Haskett v Territory Insurance Office

[2009] NTSC 37

Haskett v Territory Insurance Office [2009] NTSC 37

PARTIES:	HASKETT, Shannon
v
TERRITORY INSURANCE OFFICE
TITLE OF TRIBUNAL:	MOTOR ACCIDENTS COMPENSATION TRIBUNAL
JURISDICTION:	APPEAL PURSUANT TO S 29 MOTOR ACCIDENTS COMPENSATION ACT NT
FILE NO:	MA 1 of 2006 (20611935)
DELIVERED:	23 July 2009
HEARING DATES:	14 – 15 July 2009
JUDGMENT OF:	MARTIN (BR) CJ
CATCHWORDS:

MOTOR ACCIDENTS COMPENSATION TRIBUNAL exceeded 0.08% at time of accident – held that applicant is entitled to benefit under ss 13 and 17 of the Motor Accidents (Compensation) Act.

Motor Accidents (Compensation) Act s 13, s 17, s 27(2) and s 29(1).

Briginshaw v Briginshaw (1938) 60 CLR 336; Robertson v Territory

Insurance Office [2005] NTSC 74, applied.

REPRESENTATION:

Counsel:

Applicant:	G Clift
Respondent:	B O’Loughlin

Solicitors:

Applicant:	De Silva Hebron
Respondent:	Cridlands MB
Judgment ID Number:	Mar0910
Number of pages:	12

IN THE MOTOR ACCIDENTS
COMPENSATION APPEAL TRIBUNAL

DARWIN REGISTRY

Haskett v Territory Insurance Office [2009] NTSC 37

No. MA 1 of 2006 (20611935)

BETWEEN:

SHANNON HASKETT

Applicant

AND:

TERRITORY INSURANCE OFFICE

Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR DETERMINATION

(Delivered 23 July 2009)

Introduction

1. The applicant was severely injured in a road accident on 26 June 2004. His injuries included the loss of an arm. By application dated 7 October 2004 the applicant sought benefits under the Motor Accidents (Compensation) Act (“the Act”). On 9 September 2005, the designated person made the

   following determination:

“1.	The Applicant is a person who at the time of the occurrence qualified as a resident of the Northern Territory as defined within Section 4 of the Act.
2.	The Applicant was driving a motor vehicle while under the influence of alcohol and/or while he had a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol
per 100 millilitres of blood.
3.	The influence or quantity of alcohol materially contributed to the accident.
4.	That at the time of the occurrence, the Applicant was using a motor vehicle in a manner that created a substantial risk of injury to the person and the person consciously and unjustifiably disregarded the risk or was recklessly indifferent to it.
5.	Accordingly, pursuant to Section 9 the Applicant is not entitled to a benefit referred to in Section 13 or 17 of the Act.”

1. Pursuant to s 27(2) of the Act, on 7 October 2005 the applicant gave notice that he disputed paras 2, 3, 4 and 5 of the determination and requested that the matter be referred to the Board of the Territory Insurance Office. On

   29 March 2006 the Board upheld the determination of the designated person.

2. The applicant has referred the matter to the Motor Accidents

   (Compensation) Appeal Tribunal (“the Tribunal”) pursuant to s 29(1) of the

   Act. The reference claims that the applicant is entitled to benefits identified

   in ss 13 and 17 of the Act. Although the respondent’s reply asserted that the

   applicant is not entitled to a benefit because the accident occurred while the applicant was using the vehicle in a manner that created a substantial risk of injury to the applicant, that ground of resistance was abandoned on the

   hearing of the reference. The only basis upon which the respondent now

asserts that the applicant is not entitled to a benefit under s 13 or s 17 is that
the applicant was driving while there was present in his blood a
concentration of alcohol equal to or more than 80 milligrams of alcohol per
100 millilitres of blood (“0.08%”).

1. The hearing before the Tribunal is a hearing de novo. The burden of

   proving the assertion that at the time of the accident the applicant’s blood

alcohol level was 0.08% or more rests on the respondent on the balance of
probabilities. Although the allegation that the applicant drove with a blood

alcohol level of 0.08% or more is not an allegation of criminal conduct, it is
an allegation of serious misconduct and, if that allegation is found to be
proven, the consequences for the applicant are grave. In these

circumstances the respondent accepted that the principles emanating from Briginshaw v Briginshaw[1] apply. The Tribunal should not lightly make a

finding that the applicant drove in serious breach of the road traffic laws,

and should only do so on the basis of “clear or cogent or strict proof”.[2]

1. For the reasons that follow, I have determined that the respondent has failed

   to prove that the applicant’s blood alcohol level at the time of the accident was 0.08% or more and, therefore, the applicant is entitled to ss 13 and 17 benefits.

