Ford v SGIC General Insurance Limited No. Scgrg-99-1194
[2000] SASC 206
•30 June 2000
FORD v SGIC GENERAL INSURANCE LIMITED
[2000] SASC 206
Magistrates Appeal: Civil
1................ DEBELLE J...... Just after midnight on 22 February 1997 the appellant was involved in a motor vehicle accident when the car he was driving struck the rear of a truck parked at the side of a road. The appellant’s car was covered by a policy of comprehensive insurance issued by SGIC General Insurance Ltd (“SGIC”). SGIC refused to indemnify the appellant under the policy on the ground that the appellant was driving the car whilst under the influence of intoxicating liquor at the time of the accident.
The appellant commenced an action in the Adelaide Magistrates Court claiming that SGIC had wrongly refused to indemnify him. The appellant’s action was dismissed. He appeals to this Court. There were other grounds on which the SGIC denied liability to indemnify the appellant. However, those grounds turned on the question whether the appellant was driving while affected by liquor. That was, therefore, the central issue at the trial and on this appeal.
The accident occurred in the following way. The appellant was driving along Coventry Road at Smithfield. He had a passenger in his vehicle. Coventry Road is a straight road. Having regard to the direction in which the appellant was driving, the truck was parked on the left hand side of the road. Another car was travelling behind the appellant’s car. It was driven by Ms Murray. She had three passengers in her car. One of the passengers was her cousin, Mr Miller, who was sitting in the front passenger’s seat. The evidence of both Ms Murray and Miller was that the truck was clearly visible. Ms Murray’s car was travelling at about 60 kph. The appellant’s car was travelling more slowly and her car was closing the gap between them. Miller saw the appellant’s car veer to the middle of the road and then to the left. That action caused him to comment to Ms Murray that he believed the appellant’s car would hit the truck. Very shortly afterwards, the collision occurred. There was nothing to obscure the view of the parked truck.
The appellant and the passenger in his car were injured in the accident. An ambulance was called to the scene of the accident. The driver of the ambulance performed a test called “the Glascow Coma Score” (“the GCS score”). It is an assessment of three aspects of human consciousness, eye opening, verbal response and motor response with a grading for each. The ambulance officer assessed the appellant at 15, the highest level. The appellant had told the ambulance officer he had been drinking. The ambulance officer could not remember whether he formed any view of the appellant’s level of intoxication. Police officers also came to the scene of the accident. The appellant admitted to a police officer that he had been drinking but did not say how much. Ms Murray did not get close enough to the appellant to form any view whether the appellant was intoxicated. Mr Miller’s evidence was that he thought that the appellant was drunk. That conclusion was based on the manner in which he was driving and his behaviour after the accident.
There was an empty stubby size bottle of beer in the appellant’s car and the car smelled of alcohol. The appellant denied that he and his passenger had been drinking from the bottle. I do not think much reliance can be placed on the evidence concerning the beer bottle in the car.
The appellant was admitted to the Lyell McEwin Hospital. On admission, he was seen by Dr Ly. Dr Ly noted that the appellant was alert and responsive. The medical evidence was that there was no objective evidence of any injury to the head. The appellant’s injuries were cuts and abrasions to one arm. Dr Ly informed the appellant that he intended to take a blood sample to determine the level of alcohol in his blood. The appellant left the hospital before the blood could be taken.
The appellant returned to the hospital next morning. He was examined by Dr Huyhn Chan, who noted that the appellant smelled of alcohol and that he was clinically dehydrated. However, he gave the appellant a GCS score of 15. He conducted a blood test. The analysis showed a blood alcohol level of 0.109. The analysis was admitted over the objection of the appellant.
The appellant could not explain his reason for leaving the hospital. He said that he had had a total lapse of memory about what had happened at the hospital and could not explain his departure. He said that his next memory was waking up on the lawn that morning in front of a friend’s house near the hospital. His friend let him into the house and gave him one or two cups of tea. He said that he filled the cup on several occasions with whisky. He recognised the whisky as a bottle of Glen Fiddich which he had recently given the friend as a present.
The appellant’s parents also went to the scene of the accident after it had happened. His father gave evidence that the appellant did not appear to be affected by liquor. However, when the appellant’s parents arrived, the appellant was lying on a stretcher before being placed in the ambulance. His father was not, therefore, in a good position to make an assessment. They went to the hospital. They left when they thought the appellant was still at the hospital. They returned to the hospital next morning.
The appellant’s car was extensively damaged and it was not economic to repair it. Plainly, the force of the impact was substantial. On Monday, 24 February, the appellant went to the premises of Smithfield Crash Repairs where his car had been taken after the accident. At those premises he completed an SGIC claim form for the cost of repairs. The form included the following question:
“What type and quantity of alcohol/drugs had been consumed in the 8 hour period immediately prior to the accident by the driver?”
