Earle-Joyce v AAI Limited t/as AAMI
[2024] NSWPIC 626
•8 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Earle-Joyce v AAI Limited t/as AAMI [2024] NSWPIC 626 |
| CLAIMANT: | Brandon Earle-Joyce |
| INSURER: | AAI Limited t/as AAMI |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 8 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether accident caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28; where claimant’s vehicle crossed from the southbound lane to the northbound lane while navigating a sweeping left hand corner, left the road and collided with a tree; where claimant had no recollection of the accident and there were no witnesses; insurer relied on res ipsa loquitur to support an inference that the accident was caused by the claimant’s fault; AAI Limited t/as GIO v Evic; Insurance Australia Limited t/as NRMA v Richards; Schellenberg v Tunnel Holdings Pty Ltd; Piening v Wanless; Anchor Products Limited v Hedges; Davis v Swift; Vairy v Wyong Shire Council; Manley v Alexander; Australian Broadcasting Tribunal v Bond; Taitoko v R; Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd; Held – res ipsa loquitor arose for consideration; what occurred was sufficiently unusual to raise a probability that the course of the claimant’s vehicle was to be accounted for by some failure to exercise reasonable care; inference drawn that the accident was caused by the claimant’s failure to exercise reasonable skill and care in the driving of his vehicle; contributory negligence assessed at 60%; for the purposes of sections 3.11 and 3.28 the accident was not caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on |
STATEMENT OF REASONS
BACKGROUND
Brandon Earle-Joyce was injured in a motor accident at Yarramundi on 16 April 2023 (accident), and has made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer).
On 8 February 2024, the insurer denied liability for the claim after 14 April 2024, having determined that, for the purposes of ss 3.11 and 3.28 of the MAI Act, the accident was caused wholly by Mr Earle-Joyce’s fault. The liability notice states that the insurer relied on Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 (Richards), and that it had inferred negligence on Mr Earle-Joyce’s part. The insurer determined that in the ordinary course of events a vehicle would not veer off the road and collide with a tree without negligence on the part of the driver.
Mr Earle-Joyce sought an internal review of the insurer’s decision. On 1 March 2024 an internal reviewer concluded “not without some hesitation” that an inference of negligence should be drawn. The internal reviewer found that Mr Earle-Joyce was wholly at fault for the accident, and affirmed the insurer’s liability decision.
Mr Earle-Joyce then commenced these proceedings. He disputes that the accident was caused wholly or mostly by his fault.
PROCEDURAL HISTORY
Preliminary conferences were held on 30 April 2024, 20 June 2024, and 5 September 2024.
At the preliminary conference on 30 April 2024 the statutory rules, including ss 3.11 and 3.28, were addressed, as were the insurer’s submissions. Mr Earle-Joyce sought and was given an opportunity to obtain legal representation. In this regard, he was directed to the Law Society of NSW to seek a referral to lawyers specialising in motor accident claims. The parties were informed that, given the complex issues that arose in the proceedings, payment of legal costs incurred by Mr Earle-Joyce were likely to be permitted under s 8.10(4)(b) of the MAI Act.
At the preliminary conference held on 20 June 2024 Mr Earle-Joyce sought further time to secure legal representation.
On 5 September 2024 Mr Earle-Joyce confirmed that he had been unable to secure legal representation. The parties agreed that the proceedings were ready to be determined. Mr Earle-Joyce confirmed that he did not object to the proceedings being determined on the papers.
The insurer having subsequently confirmed its agreement that the proceedings could be determined on the papers, directions were made on 12 September 2024 for the provision of a joint bundle and submissions.
ON THE PAPERS
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.
STATUTORY FRAMEWORK
An injured person is not entitled to statutory benefits more than 52 weeks after the motor accident concerned if the motor accident was caused wholly or mostly by the fault of the person: ss 3.11(1)(a) and 3.28(1)(a) of the MAI Act.
A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident, as referred to in s 3.38, was greater than 61%: ss 3.11(2) and 3.28(2) of the MAI Act.
Section 3.38 of the MAI Act, to which both ss 3.11 and 3.28 refer, is relevantly in the following terms:
“3.38 Reduction of weekly statutory benefits after 12 months for contributory negligence
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.
(2) A finding of contributory negligence must be made in the following cases—
(a)…
(b) …
(c)where the injured person (not being a minor) was, at the time of the motor accident, not wearing a seat belt when required by law to do so,
(d)…
(e)…
(f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.
(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence—
(a) if subsection (4) requires the statutory benefits be reduced by a fixed percentage—by that fixed percentage, or
(b) by such percentage as the parties agree, or
(c) in any other case—by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.
(4) The regulations may fix the percentage by which weekly payments of statutory benefits are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured person.
(5) This section does not exclude any other ground on which a finding of contributory negligence may be made.
(6) …”
If a finding of contributory negligence is made in these proceedings, it is to be determined on the basis of what is just and equitable in the circumstances of the case, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations: s 3.38(3)(c).
In AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic) Mitchelmore J held that:
(a) sections 3.11 and 3.28 operate to cease the payment of statutory benefits to a person under Divs 3.3 and 3.4, respectively, if one of the two conditions in subs (1) is satisfied. The focus of the condition, and the relevant enquiry, in paragraph (a) is whether the motor accident, as defined in s 1.4, was caused “wholly or mostly by the fault of the person”, being the injured person who is in receipt of the relevant benefits. The qualifiers “wholly or mostly” inform each other and are intended to address the same mischief, namely, contributory negligence;[1]
(b) sections 3.11 and 3.28 are directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident. The sections use the word “fault” accompanied by a qualifying phrase (“wholly or mostly”) which clearly invokes contributory negligence;[2]
(c) sections 3.11 and 3.28 are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver;[3]
(d) the words “wholly or mostly” do not require comparison of the acts of at least two parties;[4]
(e) an injured person may be “wholly at fault” consistently with the enacted law that permits a finding of 100% contributory negligence,[5] and
(f) the exercise to which s 3.38(3)(c) is directed, namely, assessing what is just and equitable in the circumstances of the case, is one that could be carried out in respect of the conduct of an owner driver in the context of a single vehicle accident.[6]
[1] At [56].
[2] At [57].
[3] At [57].
[4] At [67].
[5] At [70].
[6] At [73].
The enacted law includes Div 8 of Pt 1A of the Civil Liability Act 2002 (CL Act). Section 5R(1) provides that the principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. Section 5R(2)(a) provides that, for that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person.
The burden of proving that the accident was caused wholly or mostly by the fault of Mr Earle-Joyce lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident was caused wholly or mostly by the fault of Mr Earle-Joyce: Richards at [45], [55] and [67].
REVIEW OF THE EVIDENCE
Other than the body worn camera footage that records the interview of Mr Earle-Joyce by police,[7] the evidence relied on by the parties is contained in a joint bundle lodged by the insurer.
[7] As referred to in the schedule of documents contained in the joint bundle.
The application for personal injury benefits dated 23 April 2023 was not completed by
Mr Earle-Joyce,[8] and does not include a description of the accident. The application records that the accident occurred at Springwood Road, Yarramundi.
[8] The declaration in the application was signed by his mother, Michelle Earl.
An NSW Ambulance Electronic Record (ambulance report) records that the accident was reported at 4.54am. The report includes the following “Case Description”:
“o/a, high speed and impact MVA, single car vs tree. Bystanders have found car, rolled in the middle of the road after appearing to fail to negotiate a turn. Very significant damage to driver side front wheel with debris left around tree approx. 15m away. Driver is lying on interior roof of car, over driver seat, alert, distressed and in pain. Pt has R leg trapped by compression by firewall from L front wheel well. Leg is tisted [sic] around pedals and inaccessible due to damage and deformity to the vehicle…..Initially given methoxyflurane for analgesia. Pt was GCS 15 at this point, did not have recall of the accident itself, however was aware he had been in an accident, knew his name ect [sic]. Pt was cannulated, given ketamine and morphine for initial pain management…Post analgesia, pt became increasingly agitated and combative, lashing out at rescue operators in the car with him, given 0.5mg of IV midazolam to minimal effect. Pt given repeated doses of ketamine and opiates for pain management/behavioural management…”
The ambulance report records that Mr Earle-Joyce suffered multiple open upper and lower leg fractures.
A NSW Police report dated 10 May 2023 records that:
(a) the accident occurred on Springwood Rd, Yarramundi;
(b) the road alignment was curved;
(c) the road gradient was “crest”;
(d) the weather was fine;
(e) the road surface was sealed;
(f) the surface condition was dry;
(g) there was no street lighting;
(h) natural light was “darkness”, and
(i) the speed limit was 80kmph.
The report records “Y” next to the question “Was Unit Responsible”. The pre-crash speed is recorded as being 100kmph. The report records that a blood alcohol sample was taken, and that the result was “negative”. The report states that a seatbelt was worn by Mr Earle-Joyce.
The report includes the following “Crash Summary Details”:
“VEH – Mazda 6
At 04:10hrs on Sunday the 16th of April 2023, the driver was travelling south bound along Springwood Rd, Yarramundi. The driver has lost control whilst navigating a left hand for an unknown reason and collided with a tree on the right hand side of the road causing the vehicle to roll and land onto its roof.”
Documents produced by NSW Police in response to a direction for production include a COPS report. The report was completed by Probationary Constable Gersbach on the day of the accident.
The COPS report records as follows: “Associated Factor: Speed involved”. It is stated that the claimant was issued with an infringement notice on 16 April 2023 for “Drive without proper control of vehicle”. Included in the report is a site diagram that identifies the rest position of the vehicle, the tree with which it collided, and the vehicle’s path of travel. The road is depicted as having a left handed crest. The diagram depicts the vehicle traveling in a straight line towards a tree located on the opposite side of the road.
The documents produced by police include Probationary Constable Gersbach’s notebook. No statements are recorded in the notebook.
Two investigation reports addressed to the insurer dated 30 May 2023 and 23 January 2024 are included in the evidence. The first report includes a description of the accident, and commentary based on the investigations undertaken, and contains a number of attachments, including a statement from Mr Earle-Joyce, a transcript of interview with Probationary Constable Gershbach, a file note of a telephone conversation with Ms Anderson, and a number of photographs.
