Hansen v Motor Accident Commission No. DCCIV-96-934

HANSEN & ANOR v MOTOR ACCIDENT COMMISSION
[2002] SADC 13
Judge Herriman
Civil

The first plaintiff claims damages for personal injury suffered by him in a motor vehicle accident occurring near Port Lincoln on 4 August 1993 (“the accident”).
He says that, at that time, he was a passenger in a car which was being driven by one John Blackwell (“Blackwell”) and which went out of control and overturned. Blackwell has since died, hence the action is brought against the Motor Accident Commission, pursuant to section 113(1)(b) of the Motor Vehicles Act 1959, as amended.
At relevant times, the second plaintiff was the de facto spouse of the first plaintiff and, in the original proceedings, she sought damages pursuant to section 33 of the Wrongs Act 1936, as amended. At trial, however, she discontinued her claim.
By its defence, the Motor Accident Commission squarely denies that Blackwell was the driver of the vehicle at the instant time and contends that the first plaintiff was, himself, the driver.
In consequence of that and of other financial matters, an order was made in this Court on 12 May 2000 that the issues of liability and quantum be separately tried. By a later order of Master Rice dated 4 July 2001, however, that order was varied and it was directed that the trial proceed on the preliminary question of the identity of the driver at the relevant time.
It was in that form that the matter came to me, I heard evidence going to that question, only, and I am required to determine it.
Ross Hansen
The first plaintiff (“Hansen” / “the plaintiff”) was born in 1964 and, at the time of the accident, was 29 years old. For some years prior to it, he was living with the second plaintiff (“Vandenberg”) in Lipson, a small town near Tumby Bay. There is a child of the relationship. He and Vandenberg have since separated, but the plaintiff continues to reside in Lipson.
On the day before the accident (i.e. on 3 August 1993), Hansen said, he met a number of people and they were drinking alcohol at Blackwell’s house. Vandenberg was there and amongst the others were Les Rynhart (“Rynhart”) and Mark Beek (“Beek”).
Another resident of the town is Robert White (“White”). He will be mentioned later.
Hansen had met Beek previously, but not often and, likewise, he knew Rynhart, from having lived in Port Lincoln, but only casually. He was asked what had brought them together for this occasion and said “Alcohol, I suppose” (p.78). He did not describe the time at which this conviviality began, but said it started at Blackwell’s house, then the group moved across the road to one Marty Lacks’ (“Lacks”) house, and then they came back to his place, he thought in the early hours of the next morning. During all this time, they were drinking alcohol.
They slept at Hansen’s house, but, it would appear, not for very long because they were up relatively early the next morning and went out to see Sandra Renfrey (“Renfrey”) in the nearby township of Ungarra. She was Blackwell’s partner, albeit that they did not live together. Vandenberg did not accompany them.
He said they stayed at Renfrey’s place for some three to four hours, having gone there in her car, with Blackwell (who had borrowed it) driving. Whilst they were at Renfrey’s place, he broke a false drawer in a piece of furniture by pulling on it and she became upset. Soon after that, they left. Blackwell drove them, in her car, back to Lipson. The passengers in the car were Beek, Rynhart and himself. At that stage, they were intending to go on to Port Lincoln, so they decided to stop at his house in Lipson to tell Vandenberg of this. When they arrived there, they discovered she was not at home, but he correctly predicted she would be at White’s house nearby, so they drove there.
Hansen said that he had travelled from Ungarra to Lipson in the back seat of Renfrey’s car, he thought in a position behind the driver, Blackwell, although he was not 100 per cent sure of the latter. At White’s house, he got out and went inside and Vandenberg was there. He told her he was going to Port Lincoln and would be back later. He then returned to the car and Blackwell drove off. He and Beek were in the back and Rynhart was in the front passenger seat.
He thought they then remained in the same positions as those they had occupied travelling to White’s. He had not seen any of the others alight from the car at White’s. Prior to then, at his house, they had all alighted, but had then returned to the same seats.
He said he had no memory of anything after leaving White’s house for Port Lincoln, until he awoke in Port Lincoln hospital and felt pain. He was later taken to the Royal Adelaide Hospital and spent some weeks there, before returning to Port Lincoln Hospital.
After that time, he said, he saw Blackwell in Port Lincoln, but never saw the other two (i.e. Beek and Rynhart) again. The first time he saw Blackwell was when he was returned to Port Lincoln Hospital. Blackwell came to see him and:
“He said that he said I was driving because they thought I was going to die and he didn’t want to go up for manslaughter and lose his kids, his house.” (p.83)
He did not know whether Blackwell had ever been charged by the police and did not know the whereabouts of Rynhart.
In cross-examination, he affirmed that he had seen neither Rynhart nor Beek since the accident. Blackwell had later died in his sleep at his (Hansen’s) house. Although Beek had bought a property near his house which, Hansen believed, he had intended to renovate, no work had been done on it, hence he had not seen him. He had, however, spoken to him on the phone and asked him to ring his (Hansen’s) lawyer. He had done so on a number of occasions. They had not then discussed the circumstances of the accident. He denied having spoken to Rynhart at all since the accident and denied offering either Rynhart or Beek any inducement to give evidence on his behalf.
He thought that the original drinking session had begun at Blackwell’s house at about lunch‑time on 3 August 1993. Beek or Rynhart had arrived there some time later. He (Hansen) drank West End beer. He could not remember when it was that they moved from there to Lacks’ house. He was tested on how much he drank at Blackwell’s, but at first he seemed unable to say. He then said that he might have drunk a dozen cans at Blackwell’s, although he was not exactly sure. He was “not a real big beer drinker” and he could not say whether or not he had kept pace with the others. He said none of them were then taking drugs and he was not aware of anybody smoking marijuana. He did not see any amphetamines, Serepax, Tofranil or methadone being used. He had not himself used heroin or methadone for a long time before the accident, but he then agreed, somewhat reluctantly, that he had been on the methadone program for a heroin addiction, before 1993. He thought he had been on it for approximately two years, but even so, that was prior to two years before the accident. He had not used it since.
He denied taking methadone, or any other drug, before the accident.
After they moved to Lacks’ house, they continued drinking. He was not sure whether Vandenberg was also drinking, but she was in the group. She did not drink much, habitually. He saw no drugs consumed at Lacks’. He said all four men were affected by alcohol when they were at Lacks’ and so was Renfrey. They were all “very drunk” (p.95).
When they returned to his house, there were a few beers left and they continued to drink them. They did not sleep for long and he thought they probably got up around 9 a.m. He did not remember the police coming to their house then. When they got up, there was nothing to drink, except for two beers, which the others took.
He said Blackwell and Renfrey then went to Tumby Bay, as Renfrey had to do an errand there. He did not go himself, nor did Beek or Rynhart. They brought back a six or 12‑pack of beer. He did not know who drove the car there. It was put to him that he himself went on this trip, had a drink in the Tumby Bay hotel and put some money on the TAB. He said he did not remember doing that.
When Renfrey and Blackwell returned from Tumby Bay, he and the other men and Renfrey went to her house and they drank some more. He thought he drank about a dozen beers there. He saw no prescription or other drugs used by anybody when they were there, nor did he consume any. He said that when they left Renfrey’s, he was still very drunk, as were all the others. He denied Rynhart drove them from Renfrey’s to Lipson and said that Blackwell drove at all times. They stopped at his house for 10 to 20 minutes and had some more drinks there, perhaps one drink, then they moved on, as they were looking for Vandenberg. All he was able to say was that it was after lunch when they got to his house. When they arrived at White’s house, they were all still very drunk. He thought Blackwell’s driving, up to that point, had been alright. He was asked whether he was concerned that Blackwell was very drunk and he answered “Not at the time; I was too drunk, myself” (p.104).
He thought he went inside White’s house for ten minutes. He could not say whether the others had got out of the car there, but they were seated in it when he returned. He got into the rear driver’s‑side seat, Blackwell was driving, Rynhart was in the front passenger seat and Beek was in the rear passenger‑side seat. He did not remember putting on a seatbelt and did not see the others latch them. He was unable to say when or where his last memory was and he had no recollection of passing through Tumby Bay. It was put to him that the car stopped once on the way to Port Lincoln and before the accident, but he denied it. He did not remember any stop for any of the parties to urinate and he denied getting into the driver’s seat at any time.
It was then put to him that on the way to Port Lincoln, he had had a discussion or argument with the others in the car about driving and that he had eventually got into the front seat and driven, but he denied it:
“Q.You don’t remember that.
A.No, it didn’t happen.
Q.Well, you don’t remember. It could have happened, couldn’t it, and you don’t recall.
A.Might have, yes, but I don’t think so.” (p.105)
He said Blackwell always drove Renfrey’s car and he did not think it was possible at all that somebody else had.