He answered, “Unknown”. He ticked a question asking whether a blood test had been taken. SGIC asked for a copy of the analysis. It had to make several requests. The appellant did not supply it until 11 September 1997.
The appellant has given different versions of how much he had been drinking that night. In a SGIC Motor Accident Report Form he completed on 1 August 1997 in relation to a claim for personal injury, he admitted drinking approximately four to five beers between 7.00pm and midnight. He stated that he had not consumed any drugs or medication. The highest estimate of his consumption is four to five beers. The appellant’s evidence was that he had drunk a pint of beer that afternoon at the Central Districts Football Club between 4.30 pm and 5.30 pm. He said that he returned home for a meal and had gone out later and had “several drinks at the Blacksmith Inn”. His evidence as to his consumption at the Blacksmith Inn varied. In examination-in-chief he said that he had consumed between two and four pints. In cross-examination he said it was four to five pints of Newcastle Ale. Newcastle Ale is a full strength beer. Later, in cross-examination, he described his consumption as several drinks at the hotel. He was at the hotel from about 7.30 pm to 8.00 pm until about midnight.
The magistrate found that the truck was parked at the side of the road and was clearly visible. He also found that there was no suggestion of difficulty with visibility, nor any circumstances in road surface to explain the accident. The appellant does not challenge those findings.
The appellant’s explanation for not seeing the truck was that it was dark and he was paying attention to directions being given to him by his passenger. He said that he did not see the truck at all. He said he was looking for a road on the right hand side of Coventry Road. The magistrate found that the appellant was driving in an unusual manner and that his failure to avoid the truck was a very gross error of driving judgment, although not, of itself, proof that the appellant’s driving was affected by liquor. He said:
“I make these particular findings of fact. I note the nature of the collision. It was on a straight road. There is no suggestion of difficult visual conditions nor any circumstances in the road surface to explain the accident. The truck was clearly visible and parked. Although Mr Ford’s attention may have been directed to try and see a side street to the right, given that he was travelling at less than the speed limit, which is commendable, his failure to avoid the stationery [sic] parked truck is a very gross error of driving judgment, although not of itself proof of intoxication. There is the evidence which I accept of Shannon Miller, that the manner of driving prior to the collision involved the vehicle driven by Ford, not proceeding in a straight line but veering to the right and to the left. This is indicative of driving outside the norm.”
The appellant does not challenge those findings which were clearly open on the evidence. The truck was clearly visible for some distance. The appellant ought to have seen it well before the accident occurred. He ought to have been aware of it even if he was also responding to his friend’s directions. The suggestion that he was distracted does not explain the accident. Given that he was driving slowly, I agree with the magistrate’s assessment that the appellant’s failure to avoid the stationary parked truck was a “very gross error of driving judgment”.
The magistrate then turned his attention to the question whether the appellant was affected by liquor. He noted the appellant had been drinking pints of beer during the evening. He described the appellant’s departure from the hospital as a strange fact. He said:
“There is the strange fact that Mr Ford absconded or left the hospital, just before his blood test. He says he did so in circumstances he cannot now explain because he has suffered some form of amnesia about those circumstances. The fact that he left the hospital just before the blood test may suggest the reason for leaving. The amnesia must be viewed with suspicion in view of the fact that he had been assessed by two medical people, the ambulance officer and the doctor as having been quite alert and apparently not concussed, or otherwise having suffered any head type injury. When you put that collection of facts together with his own knowledge that he had been drinking, I return to the word absconding as being appropriate.
I suggest that leaving whilst still in an apparently alert condition and certainly alert enough to be able to leave, can be taken as evidence of absconding to avoid the blood test.”
The magistrate then turned to the answer to the question on the claim form as to whether any liquor had been consumed. He found that the use of the word “unknown” was a consciously incorrect statement. He said, “I find it to have been deliberately coy and hiding reality”. He also referred to the fact that the appellant had been quite dilatory in seeking to recover under the policy of insurance. Finally, he turned to the certificate as to the blood alcohol level after blood had been taken from the appellant on the morning of 23 February. He said:
“In my finding, I can infer from the fact that the blood certificate showed alcohol in the sample of Mr Ford’s blood, in combinations [sic] with the fact that he was clinically dehydrated in the morning (a symptom consistent with sub-substantial alcohol consumption) as evidence of significant alcohol in his blood when the sample was taken. His own explanation that he consumed a substantial quantity of scotch in the very morning, just before he went to the hospital is an admission of his own expectation that the reading may be right and had to be explained.
It is my finding that the story about the whisky is just that, a story to explain a problem not the truthful answer to the problem.”
He therefore held that the appellant’s claim should be dismissed.
