said (more than once) that this was a road that people always speed on. When, however, he was asked about his knowledge of this corner, Mr Makings admitted he could not judge the speed of someone "that far back", but then said that he knew that Mr Coull's vehicle was going faster than the speed limit. When challenged on this change in his evidence, Mr Makings then said "I can't judge where he was doing the speed limit, but I knew he was either doing the speed limit or going faster than that". Notwithstanding this uncertainty about judging Mr Coull's speed, Mr Makings gave evidence that he judged it was safe to pull out because, he thought, Mr Coull "was far enough back for me to pull out into the right lane" and that it was "safe enough to pull into the right lane", thus getting across Mr Coull's line of travel before he could get to Mr Makings.
Mr Makings agreed that he had to accelerate faster than normal to get across to the right‑hand lane of Ennis Avenue. In cross‑examination Mr Makings conceded that he only looked once to his right before turning into Ennis Avenue, although he said that he looked for a couple of seconds. Mr Makings also conceded in cross-examination that he was not sure what distance Mr Coull had covered in the couple of seconds Mr Makings was watching Mr Coull. Mr Makings also agreed that when he went from the left-hand lane to the right-hand lane, he either indicated not at all or indicated so late as to give no warning to the person coming up behind him.
Mr Makings admitted that Mr Coull's ute was the only vehicle coming from the right-hand side and Mr Makings could see nothing else behind or in front of Mr Coull. He also agreed that from the moment he last saw Mr Coull at the last of the four lamp posts until he reached the right-hand lane of Ennis Avenue, he did not look again at Mr Coull's ute (although he almost immediately changed this to say he could not remember, but that he must not have looked).
Mr Makings stated that once he was in the right‑hand lane, he saw Mr Coull's vehicle behind him and decided he had better get out of Mr Coull's way. In cross examination Mr Makings said he made a "split decision" to turn into the left lane and indicate at the same time. Other statements made during cross-examination by Mr Makings confirmed that he moved straight across into the left-hand lane, indicating only while doing so.

Findings of fact relevant to liability

On the issue of which lane Mr Coull's ute was in at the relevant time, I find that it is more probable than not that Mr Coull was in the right‑hand lane, for the following reasons.
First, the evidence of Mr and Mrs Felsted and Mr Hahn was that Mr Coull was in the right‑hand lane when he overtook them in the "road works" section of Ennis Avenue, south of Willmott Drive. That section was only a comparatively short distance south of Willmott Drive. When Mr and Mrs Felsted last saw Mr Coull, only a minute or so before they came upon the scene of the accident, Mr Coull was in the right-hand lane. Mr Hahn saw Mr Coull remain in the right-hand lane until the ute went out of his vision, because of the bend in Ennis Avenue. This was only a short period of time, about 30 seconds on Mr Hahn's estimation, before he next saw the ute in the tree.