He denied that he had got into the driver’s seat on that trip and had then driven off at a high speed, that he soon after playfully jerked the wheel, that there had been harsh words said about that and that he had again jerked it, with the result that the car had overturned. He denied this and said Blackwell “would have been” (p.106) the driver because he was the only one who ever drove Renfrey’s car, apart from Renfrey herself. He said the first he knew of the suggestion that he had been driving, was when a policeman visited him in hospital in Adelaide and put it to him.
He was then asked about a number of his responses in his police statement, it being suggested that he was answering defensively about who was driving the car even before the suggestion was put to him that he was. He responded to that by saying that his memory of what was in the police statement was hazy because it was given some eight years ago and, in any event, in re‑examination he added that before beginning the formal part of the interview, the policeman had informed him of Blackwell’s claim that he (Hansen) was the driver. I was not much assisted by that particular attack on his credibility and, in any event, the police officer was not called in response to the plaintiff’s assertions.
He agreed that he became upset at the Royal Adelaide Hospital when it was suggested he was the driver. Later, when he returned to Port Lincoln, he saw Blackwell and challenged him over this. Blackwell replied:
“... that he said I was driving because he thought he was - I was going to die, he was going to get put up for manslaughter, could lose his kids, his house, and, at that stage, my brother walked in and heard half of it and he sort of got a bit irate and John left.” (p.112)
He said that if Blackwell had stopped the car between Lipson and Port Lincoln, he (Hansen) must have been asleep at the time, because he had no memory of it. It was put to him that Blackwell might not have been driving the vehicle then, because he was drunk, to which he replied that Blackwell was “always drunk” (p. 214).
He had never been a friend of Rynhart, he just knew him to say hello to. He denied he was involved in using methadone and other drugs with Blackwell and Rynhart, or illegally obtaining those drugs. He denied any conversation with Rynhart after the accident about needing help because he was in trouble with his injuries and he denied offering Rynhart a percentage of any damages recovery to give favourable evidence. He denied any recent conversation with Rynhart when Rynhart rang him about some trouble he had had in Western Australia. He said he never offered any money to Rynhart, Blackwell or, indeed, Beek.
Mark Beek
Mr Beek attended on subpoena. He lives in Whyalla and is employed as a road sweeper. He recalled the motor vehicle accident. At the time he was living in Whyalla, but he had gone down to Lipson for a visit. He vaguely recalled that on the day of the accident, he had been drinking with Blackwell, Hansen and Rynhart at Ungarra and then they had borrowed the car to go to Port Lincoln. They had stopped in Lipson to pick up White, but he did not come with them. They had actually been at a party in Lipson the night before. The party had been in a shed in town, but he did not know whose property it was.
When they left White’s house for Port Lincoln, Blackwell was driving. To the best of his recollection, no other person drove the car after that. He was sitting behind the driver and Hansen was sitting next to him in the back seat. He himself had no recollection of the accident.
He was cross‑examined about the party at Lipson on the day before. He said he arrived there in the afternoon, having driven from Whyalla with Rynhart. They took a few cartons of beer with them. He thought they had not slept at all that night. Blackwell was also there drinking alcohol, as were Rynhart, Hansen and White. Nunn and Vandenberg were there, but he was not sure whether they were drinking. He said a few of them stayed up drinking most of the night and he agreed that this group probably included Rynhart, Hansen, Blackwell and White. He thought they stayed up until 4 or 5 p.m. and they were drinking beer. He estimated that his own consumption was probably more than a carton of 24 cans and, indeed, he believed he might have “contributed to drinking two cartons” (p.27). The others were drinking with him, but he did not know whether they were keeping up. They were all substantially affected by alcohol at 4 or 5 o’clock in the morning. He said that during the night, he also took some amphetamines and smoked marijuana, but he did not know whether Blackwell had. Rynhart would likely have had amphetamines and marijuana, but he did not know about White or Hansen. He did not know anything about methadone or whether it was being used, nor Serepax, nor had he heard of Tofranil. He said that, over the evening, people came and went at the party, but his particular group stayed together. He did not remember the police coming.
On the next morning, he went into Tumby Bay with Hansen, Rynhart, Blackwell and Renfrey. They went there to get some more alcohol. He believed Renfrey drove and the four of them drank at the hotel while she attended to an errand. They then returned with Renfrey to Ungarra. She drove them there. Blackwell was in the front passenger seat of the car with Renfrey, and he (Beek) was in the back, at least he felt sure he would have been, because it was not his car. He thought they arrived at Renfrey’s at about lunch‑time and stayed there about an hour. He did not go into the house himself, but stayed outside smoking marijuana. The others went inside. He did not know what they did, whilst they were there.
When they left Renfrey’s place, he said, it would have been Blackwell who was driving “because it was his girlfriend’s car” (p.34). In fact, he did remember it was Blackwell who drove the car to Lipson. It was suggested to him that Rynhart was driving, whereupon he said “I’m unaware - I don’t know” (p.34). He did not remember them stopping on the way to Lipson, nor stopping at Hansen’s place, because he was by then “pretty under the weather” (p.35). He did remember their going to White’s house in Lipson and their asking White to come, because White was a friend of his, but White did not. Blackwell was driving the car when they arrived at White’s house and he was in the back seat, behind the driver or the passenger, he was not sure which. Rynhart was in the front seat and Hansen was with him in the back seat. He thought Hansen was seated to his left. He thought they could have stopped at White’s for an hour. He got out of the car, but he did not know whether the others did.
When they left White’s, he was in the back seat, he thought, behind the driver, but he might possibly have been behind the front passenger. Hansen was again in the back seat with him and Rynhart was in the front passenger seat, with Blackwell driving. He did not think Rynhart was driving. He was asked whether the car stopped at some time prior to the accident for the men to urinate. He thought it was possible that had occurred, but he did not remember it. It was suggested that from the time of this stop, Hansen drove the car. He said he was not aware of that, he did not remember it happening, nor any discussion between the men in the car about Hansen taking over the driving. He did not remember the car going very quickly at the time of the accident and did not remember the accident itself. He did not remember the wheel being jerked just before the accident or Blackwell speaking harshly to Hansen about it. He had no memory of the scene of the accident or of being caught up in barbed wire there.
He did not recall speaking to Blackwell or Rynhart after the accident or going to the Pier Hotel with them on that evening and talking about it. He did not remember the three men getting together and agreeing they would say that they did not remember who was driving. He was then tested about a statement he had allegedly given to an insurance adjuster in May 1994. He said it sounded like something he had said and he agreed his memory was probably better then than now. In that statement, he had said he did not recall much of the accident, nor how it occurred, that he was drunk, but that he recalled being tangled in barbed wire.
He agreed he had spoken to Hansen a year or two after the motor vehicle accident and had probably discussed it with him, but he had not discussed with the others the fact that Hansen might not get any money if he was shown to be driving, nor was any agreement reached between them to procure money for Hansen.
He did not remember if Blackwell was seated in the rear of the car immediately after the accident, nor if Rynhart had got out of the front passenger seat to help him (Beek), nor if Hansen was some 20 to 50 metres away on the ground. This was hardly surprising evidence, given his own predicament at the time. He did not remember whether he was wearing a seatbelt at the time and agreed he may have told the adjuster he was not. He denied he had been offered any inducement by Hansen to give evidence.
Linda Vandenberg
The second plaintiff, Linda Vandenberg, was called. She said she and Hansen had a 17‑year‑old son and had now been separated for five years. She is in a new relationship. She remembered the accident and Hansen being in Port Lincoln Hospital and then being taken to the Royal Adelaide Hospital. At the time she knew Blackwell and his partner, Renfrey. She said that on the night before the accident, Hansen, Blackwell, Beek and Rynhart were at their house. They were drinking, but she was not. On the next morning, she asked them to leave, and they did. She understood they were going to Renfrey’s house at Ungarra. In the late afternoon, they came back to White’s house in Lipson, where she happened to be. She was there, she said, because she knew that they would all be really drunk and she did not like being with them in that condition. She recalled that Hansen came into White’s house and said he was going to Port Lincoln. He then left. She said Chris Nunn (“Nunn”) and she then looked out the window and she saw Renfrey’s car parked out the front. Blackwell was in the driver’s seat and she saw Hansen get in the rear seat behind him. The car reversed and then drove forward. She saw no apparent reason for it to do that.

She was aware that Renfrey did not drive her car very often; Blackwell usually did. She said she later had a conversation with Blackwell about who was driving the car at the time of the accident and he said to her that he was, but “if he went to court and said that he was the driver, he was scared that he might lose his house, because of the compensation involved for Ross” (p.55).