A document styled “Investigation Log” records that Mr Twentyman, an investigator, spoke by telephone to Ms Anderson. It is recorded in the log that Ms Anderson stated she didn’t see the accident, that she “drove across it”, and that she was the first person there. She said that the scene was “very spooky, everything was in darkness and quiet and nothing was moving”, and that:
“… I got out of my car in my socks and I walked on some fluid on the road. I remember yelling out to see if anyone was there and there was nothing. It was so quiet. I think the accident occurred sometime before I got there.”
Ms Anderson was asked whether there were noises from the car cooling down, steam and fluids “and stuff like that”, to which she responded: “No, there were fluids on the ground, but nothing like that no”.
Mr Earle-Joyce’s statement dated 16 May 2023 records that:
(a) he has never had his license suspended, cancelled, or disqualified;
(b) he has never been charged with a criminal offence;
(c) other than P plate conditions there are no other conditions or restrictions on his licence;
(d) before the accident he took no medication on a regular basis that would affect his driving;
(e) he was in good health;
(f) he had owned the vehicle he was driving at the time of the accident for about a year, and
(g) he does not recall anything from about a week prior to the accident, does not remember anything about the accident, and does not know what caused the accident.
Mr Earle-Joyce stated that the vehicle was in “fair mechanical condition” when he purchased it, but that it needed repairs. The nature of those repairs is not addressed in the statement. He stated at [32] “…I had what needed to be fixed done after I bought it and kept it in good mechanical condition. I used a mechanic…”. He stated that he used the same mechanic to perform the services on the vehicle, and that at the time of the accident the vehicle “would have had a bit over 200,000km on it”.
Mr Earle-Joyce stated that the vehicle was last serviced “about a month or two” before the accident. At that time the mechanic fixed the alternator and put a new battery in. He stated that one back and one front tyre were replaced “a month or two” before the accident. The replacement tyres were second-hand, “but looked nearly new”.
The statement records that there “were no issues with driving the car immediately prior to the accident”, and that Mr Earle-Joyce believed the car was roadworthy.
Mr Earle-Joyce stated that the road on which the accident occurred was not the usual way he went to work (in Alexandria), but that he sometimes went that way when the traffic is bad. The trip to work was two hours in each direction. He sometimes worked Saturdays but never on a Sunday (the accident occurred in the early hours of Sunday morning). Mr Earle-Joyce stated that he was familiar with the area where the accident occurred.
The investigation report contains a transcript of an interview between Mr Twentyman and Probationary Constable Gershbach that took place on 21 May 2023. The Probationary Constable attended the accident scene in response to an emergency call. When he arrived, Mr Earle-Joyce’s car was on its roof, facing north, in the northbound lane. He described the vehicle as being in a “very, very bad condition”. He recalled it being a “clear, cold night”. He agreed that the area was “rural”. When he first arrived at the scene an ambulance officer was “half in the vehicle”.
Probationary Constable Gershbach confirmed that he took photographs at the scene. He also confirmed that there were no witnesses to the accident.
In response to the question “were there any skid marks left before the crash?”, he said:
“Well, it was hard – no. No skid marks. There’s photos obviously showing where the vehicle had travelled. None that I could observe.”
As to the vehicle’s path of travel, the transcript records as follows:
“Q137 ..so, from looking at – at the scarring on the tree and the- and the debris on the ground there, did you form the opinion that the vehicle was travelling southbound on Springwood Road, left the road, crossed the -crossed the insider – crossed to the incorrect side of the road, left the road and hit the north side of that tree.
A137 Yeah. That’s correct. That’s what I’ve come to - - -“
There is then the following exchange:
“Q140 Okay. And – and – and, you mentioned before you weren’t sure if the tree was the first or second impact.
A140Yes.
Q141What do you mean by that?
A141Well look, obviously it’s hard to deduct what actually happened before the- the collision. Possibly, for an unknown reason, it’s hit a rock or an object and then rolled and then hit the tree. Because you can see - - -
Q142Were there any – were there any deformities on the road at all? What condition was the road in?
A142The condition on the road was good.
Q143It was – was sealed tar?
A143Yeah.
Q144Were there any rocks on the road that you observed?
A144Not that I observed.
Q145Was there anything on the road other than the tar?
A145No. There was nothing on the road. Like, when we arrived there was – nothing stood out to me as, there’s a rock there, you know, part of the – other than the obvious debris is from the impact.
The Probationary Constable agreed that the roadway was relatively flat, “if not a couple of degrees downhill”. The transcript also contains the version provided by Mr Earle-Joyce when interviewed on 6 May 2023, and that is addressed later in these reasons.
Probationary Constable Gershbach confirmed that he did not inspect the tyres,[9] and confirmed that no inspection of the vehicle was undertaken to determine whether it was roadworthy before the accident.[10]
[9] A168.
[10] A169.
The transcript records that the Probationary Constable was shown a picture of the rear tyre, and the following exchange occurs:
“Q173 Is that a – is that bald? Is that bald? It’s just a bit hard to tell in the picture.
A173It does. I don’t know whether it’s the resolution of the photo. But it does look like that the inside of the tyre is bald.