   Evidence

2. It is common ground that the applicant was the rider of a motor cycle and

that the accident occurred shortly before 4am on 26 June 2004. Police
records identify 3.54.43am as the earliest time of a call for assistance. The
applicant’s application of 7 October 2004 identified 4am as the time of the
accident. I am satisfied that the accident occurred within only a few
minutes prior to 3.54am.

1. St John’s Ambulance records establish that the ambulance departed the

   scene at 4.17am and arrived at the Royal Darwin Hospital at 4.27am.

2. Doctor Lettmaier was working in the Emergency Department of the hospital

when the applicant was admitted. He and other medical practitioners were
ready to receive the applicant when the ambulance arrived. At that time the
applicant was suffering from severe blood loss and was in a life threatening
condition. Priority was given to resuscitating the applicant in order to
stabilise his cardio vascular situation by the intravenous introduction of
fluid and blood products.

1. The time at which blood was taken for subsequent analysis for the presence

of alcohol is a significant issue. In that context, Dr Lettmaier explained the
sequence of events following the arrival of the applicant at the hospital.
After the applicant was placed on a stretcher, his clothes were removed and

he was checked for injuries. Standard procedure involved taking his blood pressure and pulse, listening to the heart, checking the limbs and palpating

the abdomen. Doctor Lettmaier was given the task of putting a cannular into
the applicant’s remaining arm, but that proved to be extremely difficult
because, peripherally, the applicant’s veins had shut down due to the loss of

blood.

1. In his affidavit of 16 January 2009, Dr Lettmaier stated that after about two

   minutes of unsuccessfully attempting to gain access to the applicant’s veins in his remaining arm, a decision was made to put a central catheter into one

   of the neck veins. The situation was urgent. In his affidavit, Dr Lettmaier stated that he recalled the consultant doctor saying something to the effect of, “We really must get access now and there may not be any time to get

sterile access”. In evidence Dr Lettmaier said the decision was taken
urgently and it was his recollection that the anaesthetist was “pretty quick”
in inserting the catheter into a vein in the neck.

1. During cross-examination Dr Lettmaier said it could have taken as long as

   30 minutes for this sequence of events to have occurred, but he agreed it was

more likely that the catheter was inserted shortly after arrival than closer to
5pm. In view of the applicant’s life threatening situation and the need for

the injection of fluid into the applicant’s cardio vascular system, I am
satisfied that the catheter would have been inserted well before 5am. It is
likely to have been inserted by about 4.40am to 4.45am.

1. Doctor Lettmaier was given the task of arranging blood samples for blood

alcohol and pathology purposes. He stated in his affidavit that immediately
following the insertion of the catheter, blood samples were drawn from the

applicant. In his evidence he confirmed his belief that blood samples were
taken before fluids were inserted through the catheter.

1. In respect of blood for the purposes of blood alcohol analysis, I am satisfied

that Dr Lettmaier used the standard kit provided by the hospital for this
purpose. There is no dispute that the hospital stocked such kits for these

purposes and the container into which the blood sample was placed was

accompanied by the standard forms found in the kits. Nothing in the
evidence suggests that a standard kit was not used or that, somehow, a
different container was used. The possibility of this occurring was not

raised with any witness.

1. Although he had no recall in the witness box of the removal of blood or of

   how blood got into the container, Dr Lettmaier had an independent

recollection of holding the container and writing on the certificate, after
which he placed the container and the certificate into the plastic bag.
Doctor Lettmaier had no independent recollection of placing the plastic bag

and its contents into the box designated for holding these types of samples.
He stated in his affidavit that he would not have left the sample lying around

and either he or someone under his supervision would have sealed the
sample and placed it in the designated box which was only two to three
metres away from where the samples were placed after they were taken from
the applicant. Doctor Lettmaier stated in his affidavit that the time between
the sample being taken and placement in the box would have been no longer
than half to three quarters of an hour. I accept that evidence.