Secondly, the photographs in Exhibit 3 show that as Mr Makings approached Ennis Avenue from Willmott Drive he did not have an unobstructed view. A clear view of approaching traffic would not be obtained by a vehicle intending to turn left until it had reached the intersection. The photograph on which Mr Makings indicated the position of where he believed Mr Coull's car was when first seeing it on Ennis Avenue is taken from the stop sign at Willmott Drive, where vehicles intending to turn right would stop. Mr Makings' vehicle was further away, in the left hand "slip road" near the give way sign. Where Mr Makings has marked the position of Mr Coull's ute when he saw it, is around the bend of Ennis Avenue. Mr Makings gave evidence that when he last saw Mr Coull, before Mr Makings began to turn, Mr Coull was just to the right of that mark, near a light pole. It is not possible to see the two lanes of Ennis Avenue or any line markings on the road between the two lanes in either of these positions. Even allowing for the fact that this is a photograph, in my view it would have been difficult for Mr Makings to judge exactly in which lane Mr Coull was travelling.
Thirdly, Mr Makings' own evidence was that when he first saw Mr Coull's car he could "barely see" it and could not make out what type of car it was, yet Mr Makings claimed that he could make out what lane the car was in. Given that Mr Makings was unable to make out what Mr Coull's car was, I do not accept that he could nonetheless see the lane in which that car was driving, in the bend, on Ennis Avenue. A number of other aspects of Mr Makings' evidence in my view affects the reliability of his evidence on this issue. Mr Makings said he only looked once at Mr Coull's vehicle, as he commenced his entry onto Ennis Avenue, and did not look again until he was in the right-hand lane of Ennis Avenue and looked in his rear view mirror. When Mr Makings did look to his right he was moving and did not, on his evidence, look for any longer than a couple of seconds. Mr Makings also gave inconsistent evidence about whether or not he was able to or had judged Mr Coull's speed before entering the intersection, as I have recounted at [59] above. Taking into account all of these matters I consider that Mr Makings' evidence about the lane in which he saw Mr Coull's car is neither accurate nor reliable.
Finally, for the reasons I have discussed in relation to the reliability of Mr Coull's evidence, I consider that Mr Coull's evidence of the lane in which he was travelling immediately before the accident, namely the right-hand lane, is reliable. The lane in which he was travelling is a matter which is in Mr Coull's knowledge and I am satisfied, after hearing all of Mr Coull's evidence and observing him, that he was honest and reliable on this matter.
Taking into account all of these matters, while Mr Makings may have believed that Mr Coull was in the left-hand lane, I am not satisfied that Mr Coull was in that lane as Mr Makings contended. On this matter I prefer Mr Coull's evidence. Given the other objective facts and the inconsistencies in Mr Makings' evidence, I consider it more probable than not that Mr Coull was in the right-hand lane and Mr Makings misjudged the position of Mr Coull's ute.
On the issue of Mr Makings' manner of changing lanes, from the right-hand lane to the left-hand lane of Ennis Avenue, given Mr Making's own evidence about this as I have set out in [55] and [62], I find that Mr Makings did not indicate before changing lanes. His indication to move into the lane occurred at the same time as he actually moved.
I find that the position and movements of Mr Coull's ute and Mr Makings' Ford Falcon at the relevant times to be as follows:
1.Mr Makings slowed when he came to the intersection of Ennis Avenue and was in the left-hand turn "slip road" when he saw Mr Coull approaching some distance away. The exact distance is unknown.
2.When Mr Makings saw Mr Coull's ute it was in the bend of Ennis Avenue. Mr Makings made a judgment that Mr Coull was in the left‑hand lane of Ennis Avenue.
3.Mr Makings also made a judgment that he had sufficient time to enter Ennis Avenue, before Mr Coull reached the intersection of Willmott Drive, if he moved across the left-hand lane directly into the right-hand lane of Ennis Avenue.
4.Mr Makings continued with his turn into Ennis Avenue and did not again check the position of Mr Coull's ute.
5.Mr Coull was in fact travelling in the right-hand lane of Ennis Avenue approaching the intersection of Willmott Drive.
6.There was no other traffic on Ennis Avenue either immediately before or after Mr Coull's ute.
7.Mr Makings could have waited for Mr Coull's ute to pass before entering Ennis Avenue. Mr Makings did not do so.
8.Mr Makings entered Ennis Avenue by moving across the left-hand lane and directly into the right-hand lane, without indicating.
9.Having completing his turn into the right-hand lane of Ennis Avenue, Mr Makings looked into his rear vision mirror and found Mr Coull's ute directly behind him and travelling at a greater speed than Mr Makings.
10.Mr Makings then decided to get out of Mr Coull's way and move into the left-hand lane.
11.Although Mr Makings indicated when moving from the right‑hand lane to the left-hand lane, he did so simultaneously with moving – in other words, he gave no prior indication of his intention to change lanes.
12.At the same time as Mr Makings started to change lanes, Mr Coull also started to move from the right-hand lane into the left-hand lane.
13.Mr Makings was travelling at a much slower speed than Mr Coull, since Mr Makings had only just entered Ennis Avenue.
14.Mr Coull applied his brakes, however his vehicle tipped the tail light of Mr Makings' vehicle and as a result, Mr Coull lost control of his vehicle, which skidded and hit a tree on the left-hand side of the road, off the road verge.

Findings on liability

Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. This requires simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. Reasonable care requires that a driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events: Manley v Alexander (2005) 223 ALR 228 at [11] and [12].
It was the duty of Mr Makings to give way to vehicles on his right travelling in a northerly direction along Ennis Avenue. Reasonable care required Mr Makings to be able to bring his vehicle to a halt or otherwise avoid a collision, should he find another vehicle approaching from his right in such a manner that, if both vehicles continued, a collision might reasonably be expected: Sibley v Kais (1967) 118 CLR 424 at 427.
After initially seeing Mr Coull around the bend of Ennis Avenue and observing him for only a short time, Mr Makings did not again check Mr Coull's position. I consider that it was incumbent on Mr Makings to continue to look to his right in order to observe Mr Coull's oncoming ute and react to any change in circumstances, including the possibility that Mr Coull was travelling in a lane or at a speed different from that which Mr Makings had judged. Further, if the assessment made by Mr Makings was (mistakenly) that Mr Coull was travelling in the left-hand lane, Mr Makings should have waited for Mr Coull's ute to pass before proceeding into Ennis Avenue. There was no other traffic following Mr Coull and Mr Makings could have safely entered Ennis Avenue behind Mr Coull.
I find that Mr Makings failed to keep a proper look out, failed to properly assess the situation, failed to check the position of Mr Coull and otherwise failed to control his vehicle to ensure that he could avoid any impact should he find Mr Coull's ute approaching either more quickly than he had originally judged, or in a different lane from that in which he had judged Mr Coull's ute to be. Further, to enter Ennis Avenue directly into the right-hand lane was in breach of r 113 of the Road Traffic Code. I find that Mr Makings entered onto Ennis Avenue when it was not safe for him to do so.
Having entered into Ennis Avenue by crossing the left-hand lane and moving directly into the right-hand lane, and finding himself just in front of Mr Coull, Mr Makings then made a decision to move immediately back into the left‑hand lane. He proceeded to do so without any forewarning to Mr Coull. I find that Mr Makings changed lanes when it was unsafe to do so and commenced to do so without first indicating.
In all of the circumstances I find Mr Makings' driving to have been negligent and Mr Makings liable for the accident.