Q174Okay. So, just for the record, we’re looking at a photo of the car on its roof at the scene and the passenger rear tyre, looks like it’s got tread on the outside. It looks like a – it looks like it’s got no tread at all.
A174Yeah.
Q175But, I – I’m not a hundred percent confident whether that’s real or whether it’s the photo resolution.
A175Yeah. With the other one, it’s unable to determine.
Q176It’s too blurry, yeah
A176Let me have a look at the other photos for you. Yeah. So - - -“
When asked whether he had formed an opinion as to what happened, the Probationary Constable responded “Yes. I formed an opinion whether or not it’s correct or not”.[11] He went on to say:
“that for an unknown reason – and he can’t provide it, he’s not controlled the vehicle properly whether it be due to speed or conditions or what not[12]…
…and therefore he’s committed an offence as a driver, not controlling vehicle properly ‘cause he hasn’t been able to provide a reason as to why[13]…
…he’s had that collision[14]”.
[11] A214.
[12] A215.
[13] A216.
[14] A217.
It was confirmed that Mr Earle-Joyce had been issued a traffic infringement notice for “drive without proper control of vehicle”.
As to speed, Probationary Constable Gershbach said this:
“Q223 …Are you able to evaluate the speed from what – from your observations?
A223Look, I’m obviously no expert.
Q224Yeah.
A224But, from the major damage done to the vehicle, look 120 maybe. It would have been over the speed limit.
Q225The speed limit there is what?
A225It’s posted 80, 80 kilometres an hour.
A226…is that your opinion as an estimate, is it something based on discussions by the police?
A226It’s my opinion - - -
Q227 Yep
A227- - - and, also based on the discussion with the people present at the time - - -
Q228…So, were there more experienced police officers that also had a similar opinion?
A228Yeah. So, our supervisor at the time [Pintatara]…
Q230Yep
A230- - - he also stated that – that it probably could’ve been a – a speed issue.”
The Probationary Constable was asked whether it looked like the vehicle had taken any evasive action prior to hitting the tree, to which he responded “No. It didn’t. There was no marks on the road”.[15] Later in the transcript he stated that, with respect to speed, “it was hard – at the time…to make determinations”.[16] He also stated that he was “not aware” whether there was any mechanical failure or allegation of mechanical failure that could have contributed to the collision.[17]
[15] A234.
[16] A289.
[17] A290.
The second investigation report contains records from NSW Police obtained by the investigator in response to a request made under the Government Information (Public Access) Act 2009 (GIPA), provided under cover of correspondence from NSW Police dated 19 January 2024. Contained in the material is a further version of the COPS report that includes a transcribed version of the interview described below. There is also a narrative description of the accident and the involvement of emergency services, together with the site diagram discussed earlier, and photographs taken at the scene. These photographs were also produced by police in response to the direction for production.
The recorded interview with Mr Earle-Joyce
The material produced by NSW Police under direction includes body worn camera footage of an interview of Mr Earle-Joyce conducted by Probationary Constable Gersbach on
6 May 2023[18].
[18] The footage commences at 6.44pm. The audio commences at 6.45.04pm.
When asked to provide a version of the accident, Mr Earle-Joyce stated:
“I have no recollection and maybe for about even up to four weeks before the crash I have no memory.”
He confirmed that he had no recollection of where he was coming from or where he was going.
Mr Earle-Joyce confirmed that the vehicle involved in the accident was his. When asked whether there was anything wrong with the car, he stated “not that I know of”.
Mr Earle-Joyce confirmed that he had been driving for a year. In response to a question about whether he had previously had an accident “like this before”, he responded “never”. He confirmed that he usually listens to music in the car.
Mr Earle-Joyce confirmed that he did not take illicit substances, was not a big drinker, and that he had stopped taking Seroquel about a year prior to the accident.
Mr Earle-Joyce was asked to sign the version recorded by Probationary Constable Gersbach in his notebook, and can be seen doing so.
Mr Earle-Joyce’s sister can be seen and heard in the footage. She confirmed that the handbag found in the vehicle at the accident scene was hers, and that she had left it in the vehicle two days earlier.
Photographic evidence
The documents produced by police include a number of photographs taken at the accident scene. There are also photographs provided by police in response to the GIPA application. A number of photographs show Mr Earle-Joyce’s vehicle on its roof on the roadway. The vehicle clearly suffered significant damage. There is no street lighting; the only lighting appearing to come from emergency vehicles and first responders.
There are photographs that depict the tree with which the vehicle collided, and foliage from the tree, including branches, can be seen near the tree and on the roadway.
The photographs also show that the roadway was surrounded by bushland on either side.
Some of the photographs depict what appears to be liquid on the roadway in close proximity to the vehicle. Although the roadway appears to be otherwise dry, there are some photographs that may depict liquid or water on the road.
I am not satisfied that a finding on the probabilities can be made on the basis of the photographs as to whether there was, other than in the immediate vicinity of the vehicle, water or other liquid on the roadway. I am satisfied that the fluid depicted on the road in the immediate vicinity of the vehicle has emanated from the vehicle.[19]
[19] See photographs at pages 141, 142, 143, 144, 145, 150, 151 in the joint bundle, and the corresponding photographs produced under direction by police [joint bundle pages 56-73]. The photographs provided in response to the GIPA application are clearer and are of better visual quality than those produced under direction.