In cross‑examination, she agreed that Lacks might also have dropped into their house on the day before the accident, but not later in the day because they were going to his house. She said the men had begun drinking that afternoon, had drunk through the evening, and had begun drinking again the next morning. They were then drinking at her house and it was mainly beer. They all drank large amounts and were very drunk when they left her. She was not aware of any drugs having been consumed at her house, although marijuana might have been. In particular, she saw no amphetamines consumed, nor any methadone. She did not know what time the men left her house in the evening, as she went to bed. They were going to Lacks’ house. They woke her upon their return to her house. She thought they were going to visit a neighbour. She rose early the next day to take her son to school and then went back to bed for a short while. She then got up and the men were awake and drinking beer with Renfrey. They were all still grossly affected by alcohol, so she told them to leave. She then went over to White’s house. She did not think White was affected by alcohol when she saw him.
When Renfrey’s car arrived at White’s house on the afternoon of the accident, Hansen came in. She did not know whether the others got out of the car, nor did she know who drove it to the house. Hansen appeared to be affected by alcohol. She repeated her evidence as to the respective positions of the men in the car as she saw them from the front window. When they were leaving, Hansen got in the rear driver’s‑side door. The car was not far from her position and was parked on its incorrect side of the roadway on the verge. It was perhaps ten metres away. There was no front fence to the property. Blackwell was in the driver’s seat. She was positive about the respective positions of Blackwell and Hansen and she thought, from her observations, that Rynhart was in the front passenger seat and Beek in the rear passenger‑side seat. Certainly, Beek and Rynhart were on the passenger’s side of the vehicle. She thought the way that Blackwell reversed the car was indicative of his being affected by alcohol.
She did not speak to any of the others when she went to Port Lincoln Hospital that night. At first, Blackwell told her that he did not know who was driving, but he later said that he was. She could not remember whether Hansen was upset, when he was in hospital, about the suggestion that he had been driving, but she said he was in so much pain, she did not think he cared too much at the time. She did not remember being present on any occasion when Blackwell and Hansen spoke about the accident.
She said that earlier that day, when the men had left her house to travel to Ungarra, Hansen and Blackwell were very drunk. Beek was also drunk, but did not appear to be as much affected as the others. She did not know whether Rynhart was the least affected, but she thought he was the one who got the most sleep. In saying the men were drunk, she described their behaviour as talkative, rowdy, stupid and staggering a little. Renfrey was also grossly affected. She said that when she saw Hansen at White’s house in the afternoon, he was even more affected.
Robert White
The plaintiff called Robert White, a resident of Lipson for some 14 years. His house was located about a kilometre from Hansen’s house and he recalled the circumstances surrounding the motor vehicle accident. He had known Blackwell, as well, for many years because he, too, lived nearby.
He described the arrival of the four men at his house on the afternoon of the accident. He was outside planting trees, when Renfrey’s car pulled up at the front. Blackwell was driving it. Hansen walked inside the house and the other three got out and talked with him. Hansen then returned to the car, got in it and Blackwell drove off. He saw this from the front yard of his house. He was sure Blackwell was driving, but he did not know where the others were seated in the car. After Hansen had returned to it, he recalled that Blackwell had suddenly reversed the car towards a pepper tree, nearly hitting it. He had then driven forward and off. There was no obvious reason for Blackwell to have reversed the car.
He had met Beek years before, but this was the first time he had met Rynhart. At the time, he had actually had a conversation with Blackwell about driving the car. He offered to drive into Tumby Bay and buy them some beer, but Blackwell’s response was to say no, that he was the only person who could drive it. He made that offer because he was concerned about Blackwell’s sobriety. He agreed Blackwell usually drove the car, but Renfrey did as well.
In cross‑examination, he said he had not himself been drinking the night before. He was tested on whether it was Blackwell who was driving, but he was quite confident about that. He said Hansen was the first one to get out of the car when it stopped, but he could not remember from which door he alighted. They were at the house for only six or seven minutes. They asked him to come to Port Lincoln with them, but he declined. They were all very drunk. He did not see the car from soon after it left the front of his house because trees obscured its direction of travel.
He said he had never been offered money by Hansen to give evidence.
Leslie Rynhart
Leslie Rynhart was called by the defendant. I permitted him to refrain from disclosing his address because of an expressed fear (upon which I make no finding or draw no inference whatsoever) that there was a risk of some form of retribution from the plaintiff. He said he was living in Perth.
He had known the plaintiff from when they lived in Port Lincoln in the late 1980s. He also knew Blackwell, who had appeared to have no real place of residence at that time. He said he would see Hansen regularly and that they would drink and use drugs together, mainly methadone, although he did not know anybody who was then on the methadone program. He kept in touch with Hansen when he went to live in Lipson. He himself had gone to live in Arno Bay about six months before the accident and had not afterwards had regular contact with Hansen, but they caught up with each other on occasions for “a few drinks, a few drugs” (p.348).
He described the circumstances of the accident and how he had come down to Lipson with Beek and had met the others at Hansen’s house. They began drinking and he said several drugs were used that day, including marijuana, amphetamines and Vycatone. He said he did not use any, except marijuana, himself because he had to go to Arno Bay that night, but both Blackwell and Hansen used Vycatone. Beek smoked some marijuana.
He recalled them going to Lacks’ to see if there was more marijuana and also to visit Hansen’s friends in Lipson during that afternoon. Vandenberg and Renfrey were also present at some time during the afternoon. He remembered calling in to Renfrey’s house and agreed he would have drunk there. He said they then went back to Hansen’s house. He thought Renfrey went with them. They then decided to go to Port Lincoln to get more alcohol. He said they were all in the Hyundai motor vehicle. He was pretty sure that Blackwell was driving it at that time, but he (Rynhart) took over the driving when they left Hansen’s place to go to Port Lincoln. He did not remember Robert White, although the name was familiar to him. He did not remember calling at his house.
He said he then drove the car because the owner (Renfrey) specified that he drive. He said they were all quite drunk at the time and he drove the car to see how fast it would go. It was a new car and he got it up to about 180 kilometres per hour. He had a vague memory of the Tumby Bay hotel and somebody putting on a bet there and having a drink there. He said that afterwards, they stopped for a toilet break and Hansen and he got out of the car. When he returned to it, Hansen was sitting in the driver’s seat. He did not want Hansen driving and they had a conversation about it, but Hansen would not move, so he got in the front passenger seat. Beek was sitting behind him and Blackwell was behind Hansen. He (Rynhart) was the only one who had a seatbelt on. Hansen then drove off and was himself speeding, saying he would make it go faster than Rynhart had. The two in the back were leaning over the back seat and looking at the speed dial. At some point, Hansen quickly turned the wheel. The others told him not to be stupid and, in response, he told them they were not to tell him how to drive and he then pushed the wheel quickly again. They were then on a straight stretch of road, but the car slid sideways up its centre. They were all screaming. It slid a long way before turning over on its roof and it then did a barrel roll off to the right of the roadway and into a wheat paddock. He thought it might have rolled more than seven times. It came to rest upright.
He was still restrained by his seatbelt, but Hansen was out of the car, some 10 to 15 metres away on the ground. Beek was also out of the car. Blackwell appeared to be unconscious and was sitting in the rear seat with his head resting backwards. He then heard Beek calling out and discovered him tangled in barbed wire on the back of the car, apparently having exited it via the rear window. He went over to see Hansen, who appeared to be unconscious. He called out his name and Hansen then seemed to revive, but he was delirious and said he could not feel his legs. Rynhart decided to test this by butting his cigarette on Hansen’s leg. Hansen said he could not feel it. Once he was assured all were breathing, he ran to the highway and flagged down a man, who rang for an ambulance.
He then went with the others to Port Lincoln Hospital. Hansen was conscious, but still delirious. The others seemed better. Soon after arriving at the hospital, all but Hansen left and they went to the Pier Hotel. He said that they discussed the matter there and agreed that none of them would say who was driving, as they were concerned about Renfrey’s car.
He said he was later interviewed by police in Adelaide and said that he had very little memory of what happened. He was confident he did not specifically tell them who was driving, but he did say where everyone was sitting except for Hansen, so it would have been clear to them who was.
He had not seen Hansen since the accident, but had spoken to him on the telephone to discuss it. Hansen had at first asked him to say that Blackwell was driving and then to say that he did not know who was driving. Later, he said he was offered money by Hansen to lie about who was driving, but he said he was not interested in that. Again, on a later occasion, Hansen asked him to say that he did not remember who was driving.
He said he had changed his life since those days. He had remarried and had two young children. He had not used drugs for six years and no longer drank consistently.
In cross-examination, he was asked about his statement to the police and it was suggested that he told the police that Hansen was actually 50 metres, and not 15 metres, from the car. He did not remember that, but said he had given them an approximate distance, only. He was asked why he put the cigarette on Hansen’s leg and he said he did it to hurt him, as he was angry with him; indeed, had Hansen been conscious at the time he found him, he probably would have knocked him unconscious. He also did it because Hansen had said he could not feel his legs. He agreed that Hansen was then in a bad way and in pain, but took the view that Hansen had brought it on himself. In any event, he thought of Hansen as something of a “drama queen” and he resented the fact that he was now making a personal injury claim because he said Hansen was “telling lies, and he’s not man enough to take the responsibility himself” (p.366).