Findings on contributory negligence

In the same way that Mr Makings owed a duty when entering the intersection to avoid a collision, so too did Mr Coull have a duty to have his ute under control so that he could slow down or otherwise avoid a collision with another vehicle entering from Willmott Drive into Ennis Avenue in such a manner that, if both vehicles continued, a collision might reasonably be expected: see Sibley v Kais (supra).
The submission of Mr Makings was that the accident would not have occurred if Mr Coull had not been speeding. It has been submitted that Mr Coull's actual speed was more than the speed of 110 kilometres per hour at which Mr Coull admits he was travelling.
Counsel for Mr Makings submitted that not only did Mr Coull drive at an excessive speed but he did so in circumstances where he had a limited ability to control his vehicle by virtue of a pre-existing significant disability. This was a disability in Mr Coull's right arm, caused by an earlier motor vehicle accident in England in 1986. Mr Coull's evidence was that his current driver's licence had only one condition on it, that he wear suitable visual aids (glasses) when driving. There is no special condition to do with the disability which Mr Coull has with his right arm, although Mr Coull conceded that he could not operate manual gears. There was no evidence that Mr Coull could not adequately control an automatic vehicle. In my view it is speculation that the accident was in any way contributed to by Mr Coull's pre-existing disability in his right arm.
As to Mr Coull's speed, Mr Coull has admitted that he was travelling at 110 kilometres per hour. There was also the evidence about the speed he was travelling when he overtook the Felsteds and Mr Hahn immediately before the collision in the road works section of Ennis Avenue, just south of Willmott Drive. The evidence of Mr Felsted was that Mr Coull's ute was travelling at approximately 110 kilometres per hour when he overtook Mr and Mrs Felsted's car. Based on Mr Hahn's evidence at trial Mr Coull was travelling at approximately 100 to 105 kilometres per hour. Each of these estimates are consistent with Mr Coull's evidence of his speed.
As I have already observed, this road works section was only a comparatively short distance before Willmott Drive. There is no evidence that Mr Coull "sped" up to any greater speed after leaving that road works section. The accident occurred within a minute after Mr Coull had overtaken the Felsteds. Having regard to these facts there is nothing from which I am prepared to infer that Mr Coull's speed exceeded 110 kilometres per hour.
In the absence of any expert evidence as to the effect of speeds and distances it is necessary to rely upon the objective evidence and inference to ascertain whether the speed of Mr Coull contributed to the collision and his resulting injuries. I consider that Mr Coull's speed did contribute to this accident.
As to the apportionment which should be made I bear in mind the principles enunciated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532-533:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
Both Mr Coull and Mr Makings submitted that the other party's "share" of liability was proportionately greater than his own. Mr Makings' driving was inappropriate and unsafe, particularly having regard to the fact that Ennis Avenue was a major dual carriageway with a comparatively high speed limit. On the other hand, Mr Coull's decision to drive above that speed limit placed himself (as well as others) at risk.
In the circumstances I consider that Mr Makings' manner of driving was more culpable than Mr Coull's. The whole sequence of events was precipitated by Mr Makings' actions. Mr Makings pulled out when it was unsafe to do so and directly into the right‑hand traffic lane, something which is prohibited by reg 113 of the Road Traffic Code. Mr Makings then changed lanes, moving back into the left‑hand lane, without first indicating. From the evidence of Mr Norris as to the distance from the intersection of the first skid mark from Mr Coull's ute, all of these manoeuvres by Mr Makings occurred within a distance of approximately 35 metres from the intersection. This left little, if any, time for Mr Coull to react and take evasive action. The manner of Mr Coull's driving was consistent with taking action to evade Mr Makings' vehicle. Although travelling above the speed limit of 100 kilometres per hour, the speed at which Mr Coull was driving was not far above that speed limit. This was not a situation where Mr Coull was driving between 30 to 40 kilometres per hour above the speed limit, on a busy highway in a suburban area with a 60 kilometres per hour speed limit: cp Gorman v Scofield [2008] WASCA 78. I consider that Mr Makings' manner of driving, not only in entering Ennis Avenue, but thereafter changing lanes without indicating, is more significant than Mr Coull's contribution to the accident.
In the circumstances I have concluded that it would be just and equitable to apportion liability 70/30 in favour of Mr Coull, so that Mr Coull's damages are reduced by 30 per cent for contributory negligence.