The investigation report dated 30 May 2023 contains a number of photographs. Photograph 1 is an aerial view of the scene marked with the collision location. Photograph 2 is described as facing south on Springwood Road. The tree with which Mr Earle-Joyce’s vehicle collided is depicted on the right side of the road, leaning to the left. Photograph 3 is described as facing south on Springwood Road, with the tree in the right foreground leaning to the left. Photographs 6-12 depict the extensive damage to Mr Earle-Joyce’s vehicle.
SUBMISSIONS
The insurer relies on written submissions dated 27 September 2024. The insurer’s submissions refer to the application for personal injury benefits (that does not include a description of the accident), the NSW Ambulance report, and the police report. Reliance is placed on Probationary Constable Gersbach’s evidence (at [2.7] - [2.13]), and the evidence of Senior Constable Pintatara.
The insurer submits that “fault” in the context of ss 3.11 and 3.28 refers to the contributory negligence of the injured person, and that this involves consideration of the extent to which the injured person departed from the standard of care they are required to observe in the interests of their own safety.
In the insurer’s submission, the standard of care of a driver of a motor vehicle requires the driver to exercise the reasonable care and skill expected of a reasonable person in all of the circumstances: Imbree v McNeilly [2008] HCA 40.
The insurer submits that the claimant “greatly departed” from the standard of care he was required to observe in the interests of his own safety, and is therefore wholly or mostly at fault for the accident and his injuries.
The insurer submits that there is no evidence to support the various allegations made by
Mr Earle-Joyce as to the other possible causes of the accident – being wet weather conditions, roadworks, the presence of animals on the roadway, or an unidentified vehicle.
The insurer argues that the doctrine of res ipsa loquitor applies, and refers to Richards at [102]. The insurer emphasises the statement in Richards[20] that “when a car runs off the road, that fact alone and unexplained, provides some evidence of negligence”.
[20] Also referred to in Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [30] and originally by Windeyer J in Piening v Wanless (1968) 117 CLR 498 at 511.
In the insurer’s submission, all of the physical evidence at the scene suggests Mr Earle-Joyce, whilst navigating a left hand bend, crossed to the wrong side of the road and left the roadway colliding with a tree. In this regard, the insurer relies on the evidence of police who attended the scene that they could not identify any skid marks or evidence of evasive action taken by Mr Earle-Joyce.
The insurer also submits that the lay opinion of Probationary Constable Gersbach, and the photographs of the vehicle showing significant crush damage, most likely suggest that the claimant was travelling at an unsafe and excessive speed, in excess of 80kmph.
In the insurer’s submission, a reasonable and prudent driver in the position of Mr Earle-Joyce would “most likely have avoided the motor accident”. Accordingly, the insurer submits that
Mr Earle-Joyce was wholly or mostly at fault for the accident and his injuries.
In further submissions dated 24 October 2024, the insurer records that it agrees Mr Earle-Joyce sustained very severe “non-threshold” injuries in the accident, and will require ongoing treatment for those injuries.
The submissions record that, with respect to the allegation of speeding, the reference made in its submissions of 27 September 2024 at [2.4] to the accident occurring on a Sunday is not intended to imply that Mr Earle-Joyce was more likely than not travelling at an excessive speed. The insurer confirms that it does not submit any such inference ought be drawn, and clarified that the reference to the accident occurring on a Sunday was intended to outline the precise factual circumstances of the accident, as set out in Mr Earle-Joyce’s statement dated 16 May 2023.
In circumstances where Mr Earle-Joyce conceded to police when interviewed that he had “no recollection of the crash”, and in his statement dated 16 May 2023 said:
“I do not recall anything from about a week prior to the accident. I was in a coma for four days after the accident…. I don’t remember anything about the accident”
the insurer argues that Mr Earle-Joyce’s “evidence”, in his submissions dated 3 and
4 October 2024, that he was not speeding at the time of the accident ought be rejected on the basis that it is speculation.
In terms of the mechanic who allegedly serviced Mr Earle-Joyce’s vehicle prior to the accident (Mr Jeong), the insurer records that it served a direction for production on the mechanic, and that the direction was not responded to.
The insurer argues that Mr Earle-Joyce has not served any evidence to establish that any fault on the part of the mechanic caused the accident or his injuries. Further, the insurer refers to Mr Earle-Joyce’s evidence that the tyres that were replaced just prior to the accident by the mechanic “were second-hand… but looked nearly new”, and that “there were no issues with driving the car immediately prior to the accident” and that he “believe[d] [his] car was roadworthy prior to the accident”.[21]
[21] Statement dated 16 May 2023.
The insurer submits that any determination as to whether the mechanic was at fault for the accident and the claimant’s injuries would “fall outside the Member’s powers” – noting that the mechanic’s conduct would not constitute use and operation of the vehicle within the meaning of s 1.4 of the MAI Act.
Finally, with respect to “fault” the insurer makes a general reference to the reasoning of Mitchelmore J in Evic.