It was put to him that he told the police that Blackwell had stubbed the cigarette on Hansen’s leg and he said that was not true. When he had given his statement, he had been intimidated by Hansen and his associates, whom he had, at that time, idolised. He had then wanted to do what he thought was the right thing by them. He was asked why he did not tell the police the truth about that matter. He said he did not want anything to do with the police at the time. He was asked why he lied and he suggested that perhaps Blackwell had done it, too. He could not reconcile how or why he had lied. It was put to him that he had not, in fact, told the police where everybody was sitting and he was given the opportunity to read his statement. He then said he was probably confused about that and it might have been that it was the SGIC representative to whom he described everybody’s location. He had not read either statement before coming to court. He agreed that in the SGIC statement, he had pretty well told them who the driver was without saying so in as many words. He said at the time he still felt intimidated by the plaintiff.
He agreed he had telephoned Hansen some six years ago to seek his help to “catch up” (p.372) with somebody who had invaded his home. He said that in the last seven years, he had been largely free of offending, but before then he had been involved in dishonesty and drug offences in three States. Dishonesty had been a way of life for him until then.
It was put to Rynhart that he had stayed overnight in Lipson the night before the accident, but he could not remember it and said he would have expected to have remembered it, had he done so. His recollection was that he had driven down from Arno Bay that morning and intended to return that night. It was then put to him that he had driven down with Beek and that Beek had come from Whyalla. He then corrected his evidence, saying he was in error and that in fact he had been living in Whyalla at the time. That correction also reflected upon his evidence that he was being careful about his drinking that day and did not want to get “too wasted” (p.374) because he had to return to Arno Bay that evening, but he said that he was there intending to refer to Whyalla. Of course, his use of the expression “too wasted” involves some licence because, clearly, on his own evidence, he was drunk at the time of the accident. He was further pressed on the amount of time he spent in Lipson. He said it was nine years ago and the only thing that was clear to him was who was driving the car, because he thought he had nearly been killed.
He said he had been to Hansen’s house several times before that day, having called in on the way to Port Lincoln, and he had seen him in various hotels around Port Lincoln. He had not seen Hansen regularly, however, since he had left Port Lincoln. He could not identify a specific occasion when he had called on Hansen at Lipson. He was pressed on that, but was not forthcoming, nor did I find anything particularly surprising about that, given the lapse of time and his changes of address.
He could not remember whether he had ever driven in a car with Hansen, but he did remember that, at the time they had been in Port Lincoln together, he was the one who had a car and he would often drive others. His expressed criticism of Hansen’s driving ability was based upon Hansen’s reputation and his assertion (not otherwise proved) that Hansen’s licence had been disqualified “for life”. He could not remember a specific occasion of being driven by Hansen anywhere.
He said that on the day of the accident, Renfrey had asked him to drive her car and he thought that had occurred at Lipson. She had come with them to Lipson from Ungarra and had remained at Hansen’s house with Vandenberg. It was put to him that White had described a visit to his own house in Lipson by the four of them. He suggested that White, along with several other of the plaintiff’s witnesses, would fabricate evidence because of fear or because of a promise of some reward. That was his theory.
He agreed that his wife and family had accompanied him, at the defendant’s expense, when he came to Adelaide to give evidence, but he said they went where he went.
Again, he said he could not recall specific occasions of being with Hansen in and around Port Lincoln, but mentioned hotels and residences where they had met from time to time.
He said he did not rule out the possibility that he might have visited White’s house before leaving Lipson for Port Lincoln; he simply could not remember it. He had a vague recollection of going to the Tumby Bay hotel on the way and of somebody putting a bet on there. It was probable that they had a drink when they were there. He said he had driven the car at 160 kilometres per hour, but when challenged that he had previously said it was 180 kilometres per hour, he did not dispute the latter. He said he was behaving very irresponsibly at that time. He said his memory was of driving the car as fast as it could go, but he felt unable to provide an exact figure. He agreed that was breaching the trust that Renfrey had put in him to drive the vehicle, but he said he was “not a particularly nice fellow nine years ago” (p.388). He thought he drove it at a top speed for up to three kilometres, but for most of the time he was driving it between 130 and 160. He thought that that driving probably occurred on the road from Lipson to Tumby Bay.
He said his memory of the collision, as the car rolled, was seeing Beek and Hansen go out the windows.
He was not aware whether anybody went to the toilet when they called at the Tumby Bay hotel, but he thought it was possible. He was then challenged as to why there was a necessity to stop further along the roadway towards Louth Bay. He said he had what he called an “Indian bladder” (p.394), so he pulled over to the side of the road and walked to the fence line to relieve himself. He thought it could have been between five and nine kilometres away from Tumby Bay when this happened and he remembered that when he went to return to the driver’s seat, the plaintiff had seated himself there.
After that point, the plaintiff drove and behind him in the rear seat was Blackwell. He was in the front passenger seat and Beek was behind him in the rear seat. He did not know whether anybody else had got out of the car at the toilet stop. At that point, he said, Blackwell was very stoned, but he and Beek remained interested in the speed at which the plaintiff was driving. Neither was wearing a seatbelt and each was leaning over from the back seat looking at the panel to see the speedometer. They had done that whilst he was driving, as well. He was confident that none of the other passengers was wearing a seatbelt because it was considered “weak” to wear one (p.398) and he did not, at any stage, see anybody put a belt on.
He agreed they might have been able to get alcohol from Tumby Bay, or at least without going to Port Lincoln. He said he thought they might have been looking for drugs as well, but the primary reason was alcohol and it might have been that they were going to Port Lincoln in order to use credit facilities. He was carrying no cash by then.
He was tested on whether Renfrey accompanied the men from Ungarra to Lipson and he said that was his vague memory and that she went there to be with Vandenberg. He agreed there were occasions after they left Ungarra when Blackwell drove the car.
When the car stopped after rolling, Blackwell was seated on the rear seat with his head resting against the driver’s headrest. At that time it was considered “uncool” (p.401) to wear a seatbelt and he did not see Blackwell wearing one. He actually pushed Blackwell back onto the seat after seeing him in that position in order to ensure that his airway was clear. He had earlier said in his evidence that Blackwell was unconscious and with his head resting on the seat, but he had thought about it over the weekend and concluded that at first he was leaning forward with his head on the back of the driver’s seat.

He remembered that the plaintiff was saying things in the casualty department at the hospital, but did not remember their discussing the motor vehicle accident at that time. He had not seen Hansen since and until the start of the trial, but agreed he had spoken to him on the phone. That was at a time when he had also spoken to the plaintiff’s solicitor, Mr de Sousa, and the plaintiff had asked him to say that Blackwell was driving. He had refused. The plaintiff then asked him to say he did not remember who was driving. That conversation, he said, had taken place some years ago. Otherwise, he had spoken twice to SGIC’s adjuster and then, recently, to the defendant’s representatives about the matter. He had not refreshed his memory from any of his earlier statements because he wanted to come to court with an untainted recollection. He agreed it might possibly help him to refer to those statements, but he needed no assistance on the question of who was driving the car.
He said that he had spoken to de Sousa about six years ago. He thought he had called de Sousa because of a message he had received. Hansen had been put on the line during it. That phone call was to de Sousa at his Port Lincoln office, as he knew that firm had an office in Port Lincoln. He said that in that conversation he had with de Sousa, de Sousa was frustrated when he (Rynhart) maintained that it was the plaintiff who was driving the car. He assumed that Hansen was in the same room as de Sousa at the time he rang there, because the receiver was handed from de Sousa to Hansen and then back to de Sousa. He said he told de Sousa of the offer that Hansen had made to him and de Sousa had replied that he did not want to hear it.
It was then put to him that there would have been no need to tell de Sousa of that if the offer put to him by Hansen had been made over the phone when de Sousa was in the same room as Hansen. He said he had rung de Sousa back to tell him of it in order to “reinforce my feelings and to make him well aware that I was not open to offers; not offers that involve me perjuring myself” (p.420). He said that the return phone call he made to de Sousa was either on the same day or the next day. He rejected a suggestion that in no phone call to de Sousa, was the handpiece given to Hansen.
He agreed that on an occasion prior to that phone call, he had himself contacted Hansen and asked Hansen to do a favour for him. At that time, he was living in Western Australia and had been the victim of a home invasion. He knew one of the people involved came from Port Lincoln and he sought assistance from Hansen.