It was an important part of the appellant’s argument that the magistrate had wrongly admitted the certificate as to the analysis of the appellant’s blood alcohol level made after the blood test on the Sunday morning. No expert evidence was called to assist the court in any calculation back of what the blood alcohol level of the appellant was at any particular time. It is not clear what use the magistrate has made of the certificate. His reasons indicate that he did not accept that the appellant had drunk any whisky that morning. Instead, he dismisses it as untruthful. He then continues by stating that “the combination of factual findings” leads him to the conclusion that the appellant was affected by liquor when the accident occurred. It is not entirely clear whether he has relied on the certificate for that purpose. On one view, the reference to “the combination of factual findings” is a reference to all of his previous findings of fact and to the fact that he has found that the appellant gave an untruthful account of drinking liquor. His reasons were given ex tempore and must, therefore, not be subjected to a close scrutiny for the purposes of determining their true meaning. However, it must be acknowledged that, even on a liberal reading of the magistrate’s reasons, it is not entirely clear whether he has had regard to the certificate. In the absence of expert evidence, the certificate had little evidentiary value. But, even if it is assumed that he did, I do not think that it leads to the conclusion that the magistrate has erred in reaching his conclusion.
It was not open to the magistrate to endeavour to calculate the appellant’s blood alcohol level at the time of the accident, some nine hours before the blood had been taken. Although magistrates might, through their experience in dealing with this kind of evidence, acquire an intelligent layman’s appreciation for the likely result, it does not substitute for expert evidence. Furthermore, an intelligent layman’s appreciation would demonstrate that, if the appellant had consumed alcohol after the accident, a reading of 0.109 at 9.45 am on the Sunday would calculate back to an extremely high level of intoxication inconsistent with the fact that neither the ambulance officer nor Dr Ly nor Mr Miller believed that the appellant was markedly affected by liquor. In my view, no use can be made of the blood alcohol level disclosed by the test at 9.45 am. At best, it was consistent with the appellant having drunk whisky that morning. However, a finding to that effect does not materially assist the appellant, since drinking whisky that morning is equally consistent with the appellant deliberately drinking in an attempt to confound any blood test which might be taken that morning.
In support of his contention that he was not affected by liquor, the appellant relied on the evidence of the ambulance officer that he had scored the maximum of 15 on the GCS test when tested by the ambulance officer. He also relied on the fact that the ambulance officer noted nothing untoward about the appellant’s demeanour en route to the hospital. He relied also on Dr Ly’s assessment that he was alert and responsive. He sought to explain the collision by the fact that he was looking for a road on the right hand side of Coventry Road. It was also submitted that SGIC had not proved that the appellant knew he was about to have a blood test to determine his blood alcohol level.
It is apparent that the magistrate had regard to the totality of the evidence. That evidence contains a large number of undisputed facts. In addition, there are findings which are not in dispute. The findings which are not in dispute are:
The appellant had been drinking on the night of the accident at the Central Districts Football Club and at the Blacksmith Inn.
The appellant drove his car from the Blacksmith Inn at approximately midnight.
The appellant drove his car into the back of a stationary truck on Coventry Road.
Witnesses in the car travelling behind the appellant’s car experienced no difficulty in seeing the truck prior to the accident. The truck was clearly visible.
The appellant’s manner of driving a very short time before the collision involved a veering to the right and to the left.
After the accident the appellant admitted that he had been drinking but did not say how much.
After the accident the appellant appeared to be alert, not concussed or otherwise suffering from any type of head injury. On the assessment made by the ambulance officer at the scene, the appellant scored the maximum of 15 points. When admitted, he was examined by Dr Ly who assessed him as being alert and responsive.
After being examined by Dr Ly, the appellant was left on his own prior to a blood sample being taken. Unbeknown to medical staff, the appellant left the hospital before the blood sample could be taken.
The appellant returned the next morning and a blood sample was taken.
(10)No medical evidence was called by the appellant to support any assertion that he had experienced any injury which might explain his claim to have lost his memory.
(11)The appellant provided a curious and incomplete answer when filling in the claim form and answering the question as to the quantity of liquor he had consumed in the eight hours prior to the accident.
(12)Despite several requests by SGIC that the appellant provide a copy of the analysis, the appellant did not provide it until 11 September 1997, almost seven months later.
(13)The appellant did not pursue his claim for an indemnity with any promptness.
(14)The appellant had a significant level of alcohol in his blood when the sample was taken at 9.45 o’clock on the Sunday morning.
I have already mentioned that the magistrate’s finding that the appellant’s car had collided with the truck as a result of a gross error of driving judgment. That finding is not challenged. Although it is not of itself proof that the appellant was affected by liquor, it is a material fact which must be put into the balance.