Mr Earle-Joyce’s case
Mr Earle-Joyce’s case is as follows:
(a) he was not at fault because the road was wet;[22]
(b) the statement in the police report that the road was dry is wrong; it was raining on the day of the accident;[23]
(c) there was dirt on the road as a result of road work being undertaken;[24]
(d) there may have been another car involved;[25]
(e) the location at which the accident occurred “was filled with animals” such as wombats and kangaroos, and wildlife frequently crosses the road;[26]
(f) he was “not driving a sports car” or a high performance car and has a “clean” driving record;[27]
(g) he had no alcohol or drugs in his system;[28]
(h) the accident was not caused by a bald tyre,[29] and
(i) his vehicle was inspected two days before the accident for registration. If there was a problem with the car, including bald tyres, the mechanic would be at fault.[30]
[22] Email to the insurer sent on 13 February 2024 at 9.17 am.
[23] Email to the insurer sent on 19 February 2024 at 4.20pm.
[24] Email to the insurer sent 13 February 2024 at 9.17 am and email to the insurer sent on 19 February 2024 at 4:20pm.
[25] Email to the insurer sent 13 February 2024 at 9.17 am.
[26] Email to the insurer sent 13 February 2024 at 9.17 am and email to the insurer sent on 19 February 2024 at 4:20pm.
[27] Email to the insurer sent 13 February 2024 at 9.17 am and email to the insurer sent on 19 February 2024 at 4:20pm.
[28] Email to the insurer sent 19 February 2024 at 4.20pm.
[29] Email to the insurer sent 1 October 2024 at 9.36am.
[30] Email to the insurer sent 1 October 2024 at 9.36am.
Mr Earle-Joyce’s application to the Commission records relevantly as follows:
“…I had no alcohole [sic] or drugs I have a clean record and was not driving a sport car there is a lot of animals and kangaroos around the accident could have been caused by that or anything…”
On 1 October 2024[31] Mr Earle-Joyce referred to the absence of alcohol or drugs in his blood test, the possibility of a kangaroo or something else hitting his car, that another car may have been involved, and that he was not speeding. He stated that he:
“… drove up and down there multiple times I know that road and just because it was a Sunday does not mean I’m going to speed or was not working at it stated in the police [constable’s] words in his opinion it’s not true.”
[31] Email to the insurer sent at 9.48.35am.
He also referred to the possibility that he “could have left the road to avoid that car that was coming at me”.[32]
[32] Email to the insurer sent 1 October 2024 at 9.50.45am.
Mr Earle-Joyce’s submissions dated 3 October 2024 state that he disagrees that he was at fault for the accident, that he was not speeding, and that the mechanic who renewed his safety slip should be investigated further if there was a bald tyre. Mr Earle-Joyce also stated that:
“I had a dream of a car coming at me and me swerving away. How come this has not been investigated. It could be trauma memory not a dream…”
He also stated that he “had no alcohole [sic] or drugs at the time of the incident”, and disputes that he was speeding.
CONSIDERATION
While Mr Earle-Joyce does not recall the circumstances in which the accident occurred, and there were no witnesses to the accident, there is no doubt that he was involved in a “motor accident” on 16 April 2023, or that he sustained significant injuries as a result of the accident. In this regard, the insurer agrees he sustained “non-threshold injuries”.[33]
[33] Insurer’s submissions dated 27 September 2024 at [1.2].
The insurer argues that Mr Earle-Joyce is wholly or mostly at fault for the motor accident and his injuries. Implicit in this submission is that, if fault is established, a finding may be made that his contributory negligence does not amount to 100%.
The statutory test in ss 3.11 and 3.28 is concerned with contributory negligence not for the injury, but for the motor accident,[34] and is directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident.[35]
[34] Evic at [57].
[35] Evic at [62].
Richards establishes that the insurer may rely on res ipsa loquitor,[36] and that the doctrine may permit fault to be inferred from a fact which is unexplained.[37] Res ipsa loquitor is not a distinct, substantive rule of law, but an inferential reasoning process: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 (Schellenberg) Gleeson CJ and McHugh J at [22].
[36] At [101].
[37] At [102].
If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver failed to exercise reasonable care: Piening v Wanless (1968) 117 CLR 498 at 511; Schellenberg per Gaudron J at [73]; Richards at [102].
Whether fault is proven depends on how clearly and convincingly the unexplained fact speaks of a failure to exercise reasonable care in the particular circumstances: Anchor Products Limited v Hedges (1966) 115 CLR 493; [1966] HCA 70 at 500.[38] All of the circumstances and evidence must still be taken into account and considered as a whole.[39]
[38] Cited in Richards at [103].
[39] Richards at [104].
What has to be considered together with this doctrine is the circumstantial evidence which shed light on the question of what caused the accident, in order to resolve whether the insurer has established that the collision was caused wholly or mostly by Mr Earle-Joyce’s fault.[40]
[40] Richards at [109].
Findings cannot rest simply on a consideration of possibilities,[41] and must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 367.
[41] Richards at [121].