He was challenged as to his own criminal record. He said the longest time he had ever spent in prison for a criminal offence was one month, six to seven years ago, in Western Australia, but he had otherwise spent six weeks in Port Lincoln prison for non‑payment of fines. He said most of his offences were offences of dishonesty involving burglary and breaking and entering, but he also had convictions for assault, possession of drugs and motor vehicle offences. He said he had begun to sort out his own life some six years ago, after the home invasion had occurred.
He was then asked directly whether he was requesting Hansen to inflict physical violence on the person who had been involved in the home invasion. He was warned, but elected to answer the question and said that he had wanted the plaintiff to fix the problem by running the person out of Port Lincoln or dealing with him as he thought fit. He said Hansen had that sort of power or influence because of his involvement with drugs and Hansen had, indeed, undertaken to do that task for him. That all occurred a few months before his telephone conversation with Mr de Sousa.
It was then put to him that he had earlier said that he had spoken to de Sousa on the phone four years ago. He said his estimate was an approximation and that he had also said it was approximately six years. Four years was not correct.
He was tested further on the conversation with de Sousa and it was suggested it was a call to de Sousa’s Adelaide office on 28 April 1997. He did not know. All he was clear about was that he spoke to de Sousa. He denied that in that conversation with de Sousa, he had asked for the plaintiff’s telephone number and that de Sousa had given it to him. He stuck to his own version of events, namely, that the plaintiff was actually with de Sousa in his office. He was clear that in that phone conversation, he had stated that it was the plaintiff who was driving the car and Hansen had then made an offer of a share of the damages. He said he had been asked not to speak to SGIC about the matter. He was confident that the plaintiff had offered him 10 per cent of the $500,000 he expected to get in damages, that he had later told de Sousa of the offer, but said that he had not mentioned the actual amount, because he did not think it was relevant.
He said that it was at Port Lincoln Hospital, when all the men (including Hansen) were in the room, that it was agreed that they would say that they could not remember who the driver was. He agreed to go along with that because, he said, he was terrified of the men, not so much of Beek but of Hansen and Blackwell.
It was the put to him that he had said earlier in his evidence (p.403.22) that he had not had any discussions with Ross Hansen at Port Lincoln Hospital. He did not dispute he had said that, but said he now remembered that he had. It was suggested to him that he had earlier said that there were no discussions about the matter prior to their going to the Pier Hotel, but he said that when the police came to the hospital, they discussed the matter with all of them and they all gave the police the account of not being able to remember who the driver was. It was then put to him that he had not, at any earlier stage in his evidence, said that the conspiracy to say they did not know who the driver was, had been hatched at the hospital. He said he thought he had. When it was put to him that his evidence was that they had discussed the matter at the Pier Hotel, he said that they had discussed the matter both at the hospital and the hotel. He had thought about the matter over the weekend and it had come back to him.
He said that at the hospital, Hansen had been moaning loudly and “being a drama queen” (p.444). He had not said that previously in his evidence because he had not been asked. He said that the more he was asked about the matter, the more came to his mind.
It was then put to him that he did not like Hansen at all. He said he liked him very much. He felt sorry for him. He had changed his life, but Hansen was still involved in his old way of life. It was put to him that he had not previously given any account to the defendant’s solicitors of the conversation he had with de Sousa. He said he had told their representative of it and had not had much more than a brief discussion with the defendant’s solicitor after coming to Adelaide.
The plaintiff’s case about the parties being in Lipson for two days and their movements and the relevant driving positions was put to him and he rejected it, saying he had no memory of being in Lipson for two days, although it was possible. It might be that because of the large amount of alcohol he had consumed, he could not remember clearly. He said that when they were driving around in the Lipson area, they went to several different places. He could not remember whether anybody apart from Blackwell had driven the car then. It was suggested that Renfrey had not gone back into Lipson with the men. He rejected that, saying he was almost certain she did. He said that Blackwell never drove again after they left Lipson on the way to Port Lincoln. When they left Lipson, he (Rynhart) was driving and Hansen was in the front seat, with Beek behind him. Blackwell was behind the driver. That arrangement continued after they left Tumby Bay.
He had had no contact with Blackwell or Vandenberg after the accident, nor had he spoken to Beek since about that time, but he had left a message with Beek to say that he was coming to court to tell the truth. He was surprised that Beek had given the account of things he had. It was put to him that Hansen was not driving (or jerking the wheel as described). He denied that.
Constable Hanke
The defendant called police officer Constable Hanke. He has been a police officer for over 22 years and had been stationed in Port Lincoln in August 1993. He had attended the scene of the accident with a Constable McCormack.
McCormack had since died, but had made his own investigation notes and I admitted them under section 34C of the Evidence Act 1929 (D8). They disclosed that he had interviewed Blackwell at Port Lincoln Hospital on the evening of the accident and that Blackwell had stated he had been seated in the back of the car with Beek, that Rynhart was in the front passenger’s seat and that he thus thought that Hansen was driving. I will return to that interview later.
In addition, the South Australia Police Department Vehicle Collision Information Report was tendered (D6) and Hanke identified it, through his own identification number, as a document produced from a handwritten report he had prepared at the scene. Blackwell had then told him that Hansen was driving and each of Blackwell, Rynhart and Beek had described their respective positions in the car, from which it could, in any event, be deduced Hansen was the driver. He had kept separate notes of information gleaned from speaking to Beek and Rynhart at the scene, but did not have any separate note of his then discussion with Blackwell.
In cross‑examination, Hanke said that the three men he saw at the hospital, namely, Beek, Blackwell and Rynhart, were all inebriated and that Beek was very inebriated. He was, there, standing next to McCormack when McCormack asked the questions of Blackwell which are recorded in Exhibit D8 and he heard the replies recorded there.
He was pressed on whether he had made any note of the conversation he said he had had at the scene with Blackwell. He said he thought he had done so, some days after the accident, by recording the same in the supplementary written report he had sent to Adelaide, but he did not know what had become of that report. He had added those observations in his supplementary report because of conflicts in Blackwell’s accounts of who the driver was and so that further enquiries could be made of Hansen, who was by then in Adelaide, at the Royal Adelaide Hospital.
As to the typewritten report (D6), he was not able to comment on several entries in it and, indeed, it became clear that the investigation had passed from his hands at some stage and had been conducted by other persons in the Department.
It was put to him that on a particular occasion after the accident, Blackwell had told him that he (Blackwell) could not recall speaking to any police officer at the scene of the accident, nor at the hospital, but he did not recall that happening.
He said he had only recently become aware that Blackwell had stated in a hearing in the Port Lincoln Magistrates Court that he (Blackwell) was in fact the driver.
He did not think he had had any meaningful conversation with Hansen at the accident scene, nor had he spoken to him since.
He was again challenged on why he had not immediately noted Blackwell’s remarks at the scene. He said he was otherwise occupied keeping a watch on Hansen’s condition and waiting for the ambulance. He observed:
“... I just recall speaking to all three, and I remember that all three were not very cooperative, and I remember, basically, that everyone basically pointed the finger - at that point, everyone pointed the finger at Ross Hansen, who was on the ground ...” (p.322)
The fact that Blackwell had spoken to him at the scene was consistent with the fact that his accident report identified Blackwell as the person reporting the accident, and the fact that Blackwell said Hansen was the driver was consistent with what that report recorded. He thought it likely that he had entered details of what Blackwell had said directly onto the handwritten document from which that report was produced.
At the scene, he thought Hansen had serious injuries, but he did not think they were likely to be fatal, nor did it appear to him that the other three men thought that.
Police Exhibits
The South Australian Police Department Vehicle Collision Information Report, D6, in fact identified Blackwell as the reporting person and the vehicle driver as Hansen. Witnesses identified were Rynhart, Beek and Blackwell.
Exhibit D7, being Constable Hanke’s notes, comprised brief entries he made after speaking to the passengers Beek and Rynhart, who described their locations respectively as the rear near-side and front near-side seats.
Exhibit D8, being the notes prepared by Constable McCormack, record the conversation he had with Blackwell at Port Lincoln Hospital, in which Blackwell said that he was sitting in the back of the car, Beek was sitting beside him and Rynhart was in the front passenger seat. He was then asked:
“Q. So who was driving? Rossco’s the only one left. Was Rossco driving?
A.I think so. I was driving first, then I got out because I was too pissed to drive: And then I don’t know who was driving.”
It was then put to Blackwell that, given the positions he had ascribed in the car to the other passengers, Rosco (Hansen) was the only one left to be the driver. His answer was, “Yeah, but I’m not sure who was driving”.
The Expert Evidence
Each of the parties called an expert engineer with experience in the dynamics of motor vehicle accidents. They had markedly differing opinions about what was likely to have happened to the bodies of Blackwell and Hansen in the course of the rollover.
Mr Hall, for the defendant, argued that Blackwell was at all times seated and restrained in his seatbelt in the rear driver’s‑side position and that markings on the belt sash supported this. It followed that Hansen must have been unrestrained in the driver’s seat and was likely ejected from a side window of the car as it rolled.