Quantum

Plaintiff's pre-accident history

Mr Coull was born and grew up in England. He came to Australia in 2000, joining his parents and his brother and sister, who had come to Australia some years before. His entry into Australia was not without difficulties. Initially his entry visa was refused on the grounds that he was not of good character because of his criminal record in England.
In December 1980 Mr Coull was convicted of a shoplifting offence. Upon leaving school in 1981 he was accepted to attend Merchant Navy College where he remained until July 1984. While at Naval College Mr Coull committed some traffic offences and was convicted of theft of a motor vehicle, for which, in early 1984, he received a fine and was disqualified from driving.
Mr Coull completed a diploma in electronics and communication engineering at Merchant Navy College. In February 1985 Mr Coull, then aged 25, was able to secure employment as a test engineer with a firm known as Navstar. In December 1985 Mr Coull was charged with two counts of theft from a motor vehicle. These offences involved the theft of a petrol cap and the siphoning of petrol from a motor vehicle. In January 1986 he was sentenced to a two year conditional discharge for these offences.
In May 1986 Mr Coull was involved in a road traffic accident. He was riding a motorcycle which collided with the side of a car which pulled out in front of him. As a result of this accident Mr Coull suffered a fracture of his left wrist and an injury to the right sided brachial plexis. He was hospitalised following the accident for six weeks and underwent surgery to his right brachial plexis, involving the re-innervation of the suprascapular nerve and the musculocutaneous nerve. He was, however, left with a permanent disability in his right arm, with some paralysis, muscle wasting, a claw hand and a reduced range of motion in both his elbow and his shoulder. This was the pre-existing disability in Mr Coull's right arm which I have previously mentioned in [79] above.
Following this accident Mr Coull lost his job with Navstar. In July 1986 Mr Coull was involved, in the company of some friends, in a burglary, theft and fraud. The fraud involved the unauthorised use of a stolen credit card. In January 1987 Mr Coull was charged with two counts of burglary and theft, six counts of fraud and with breach of his conditional discharge. He was sentenced to a suspended sentence of imprisonment for 2 years.
Mr Coull was able to return to work at Navstar where he went on to become a senior technician. He remained at Navstar until June 1991 when that firm was taken over by an American company and Mr Coull was made redundant. After a period of unemployment of about five months, Mr Coull obtained work as a service engineer with another firm for about four months.
In May 1992 Mr Coull commenced employment a test technician. This was only short term employment which finished in October 1992. After this, apart from two months employment as a machine operator between January 1995 and March 1995, Mr Coull remained unemployed.
In 1992 Mr Coull's parents migrated to Australia. Mr Coull also went through the break up of a six year relationship.
In mid 1995 Mr Coull was convicted of two separate counts of handling stolen goods, for which he was fined. In January 1996 he was charged with the unauthorised use of a motor vehicle, for which he received only a caution, due to extenuating circumstances (he used a car he was repairing for a friend).
In March 1996 Mr Coull visited Australia to attend the wedding of his brother, who had earlier moved to Australia. His sister, Lorna Cross, migrated to Australia in October 1996. In March 1997 Mr Coull lodged his own application for migration to Australia to join the rest of his family.
In September 1997 Mr Coull shoplifted two cans of beer from a local supermarket. He was under a great deal of stress and anxiety at the time, wishing to join his family in Australia, and this shoplifting had occurred after the consumption of alcohol at a party. As the manager of the supermarket was a friend, official charges were not pressed, but Mr Coull did receive a caution from police.
Mr Coull's application for migration to Australia was refused. An appeal from that decision was brought to the Administrative Appeals Tribunal ("AAT") and, on 8 October 1999, the decision to refuse him entry was set aside ("the AAT decision"), allowing him to join his family here. The AAT decision considered in detail Mr Coull's working history and criminal history. It took into account other evidence, particularly from friends, for whom Mr Coull undertook unpaid work looking after their children, and other family members. The AAT concluded that although there were irresponsible acts of "unlawful, silly behaviour" which had characterised Mr Coull's life, there were other things that showed good character and gave cause for hoping that, in the right circumstances and as he further matured, Mr Coull could become a responsible law abiding citizen. Although the AAT determined that Mr Coull was "still not of good character", it exercised the discretion to issue the visa, on the basis of Mr Coull's good qualities.

IN CIVIL