Findings – the accident
I make the following findings:
(a) At some time between 4am and 4.48am on 16 April 2023 Mr Earle-Joyce was driving his vehicle in a generally southbound direction on Springwood Road, approximately 500m south from the intersection with Hillcrest Road, Yarramundi;
(b) Springwood Road runs generally north-south;
(c) there was one lane of travel in each direction with double unbroken separation lines;
(d) the speed limit was 80kmph;
(e) the road was sealed;
(f) when the accident occurred the roadway was not illuminated by street lighting, and the area was dark;
(g) the weather was fine;
(h) the road surface was sealed;
(i) at the location of the accident Springwood Road was lined by bushland on both sides;
(j) at the time of the accident Mr Earle-Joyce was not under the influence of alcohol, illicit drugs, or other medication, and
(k) when the accident occurred Mr Earle-Joyce was wearing a seatbelt.
Mr Earle-Joyce submits that there may have been dirt on the road as a result of roadwork, and that the presence of dirt on the roadway may have played a causative role in the accident. While possible, I am not satisfied that there is probative evidence that would support such a finding on the balance of probabilities.
I am satisfied on the probabilities that when the accident occurred the stretch of Springwood Road on which Mr Earle-Joyce was travelling was dry. I accept that police inspected the road surface, and found it to be dry. I have also considered the photographs taken by police at the scene.
I accept Mr Earle-Joyce’s evidence that one front and one rear tyre on the vehicle were replaced with second hand tyres approximately a month or two prior to the accident. I also accept his evidence that the replacement tyres “looked nearly new”. I am not persuaded on the balance of probabilities that any of the tyres on the vehicle were bald, or that the condition of the tyres was a cause of the accident. In this regard, Probationary Constable Gershbach confirmed that he did not inspect the tyres and that no inspection of the vehicle was undertaken to determine whether it was roadworthy before the accident. Further, while the possibility of a rear tyre being bald was raised with Probationary Constable Gershbach by the investigator appointed by the insurer, he was not able to determine, based on the photographs, whether the tyre was bald.[42]
I am mindful that care must be taken when using photographs which are tendered in evidence in factual inquiries: See discussion in Taitoko v R [2020] NSWCCA 43 at [81], and Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 at [42]. I have considered the photographs in evidence before me, and am not satisfied that a finding can be made that any of the tyres on the vehicle were bald on the basis of the photographs.
I am not satisfied on the evidence before me that any or all of the tyres on Mr Earle-Joyce’s vehicle were in a poor or unroadworthy condition prior to the accident.
I am not persuaded that there was a mechanical defect in Mr Earle-Joyce’s vehicle that caused the accident. I accept Mr Earle-Joyce’s evidence that he kept the vehicle in good mechanical condition, that the vehicle was serviced “about a month or two” prior to the accident, that there were no issues driving the vehicle prior to the accident, and that he believed the car was roadworthy. There is no probative evidence that would support a contrary finding on the probabilities.
The ambulance report records that the accident was a “high speed and high impact” accident. The police report records that the pre-crash speed was 100kmph. The “Crash Summary Details” in the report state that “the driver lost control whilst navigating a far left hand for an unknown reason…”. The COPS report records: “Associated Factor: Speed involved”.
Probationary Constable Gershbach told the investigator that, based on the damage to the vehicle, he thought Mr Earle-Joyce had been traveling at a speed of “120 maybe” at the time of the accident, and that “it would have been over the speed limit”. He did however qualify his opinion in this regard, prefacing his answer by saying “[l]ook, I’m obviously no expert”. He went on to say that his estimate was based on discussions with other police present at the time, including the supervising officer, Senior Constable Pintatara. In this regard, Probationary Constable Gershbach told the investigator that the Senior Constable “also stated that – that it probably could’ve been … a speed issue”. Probationary Constable Gershbach later said, with respect to speed, that it was hard at the time “to make determinations”.
The author of the Ambulance report recorded that the accident was “high speed and high impact”. Precisely what speed constituted “high speed” is not clear. The attending police were of the opinion that “speed was an issue”, and proffered opinions about the possible speed at which the vehicle being driven by Mr Earle-Joyce was travelling. In short, they thought that the vehicle was travelling above the posted 80kmph speed limit.
When asked by the investigator whether he had formed an opinion about what had happened, Probationary Constable Gersbach confirmed that he had “…formed an opinion whether or not it’s correct or not”. He went on to say that “for an unknown reason” Mr Earle-Joyce has “not controlled the vehicle properly whether it be due to speed or conditions or what not”.
While the photographic evidence satisfies me that Mr Earle-Joyce’s vehicle sustained significant damage consistent with an accident that occurred at speed, I am not satisfied that I can make a finding on the probabilities about the exact speed at which Mr Earle-Joyce was travelling immediately prior to the accident. I infer that it was at least 80kmph.
Probationary Constable Gersbach told the investigator that he was not sure if the tree was the first or second impact. He said that it was “hard to deduct what actually happened before the collision”, and raised the possibility that the vehicle had “hit a rock or an object and then rolled and then hit the tree”. He went on to state that the condition of the road was good, and that he did not observe rocks on the road. He said “[t]here was nothing on the road”, and that “nothing stood out” to him. He did, however, say that there was “a rock there…part of the – other than the obvious debris is from the impact”.