Mr Potts, called by the plaintiff, disputed this. He argued that markings on the sash showed that the rear offside belt had not been locked at the time of the rollover, but rather pointed to the fact that the occupant of that seat had been partially restrained by it, but then ejected via the rear window. The partial restraint had occurred, he thought, because the belt had likely been draped over the passenger’s shoulder, but not then secured, or properly secured. On his view of the pitching forces generated by the rollover, it was possible that that passenger had been so ejected and that Blackwell, as the driver, had been thrown over the front seat, coming to rest sitting directly behind his original position (where Rynhart observed him when the vehicle came to rest).
I will discuss the expert evidence briefly, but for reasons which will emerge, I did not consider that it was, by itself, conclusive in terms of fixing either Hansen’s and Blackwell’s original position in the car.
It was common ground that` the front passenger was, at the time of the rollover, secured by his belt: markings on the seatbelt guide corroborated that. Indeed, it was not seriously disputed that that person was Rynhart, as he himself claimed. Further, it was common ground that he and Blackwell were the only ones left in the car and that both Hansen and Beek were thrown from it. The experts agreed, too, that in a rollover of this kind, there were three types of forces operating, namely, pitching (or the tendency of the vehicle to roll end on end), yawing (or the tendency of the vehicle to spin around a vertical axis) and rolling (or the tendency of the vehicle to spin around a horizontal axis extending from one end of it to the other).
Potts said that the extent of the forces likely to have been operating upon the occupants of the car increased disproportionately with the speed of the vehicle at the time control was lost. Hall did not appear to dispute that.
It was in the significance of the pitching stresses that their opinions differed. Potts was of the view that these were highly significant forces and sufficient, in the circumstances, to throw a rear seat passenger through the rear window and the driver into the back seat. Hall took issue with that. Whilst conceding such movements were possible, he thought them unlikely in the circumstances.
Each took a different view about the significance of the damage to the car in explaining the extent of the pitching forces. Hall said it did not indicate the presence of any significant forces and Potts took the opposite view.
Potts’ position was, he said, supported by the rear seatbelt evidence, the apparent exit of Beek through the rear window of the car and the substantial amount of space between the top of the bucket seats of the car and its roof, enough to allow the driver to be propelled into the back seat.
Hall sought to distinguish between the ease with which a back seat passenger might exit through the back window and the difficulties in the way of a front seat occupant passing into the rear seat.
At the pre‑trial stage, both experts had carried out calculations and/or formed opinions based upon the vehicle travelling at or just below the speed limit at the time control was lost. At trial, it emerged, from Rynhart’s evidence, that it was in fact travelling very much faster than the speed limit.
Having considered that evidence and the respective opinions of Potts and Hall as to the likely extent of the pitching forces operating at the time, I found I preferred the evidence of Potts over that of Hall on this issue. I did so because it was common ground that Beek had been ejected from the window and I was satisfied from what he said that this was consistent with the presence of significant pitching forces. Further, I was not persuaded by Hall’s opinion that in some manner these dynamics were different from those involved in catapulting a front seat occupant into the rear of the vehicle. Finally, the evidence of Rynhart, which I accepted, as to the extreme speed of the vehicle at the time of the rollover, more readily supported the presence of such forces.
A conclusion that significant pitching did occur does not, however, necessarily lead to the conclusions that the rear driver’s‑side passenger was thus thrown out through the rear window, that the driver was thrown from the front to the back seat and that that latter person was Blackwell.
Even allowing for those possibilities, the defendant said I should focus more upon the clear evidence that the driver was unrestrained, that he might easily have been thrown out of a side window and that Hansen had, indeed, been found some distance from the car. Further, it pointed to Blackwell’s presence in the back seat after the accident as consistent with the claim that he had been there all the time. Finally, it said that markings in the rear offside seatbelt guide were supportive of his being restrained there by a seatbelt, hence he remained where he was and suffered no injury.
In the latter connection, Hall allowed that those markings were less prominent than those observed on the front passenger seatbelt, which on all the evidence had clearly held a body in the rollover, but he did not proffer any scientific testing tending to show that they supported the retention of a body in a rollover of this kind. He relied here on his general experience of observing seatbelts after such accidents.
That same experience was claimed by Potts, who said that the markings were not consistent with a full load on the seatbelt in a rollover; they indicated a somewhat lesser load. They were more consistent with his particular theory of partial restraint and then ejectment of a body via the back window. The marks contained grime, silica and other materials and they supported a scenario whereby the extending seatbelt scraped over the anchor bolt securing its belt guide. The belt could only have scraped over that bolt and in that manner if it had been drawn upwards and rearwards such as would have occurred had it been partially linked to a body being thrown through the rear window. The size of the marking was consistent with the dimensions of the bolt and it was significant, as well, that the upper bolt surface was relatively clean, whereas ordinarily, it would have been expected to carry some manufacturer’s red paint. Within the mark on the belt webbing, there were four particles which he considered to be of red paint, although he had not scientifically examined them. He thus developed the theory that that seatbelt had been draped, but not fully secured, over a body in the rear offside position, that the body had been thrown upwards and rearwards as a result, in particular, of the pitching forces generated in the rollover, propelling it through the back window and causing the belt which partly held it to be dragged upwards and back, thus scraping the webbing on the bolt.

This scenario was also possible, he said, if the seatbelt tongue had been inserted in the buckle, but not shot home so as to secure the body properly. He pointed to the absence of a secure or semi‑rigid buckle support in the rear seat and said that a flexible belt connection to the buckle made secure connection less easy: two hands were necessary for it, hence the possibility it had been imperfectly secured.
Hall disputed this theory. He thought the pressure or otherwise of a flexible buckle connection to be irrelevant. He did not observe any red particles in the marking within the webbing and disagreed that the size of the marking corresponded with the size of the bolt, anyway. Further, he pointed to the fact that the bolt securing the protruding guides, was ordinarily covered by the inner trim of the car (Potts had considered this latter possibility, but thought it still remained possible for the webbing to scrape on the bolt because the trim was flexible and bendable, albeit that it had not been dislodged in the accident).
Hall conceded that the dynamics made such movements as were postulated by Potts, possible, but he thought they were very unlikely.
Whilst Potts advanced that particular theory of the dynamics of the collision, he was less inclined to place a value on its likelihood and spoke in terms of possibilities rather than probabilities. That language perhaps reflected their differing personalities and scientific approaches. It seemed to me that Hall was more of a pragmatist, inclined to rely upon his own experience and investigations, whereas Potts was more influenced by the available data and the range of possibilities which it threw up. I thought each of them was careful in giving evidence, but, in the end, had I been forced to prefer one’s version over that of the other, without the benefit of other evidence, I would likely have opted for the Hall scenario, which involved less recourse to contentious issues of dynamics and fewer contingencies. It is not necessary, however, that I make such a finding. I have reached conclusions as to critical matters based, primarily, on other independent evidence and it is enough to say that they are more readily supported by Hall’s conclusions. I will turn to those conclusions in a moment.
Other Evidence
By consent and pursuant to section 34C of the Evidence Act, a bundle of statements of John Blackwell were tendered (P7):
(1)The first of them comprised the interview between Constable McCormack and Blackwell at Port Lincoln Hospital, to which I have just referred.
(2)The second statement was taken from him by the police on the day following the accident. In it, Blackwell gave quite a different account of events. He said his last memory of events was at about Lipson:
“I’ve got no idea how many beers I had but it was plenty. I went and sat in the rear passenger seat and crashed out because I didn’t want anyone screwing around with her car (referring to Renfrey’s car) ... The next thing I remember is we were all out in the middle of a paddock, with Renfreys car that had been rolled. I remember Les saying something about Ross driving and asking where he was. I went running off into the paddock and found Ross ... I can’t remember speaking to any police at the scene or at the hospital ...”
(3)The third document admitted was a note of a telephone entry made by the statutory insurer on 12 October 1993 following a phone call from a person. It recorded the following:
“Received a phone call from John advising he was not the driver of the vehicle involved. He said he was a passenger and is unaware of whom the driver is. This phone call in response to SL1.”
(4)The next document was a statement provided by Blackwell to an investigator appointed by the statutory insurer on 18 October 1993. I will not attempt to cover it in detail, save that Blackwell denies knowing “any of the circumstances surrounding the accident” or who was driving at the time. He says the last thing he remembers is stopping for a few drinks at Hansen’s place in Lipson, and next he remembers being in the paddock talking to Hansen, who was on the ground. He speaks of the copious quantities of alcohol consumed by all of them on that day and the day before. He does not say if he was wearing a seatbelt, but thinks he was sitting in the rear near‑side seat. He does not know where Hansen was sitting. When asked why he thinks Hansen may have nominated him as the driver, he says that that is probably because he had driven from Ungarra to Lipson and Hansen had assumed he had continued driving. He says that Rynhart has a better memory of the accident than him and has told him he (Rynhart) took over the driving at some point. He agrees that Hansen might have been the driver of the car.