A significant factor is the fact that the appellant left the hospital. The magistrate rejected the appellant’s explanation that he had had a total lapse of memory and, therefore, did not know why he had left the hospital. There was ample evidence on which to ground that finding. That evidence included the observation by the ambulance officer that the appellant was conscious, alert and orientated, and that he achieved the highest GCS score. It also included the fact that on the appellant’s admission to hospital Dr Ly assessed him as alert and responsive, the fact that there was no objective evidence to explain amnesia, the fact that the appellant had no injury to his head, and the fact that the appellant called no medical evidence to support his claim for amnesia or any other evidence to support it. All of those facts point to the conclusion that it was quite unlikely that the appellant had suffered amnesia or other condition which led him to leave the hospital. It must be acknowledged that, as the evidence of Dr Chan confirmed, there was the possibility of a head injury which could not be observed on clinical examination. However, when that is weighed against the other evidence, it does not seem to be likely.
Although the evidence on the question whether the appellant knew he was about to have a blood test could have been stronger, I am satisfied that the magistrate was entitled to rely, as he did, on the evidence of Nurse Miller as to the practice relating to blood tests. Nurse Miller, who attended the appellant, had no precise recollection of the particular event. That is not surprising. He gave evidence of the usual practice before a blood sample test was conducted. He said that the doctor would inform the patient that he is going to take a blood test to determine the blood alcohol level. He would then go to another room to get the required equipment and return to take the blood. It is reasonable to infer that that is what happened on this occasion. The appellant left the hospital after being examined by Dr Ly and before the blood could be taken. The hospital note records that security staff, orderlies and nursing staff were unable to find the appellant. The note continues, “absconded before blood alcohol taken”. It strains credulity to breaking point to conclude that it was a mere coincidence that the appellant’s departure from the hospital should happen to occur just after he had been examined but before the blood sample could be taken. The magistrate concluded that the appellant absconded from the hospital to avoid the blood test. He also disbelieved the appellant’s evidence that he had suffered amnesia. Those conclusions were open on the evidence. In my view, there is no ground upon which to interfere with them.
The answer, “Unknown”, given by the appellant to the question on the claim form asking what type and quantity of alcohol he consumed before the accident was also an extraordinarily odd answer. His latest statements to investigators and his evidence show that he knew that he had been drinking beer. He had admitted that he had been drinking to the ambulance officer and to a police officer. It would not have been at all difficult for the appellant simply to write, “Beer”, and then estimate the number of beers he had consumed. On its face, the answer was evasive. When the fact of that answer is put together with all of the evidence, it is clearly a deliberately evasive answer. The magistrate has disbelieved the appellant’s explanation that he was upset after seeing the damage to his car and that does not explain his curious answer. The magistrate was entitled to do so.
When regard is had to all of the facts, it is readily apparent that there was ample evidence upon which the magistrate could reach his conclusion without having any regard to the evidence of the appellant’s blood alcohol level. The appellant’s explanation for the accident is not at all convincing. The truck was clearly visible and ought to have been seen well before the accident. The appellant’s want of a proper lookout and the fact that he collided with a stationary vehicle is consistent with the appellant’s driving skills being impaired by alcohol. On his own admission, the appellant had drunk a relatively substantial quantity of beer. He deliberately absconded from the hospital before the blood test could be taken, knowing that it was to be taken. He not only avoided that test but was evasive in his answers on the claim form and when asked questions by SGIC investigators as to the quantity he had drunk. The appellant has shown by his conduct an intention to evade disclosure of any fact which might indicate whether he was affected by liquor and the fact that the appellant was alert and responsive and scored the maximum on the GCS test is not necessarily inconsistent with his being affected by liquor when driving. These and other facts mentioned above all serve to demonstrate that the magistrate was correct in deciding that the appellant was affected by liquor when he was driving. Furthermore, the magistrate had the advantage of seeing and hearing the witnesses and, in particular, the magistrate was in a better position to assess the evidence. He has not, in any respect, misused that advantage. It might be possible to separate each facet of the evidence and proffer some kind of explanation, innocent or otherwise, for it. But the evidence must be viewed in its totality. When so viewed, there is no reason to interfere with the magistrate’s decision.
When deciding that the appellant’s driving was affected by liquor, the magistrate relied on the decision in Government Insurance Office of NSW v Nowalinski (1985) 3 ANZ Ins Cas 60-629 which recognises that, although a slight ingestion of alcohol will cause a person’s driving to be affected by liquor, the exclusion requires that the appellant’s driving ability be impaired at the time of the accident. The magistrate’s conclusion was consistent with decisions such as Cassidy v State Government Insurance Office [1965] WAR 81 and Louden v British Merchants Insurance Co Ltd [1961] 1 WLR 798. The magistrate concluded that “the plain fact ... is that his level of intoxication caused the accident”. There is no reason to depart from that conclusion, although it may be noted that the exclusion has a temporal rather than a causal operation.
For all of these reasons, the appeal must be dismissed.
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