It is possible that the impact with the tree was not the first impact, and that there was a prior impact with a rock or other object on the road. These possibilities do not, however, rise to probabilities.
While it is possible that Mr Earle-Joyce applied the brakes of his vehicle prior to the accident, there is no evidence before me that skid marks were found on the road. Probationary Constable Gershbach did not identify any marks on the road. He also said that it did not look like the vehicle had taken evasive action.
Mr Earle-Joyce argues that another vehicle may have been involved in the collision. While possible, there is no probative evidence that would support a finding on the balance of probabilities that another vehicle had a causative roll to play in the accident.
Mr Earle-Joyce also argues that there may have been an animal on the road. Springwood Road at the location of the accident was lined by bushland on both sides. Given the location at which the accident occurred, and that it occurred in the early hours of the morning and was very dark, it is possible there was an animal on the roadway, and that Mr Earle-Joyce took evasive action in response to the presence of the animal. The possibility of this having occurred does not, however, rise to a probability on the evidence before me.
I find that while navigating a sweeping left hand corner for an unknown reason Mr Earle-Joyce’s vehicle crossed to the northbound lane of Springwood Road, and that after crossing to the northbound lane, the vehicle left the road and collided with a tree approximately 2m off the western side of the road.
I find that the driver’s side door and front of the vehicle collided with a tree located on the western (righthand) side of the road, and after hitting the tree the vehicle rolled and came to rest on its roof in the northbound lane to the south of the tree.
Was the accident caused by Mr Earle-Joyce’s failure to take reasonable care?
I have taken into consideration the findings of fact I have made, including that the road was sealed and dry, the weather was fine, that it was dark and there was no street lighting, and that Mr Earle-Joyce was travelling at a speed of at least 80kmph. The accident occurred when he was navigating a sweeping left hand corner. The vehicle impacted forcefully with the tree. It is possible that there was either wildlife or an object on the road. There were no witnesses, and Mr Earle-Joyce has no recollection of events. He was not taking medication at the time, and was wearing a seatbelt. While possible, there is no evidence that he had fallen asleep. Police who attended the accident scene did not identify any skid marks, nor did they identify dead wildlife. They did, however, identify debris on the roadway. While the debris is likely to have been a result of the collision, it is possible that some of the debris was on the roadway prior to the accident.
There are, accordingly, a number of possible (as opposed to probable) explanations for the accident, some of which may bespeak a failure to exercise reasonable care on the part of Mr Earle-Joyce, and others that may not.
There is an absence of explanation for Mr Earle-Joyce’s vehicle crossing from the southbound to the northbound lane, leaving the roadway, and colliding with a tree approximately 2m off the western side of the road. I am satisfied that, as occurred here, a vehicle running off the road and colliding with a tree would not ordinarily occur without a failure to exercise reasonable care on the part of the driver. Mr Earle-Joyce was driving the vehicle, and was in control of the vehicle. Accordingly, res ipsa loquitor arises for consideration.
Having considered the evidence as a whole, I have reached an actual sense of persuasion, on the balance of probabilities, that it is appropriate to draw an inference that the accident was caused by a failure by Mr Earle-Joyce to exercise reasonable skill and care in the driving of his vehicle. I am satisfied that the accident was caused by his fault.
Was the accident caused wholly or mostly by the fault of Mr Earle-Joyce?
Having found that the accident was caused by Mr Earle-Joyce’s failure to take reasonable care I am required to assess his contributory negligence in accordance with s 3.38(3)(c) of the MAI Act: Evic at [73].
The driver of a motor vehicle is required to take reasonable care having regard to all the circumstances: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) per McHugh J at [26]. The duty is always the same: to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. That will often require 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: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
I have found, by an inferential process of reasoning, that the accident was caused by Mr Earle-Joyce’s fault. I have not, however, been able to make specific findings with respect to the precise acts or omissions that constituted his failure to exercise reasonable care.
Assessing what is just and equitable in these circumstances is not a straightforward task. On the facts found, Mr Earle-Joyce’s departure from the standard of care he was required to exercise sits somewhere on a spectrum, at one end of which is gross negligence and on the other a momentary lapse of attention that amounted to a failure to exercise reasonable care.
A finding of 100% contributory negligence is permitted: s 5S CL Act. Such a finding is reserved for conduct that constitutes “a worst possible case” of departure from the standard of care: Davis v Swift [2014] NSWCA 458 at [52] per Meagher JA (Leeming JA agreeing). I am not persuaded that it would be just and equitable to make such a finding in the circumstances of this case, where specific findings (on the balance of probabilities) about the conduct of Mr Earle-Joyce that amounted to a failure to exercise reasonable care cannot be made. It follows that the accident was not caused wholly by his fault.
In circumstances where his failure to exercise reasonable care falls somewhere on the spectrum to which I have earlier referred, I find that it is just and equitable to assess Mr Earle-Joyce’s contributory negligence at 60%. This reflects a high level of departure from the standard of care required by a driver in his position. I am not satisfied that Mr Earle-Joyce’s contributory negligence was greater than 61%.
For the foregoing reasons, I find that for the purposes of ss 3.11 and 3.28 of the MAI Act the accident was not caused wholly or mostly by the fault of Mr Earle-Joyce.
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