(5)The next statement was made to the same investigator on 25 May 1994. The following questions and Blackwell’s answers were recorded in it:
“4.Q.     I have previously spoken to you in relation to this accident is that right?
A.That is right.
5.Q.     At that time you advised me you were unaware who the driver of the vehicle was is that still the case?
A.No, I have recalled that I was driving the car.
6.Q.     You were driving the car at the time of the accident is that what you are telling me?
A.Yes I believe so.
7.Q.     Why is it now that you remember the accident, that you were the driver?
A.I have spoken with a couple of other people that were in the car and they have reminded me of things that I did while we were in the car and the more I think about it the more I think that I was driving the car.”
Further, he says that he had spoken separately to those people one and a half to two months before the interview. He then describes the accident as follows:
“18 ... A.I remember coming over the hill the other side of the Louth Bay turn off and I remember the car going sideways onto one side of the road and then back across the bitumen but I don’t remember actually rolling over or going through the fence”.
He presumes his speed was 100 to 110 kilometres per hour and says he just took his eyes off the road and then over‑corrected. He says he was wearing a seatbelt, but does not know whether the others were.
He acknowledges that after leaving Lipson, they stopped the car to relieve themselves on the Tumby Bay side of the Louth Bay turn‑off and just before the rollover point. At that stop, he, Hansen and Rynhart got out, but he thinks Beek stayed in the car. He got back in the front driver’s seat, but he did not see where the other two went. That was six or seven minutes before the accident. He says nobody but he and Renfrey ever drove her car.
(6)The next document was part of a transcript of evidence, given by Blackwell in the Port Lincoln Magistrates Court, in litigation relating to insurance cover for the damaged car. That particular evidence was given on 11 May 1995. In it, he says that up until the time the car left Lipson, he was driving and he continued to drive it until the time of the accident. He and the others were all drunk. He says that when he spoke to the police the next day, he told them he could not remember who was driving the car and he only remembered, after speaking to the others, that it was he who was driving.
In the cross‑examination in that transcript, he denies lying to the police and says he just could not recall things at the time he spoke to them. He then goes on to say that he told the police that, at Lipson, he went to sleep in the rear seat of the car, and that was so, but when they left Lipson, he would not let anybody else drive the car and he drove it. It was then put to him, in that passage, that he had given a contrary statement to the adjuster for SGIC and had said he was not the driver of the vehicle. His recollection was that he told the adjuster that he did not then recall being the driver, but that was in May 1994. By the time of that court hearing, he could not now remember the details, but he had spoken to the others and it had all come back to him. He did not recall telling Renfrey that the plaintiff was the driver of the vehicle.
After the accident, he agreed, he thought it was possible Hansen might die. He was examined extensively about the amount of alcohol he and others had consumed. At page 61 he was asked:
“Q.So, you are only able to now recall a lot of these matters from what someone else has told you about it.
A.I had been reminded of them, yes.
Q.But until Beekie had spoken to you and refreshed your memory, you had no independent recollection of what occurred.
A.Yes, like I said before, I had thought these things but I wasnt - I wasnt completely positive on it.”
Agreed Matters
There were then some agreed facts relating to evidence that the plaintiff’s solicitor, Mr de Sousa, would otherwise have given had he been called. They concerned telephone conversations he had had with the witness Rynhart in April 1997. It was agreed:
(a)that de Sousa was in the habit of recording on file notes the nature and substance of his telephone attendances and that he had followed that practice in dealings with this particular matter;
(b)that Exhibit P8 comprised his file notes of two telephone conversations he had with Rynhart and a conversation he had with the plaintiff in between those calls and, further, a note to his secretary relating to those conversations. I will return to those conversations in a moment;
(c)that he held no other notes relating to conversations between him and Rynhart, nor did he recall any other conversations with that person, nor did the defendant assert there were any such conversations;
(d)that de Sousa was at the Adelaide office of his firm at the time the recorded telephone conversations took place and that he had no recollection of any call being received at his firm’s Port Lincoln office;
(e)that he had no recollection of any conversation with Rynhart when the plaintiff was present - the defendant accepted that what was recorded in the notes P8, represented the full extent of the substantive issues then discussed between him and Rynhart; and
(f)that de Sousa’s evidence was that there had never been any discussion in any conversation he had with Rynhart about money being offered to him (Rynhart) over giving evidence in the matter.
I turn, then, to the contents of Exhibit P8. It is not necessary to cover them all, but it is enough to say that in a telephone call of 28 April 1997, Rynhart informed de Sousa that he wanted to speak to the plaintiff and de Sousa said that he would need to get the plaintiff’s permission to release his telephone number. Rynhart then told de Sousa that the plaintiff was driving the car at the time of the accident and de Sousa replied that he would not stop Rynhart from speaking to SGIC and telling them that. The conversation was concluded on the basis that Rynhart would call back to see whether he could gain access to Hansen. In the interim, de Sousa spoke to the plaintiff and got his permission to release his telephone number. Subsequently, when Rynhart called again on that day, de Sousa provided Hansen’s number and affirmed that he should tell SGIC what he believed were the true facts of the case.
DISCUSSION AND FINDINGS AS TO CREDIT
In essence, Hansen’s case, that Blackwell was driving the car at the relevant time, was based upon these propositions:
(1)that, on the evidence of his own witnesses, Blackwell was the driver at the time they left Lipson and it should be inferred that he remained the driver until the time of the collision. With the exception of Rynhart’s evidence and statements allegedly made to the police, no other witness rebutted that version or inference;
(2)that the evidence of his expert, Potts, supported the likelihood of his having that position in the car at the moment it rolled;
(3)that his case was consistent with various statements made by Blackwell to the police or investigators to the effect that he was the driver or that he did not know who the driver was.
None of the lay witnesses called by Hansen proffered any direct evidence as to who was driving the vehicle at the time of the accident. The most Hansen was prepared to say was that Blackwell was driving at the time they left White’s house in Lipson to drive to Port Lincoln. After that, he had no recollection of events. Beek gave much the same account. Otherwise, all Vandenberg and White could say was that they observed Blackwell drive off from White’s house.
Rynhart was the only person to suggest Blackwell did not drive off from White’s house, but on this topic, I found his evidence unconvincing. He gave it in the context of an assertion that he was considerably less intoxicated than the others and was thus entrusted with the car by Renfrey. I was not persuaded, on all the evidence, that he was in such a state.
Whilst the evidence of White and Vandenberg was challenged as to this matter, I was generally impressed by each of them and their respective demeanours. Neither sought to speak of matters of which he or she had no direct knowledge, each had some measure of independence of Hansen and neither appears to have been affected by alcohol at the time they made the relevant observations. They viewed the relevant event from different positions and perspectives, but there was a measure of consistency in what they said and I had confidence in it.
Beek presented as a somewhat less reliable historian, particularly in the context of the amount of alcohol that, on his own admission, he had consumed prior to the journey. Nevertheless, I was satisfied that he generally sought to tell the truth, in so far as he knew it. He claimed that he had no recollection of events after leaving Lipson. That was hardly surprising, given his state of intoxication. It was put to him that after the accident, he joined in the conspiracy with the others to say that they did not know who had been driving the car at the relevant time. He said he could not recall that: he did not remember it happening. That answer was slightly less persuasive than his other evidence. Notwithstanding his lack of memory of events after leaving Lipson, one might have expected that, if such a conspiracy had not been embarked upon, he would have been able to say so with some confidence. Nevertheless, I was generally persuaded that his account of events up to the time the men left Lipson was reliable.
I thus find, on the basis of the evidence of Hansen, Beek, Vandenberg and White, that Blackwell was, indeed, the driver of the car at the time it left Lipson to drive to Port Lincoln. The inference that he remained the driver is thus an available one, to be considered against the rest of the evidence.
I have already commented upon the difficulties posed by the expert evidence, so I turn to consider the various statements of the deceased Blackwell and the evidence of the police officer Hanke.
Hanke was an impressive witness and I had no reason to doubt his reliability. There was a strong measure of consistency and logic in his evidence, the contents of his notes, those of police officer McCormack and the Vehicle Collision Information Report. Collectively, they supported this scenario:
(1)at the accident scene, Blackwell stated to Hanke that Hansen was the driver of the vehicle;
(2)at the scene, each of Rynhart, Beek and Blackwell described his respective position in the car and none of those positions described the driver’s seat. The inescapable inference was, thus, that that seat was occupied by Hansen;
(3)later, at Port Lincoln Hospital, Hanke was present and heard McCormack take a statement from Blackwell, in the course of which Blackwell said, first, that he was sitting in the rear of the car and that he thought Hansen was the driver. Later, he said that he was not sure who was driving.
That scenario was, however, called into question in the statements later made by Blackwell to the police, the insurer, the insurance adjuster, the Port Lincoln Magistrates Court (P7) and Vandenberg. I have already discussed these. In summary, he variously says Hansen was the driver, that he has no memory of who was driving, that he was sitting behind whoever was driving and, finally, that his memory had revived after speaking to the others in the car and that in fact he was the driver. Blackwell is now dead, so these conflicts were not tested at trial.
For reasons already canvassed, my finding that Blackwell drove off from White’s house, is not conclusive of who was driving at the time of the rollover, nor is the expert evidence of itself conclusive. It is thus critical that I make findings as to the conflicts between Hanke’s evidence, Blackwell’s various statements and Rynhart’s evidence.
Rynhart portrayed himself as a younger, somewhat naïve youth at the time, who looked up to the plaintiff and his associates and who shared their alleged vices of excessive alcohol consumption, drug abuse and associated crime. Since then, he had seen the light and changed his ways. Whereas Hansen was, in his evidence, at pains to distance himself from any close association with Rynhart, the latter suggested otherwise, saying they had spent time together and socialised in and around Port Lincoln, and that he was no stranger to Hansen’s circle of friends when he arrived at Lipson on the day of the accident.
Contrary to the evidence of most other persons who could speak of it, he said that he accompanied Beek to Lipson on the day of the accident, there was heavy drinking on that day and that his original intention had been to return to Whyalla that same night. He acknowledged the possibility that he had, in fact, gone to Lipson on the day prior to the day of the accident, but thought it unlikely. In this respect, I am satisfied, on all the evidence, that he was wrong. I prefer the evidence of the plaintiff, Beek and Vandenberg on that matter.
He then described the drinking and drug‑taking that took place at Lipson on the day of the accident, but sought to exclude himself from the latter. Beek said otherwise and that Rynhart was using drugs. Hansen denied anybody was using drugs. Rynhart said he could not afford to over‑indulge in alcohol or stimulants that day because of his need to return to Whyalla. I was unconvinced by that, given the independent evidence of his intoxication.
He thought that Renfrey had accompanied the four men from Ungarra back to Lipson prior to their setting off for Port Lincoln, but, on all the evidence, I am satisfied that was not so. He claimed that Renfrey specified that only he drive her car and that he did so from Lipson. That was contrary to other evidence, which I found credible, that Renfrey would permit only Blackwell to drive it. It also conflicted with my findings that Blackwell drove off from Lipson. Renfrey was not called on this issue and, on any account, whoever had permission to drive the car, grossly abused the trust placed in him. I find that Rynhart was not given that permission, nor did he drive from Lipson.
He said, however, that Hansen was driving when the rollover occurred and he described its immediate consequences. At the hospital afterwards, there was discussion between the three men, in the presence of the plaintiff, who was in Casualty with them, to the effect that they would say that they did not know who the driver was. At a later stage in his evidence, he said that a similar discussion took place at the accident scene and he said that it continued when the three of them went to the Pier Hotel. He joined in the proposed conspiracy because of his fear of the consequences if he did not and because he was then a reckless, uncaring and dishonest person.

He had come forward to give evidence in the matter, he said, because he had been asked by SGIC and because he did not think it right that the plaintiff should benefit from the claim in circumstances where his stupidity had potentially life‑threatening consequences for Rynhart and the others.
He then went on to describe the telephone conversation he had had with the plaintiff and his solicitor and he sought to involve the solicitor in knowledge of financial offers, he said the plaintiff had made to him, to secure his co‑operation in giving evidence.
On the basis of the unchallenged evidence of de Sousa, I am satisfied that Rynhart is either lying or mistaken when he suggests that de Sousa was present or that he participated in any such call. It does not follow that Rynhart might not have had a discrete phone call with the plaintiff about that, but I find that de Sousa took no part in any such discussion. Nevertheless, there are some common features in these conflicting accounts of what took place and I think it possible that Rynhart is genuinely mistaken in his recollection of what occurred, that he was not passed over to Hansen by de Sousa, but, rather, given Hansen’s number and later spoke to him. What was discussed in that last call, it is not necessary for me to decide, for reasons which will emerge.
It became obvious from remarks made by Rynhart that he bore a substantial amount of ill‑will towards the plaintiff, albeit that he professed to like him. It was not obvious to me from anything led in evidence just why he bore that ill‑will. Perhaps it was that he had acquired a new approach to the question of honesty, perhaps there were other reasons, albeit that none emerged at trial. Rynhart claimed, although Hansen disputed it, that shortly before his conversation with de Sousa, he had asked Hansen to do him a favour, of what I can only understand to be of a quasi‑criminal nature in connection with a person who had offended him (Rynhart). There was no suggestion that Hansen refused or failed to carry out that request and I was thus left to wonder whether there was any other falling‑out between the parties or whether Rynhart’s evidence was simply given out of a newfound desire to be truthful or to prevent the plaintiff from achieving the alleged dishonest purpose.
For all the above reasons, I had reservations about Rynhart’s credibility, generally. It was doubtless tinged by some anger, whether justified or not, and a desire to ensure Hansen received no benefit from this action. I have found against him on a number of issues, but it does not follow that he was necessarily lying about them. Given his state of sobriety and the length of time which has elapsed since these events occurred, I considered his evidence on the principal issue of who was driving to be generally credible and it is corroborated by the original statement Blackwell made to the police, as well, in part, by what he and others then said.
By any measure, Blackwell’s various statements strained credulity. At best, his conclusion that he was the driver was no more than reconstruction: in the face of earlier statements to the contrary (which I am satisfied were made), he said his memory was revived after speaking to the other men. At worst, he was deceitful throughout. Having regard to Hanke’s evidence and, to a lesser extent, that of Rynhart, I am satisfied it was the latter.
That conclusion is not inconsistent with my finding that Blackwell set off from Lipson and it is one that best accords with the expert evidence. Whilst the Potts scenario might be regarded as a possibility, its likelihood is simply overwhelmed by the combined weight of the early police statements made by Blackwell, Beek and Rynhart and the evidence of Hanke and Rynhart.
FINDINGS
The above observations lead me to the following findings:
(1)I am satisfied, and find on all of the evidence, that the four occupants of the car had been drinking in and about the Lipson area since early evening on the day before the accident and that they continued drinking into the early hours of the next day.
(2)I am further satisfied that they had slept briefly that night at the plaintiff’s house and resumed drinking at an early stage the next morning.
(3)I am satisfied that, as Beek says, they, or some of them, went into Tumby Bay that morning and procured more alcohol and that they took some of it to Renfrey’s house at Ungarra, staying there for some hours and consuming it.
(4)I find that Blackwell then drove them back to Hansen’s house, where Hansen intended to advise his de facto wife that they were going into Port Lincoln. I find that Linda Vandenberg was not then at home and that they journeyed to the house of Mr White, where they found her.
(5)I am satisfied that Blackwell was driving the car at that point and that the plaintiff went into the house, told Vandenberg of their intention to drive to Port Lincoln. He then returned to the car.
(6)I am satisfied that Blackwell remained driving the car at that point and that, after unnecessarily reversing it, he drove off towards Tumby Bay.
(7)Whether or not the party again stopped at Tumby Bay is not a matter I have to resolve, but, in any event, I am satisfied they then continued on the Lincoln Highway towards the Louth Bay turn‑off and it was in the vicinity of that turn‑off that the rollover occurred.
(8)I am further satisfied, and find, that the plaintiff has not proved, on the balance of probabilities, that it was Blackwell or another person who was driving the car at the time it rolled. The inference that Blackwell continued to drive the vehicle from Lipson to the point of the accident is, in my opinion, rebutted by the following matters:
(a)Blackwell’s statement, at the scene of the accident, to police officer Hanke to the effect that it was the plaintiff who was then driving, a statement which I am satisfied was made at a time before there was any opportunity for Blackwell or the others to consider it and propose any form of conspiracy as to who the driver was;
(b)the information provided to the police at the scene by Blackwell, Beek and Rynhart, which placed each of them in positions other than the driving seat;
(c)Blackwell’s statement at the hospital to Constable McCormack;
(d)what I have found to be a course of deliberate deception as to the identity of the driver undertaken by Blackwell in subsequent statements and evidence;
(e)the evidence of Rynhart, which I accept on that issue, that Hansen was the driver;
(f)the expert evidence which, whilst not conclusive of itself, more readily supports the likelihood that it was Hansen who was driving.
(9)For the same reasons, I am indeed persuaded, and find on the balance of probabilities, that the plaintiff was driving at the relevant time.
I will hear from the parties as to any consequential orders.

[2002] SADC 13

25 February 2002