1. Counsel for the applicant urged that the evidence was not capable of

supporting a conclusion on the balance of probabilities that the container
into which the blood was placed contained a preservative. In those

circumstances the possibility existed that when the sample was analysed
approximately four weeks later on 24 July 2004 the sample had commenced
breaking down which would result in the contamination of the sample and an

unreliable alcohol reading.

1. I do not accept that submission. As I have said, I am satisfied that a

standard kit was used and there was no challenge to the evidence of the
forensic chemist, Ms Kathleen Poel, that containers in standard kits contain

or are treated with a preservative to prevent the breakdown of the sample.
Containers from standard kits also contain or are treated with an

anticoagulant to prevent clotting of the blood as it ages and Ms Poel would have expected to see and record signs of clotting if the particular container

was missing the anticoagulant. The absence of such clotting is a pointer to
the existence of anticoagulant and the presence of anticoagulant is a piece of
circumstantial evidence pointing in the direction of a container from a
standard kit.

1. The certificate completed by Dr Lettmaier records that the applicant entered

   hospital at 4.30am and that Dr Lettmaier took a sample of the applicant’s

   blood at 5am. Dr Lettmaier said it was possible that blood was taken at

   5am, but more likely that it was taken earlier and he rounded the time on the

certificate to 5am. He agreed it was more likely to have been in the vicinity
of 4.45am – 4.50am. As I have said, the catheter would have been inserted
by about 4.40am to 4.45am and I am satisfied that the blood sample for
testing for the presence of alcohol would have been taken from the applicant
at about 4.40am to 4.45am.

1. As to what happened to the sample after it was placed into the designated

   box, Ms Poel was employed at the Forensic Services Branch in July 2004.

   In her affidavit of 20 January 2009 Ms Poel stated that she had been

employed by NT Police for over ten years and had conducted hundreds of
analyses of blood for the purposes of determining blood alcohol
concentration. On occasions Ms Poel had also attended at the Royal Darwin
Hospital to collect samples destined for analysis. In her affidavit Ms Poel

explained that samples collected from the hospital by personnel from
Forensic Services are collected from a “locked box inside a refrigerator

located in the Resuscitation Room”. Only the forensic chemistry section has

the key to the box.

1. Dr Lettmaier recalled that there was a box designated for forensic samples

which he described as having a slot like a post box into which samples were
placed for collection by police. It was the type of box from which he was

unable to remove contents. Purely from memory, Dr Lettmaier said he could
not recall the precise storage area for the box, but it was his memory that it
did not look like a refrigerator or an area subject to individual cooling.

1. I am satisfied that the box containing the sample from the applicant was

   stored in appropriately refrigerated conditions until it was collected on 19 July 2004 by Ms Ruth Whitford, a police officer who worked in the

   Forensics Services Branch.

2. It is unnecessary to canvass the evidence concerning the analysis of the

sample. There was no challenge to the reliability of the procedures
followed. I am satisfied that the result of 122 milligrams per 100 millilitres

of blood (“0.122 %”) is an accurate result. Further, I am satisfied that when
the blood sample was taken from the applicant at about 4.40am to 4.45am,
the concentration of alcohol in the applicant’s blood was 0.122%. The
critical question is whether the respondent has produced clear and cogent
evidence that at the time of the accident shortly before 3.54am the
concentration of alcohol in the applicant’s blood was 0.08% or more.

Time of Accident – Blood Alcohol Concentration

1. The respondent relied upon the evidence of Dr Jason White which is based

upon average rates of absorption of alcohol into the blood and elimination of
alcohol from the blood. Dr White gave evidence that, on average, the
alcohol content of a standard drink will be totally absorbed into the blood
over a period of approximately 40 minutes. The average rate of elimination
is 0.015% per hour.

1. A number of factors are capable of affecting the time taken for absorption

   including the presence or otherwise of food in the stomach and the

   emotional state of the person concerned. A significant quantity of food will delay absorption and, in the opinion of Dr White, delay can also be caused if the person is highly stressed. Following severe injury, the bodily functions

not related to survival tend to shut down and, in such circumstances, the rate
of absorption is likely to decrease. However, there have been no studies on
the effects of stress or severe injury.

1. In the opinion of Dr White, these and other factors could delay the

   absorption of the alcohol content of a standard drink by ten to 15 minutes. No evidence was led as to the applicant’s intake of food and Dr White was

unable to comment on the extent to which absorption was likely to have
been delayed by the severe injury sustained shortly before 3.54am.

1. The applicant’s drinking pattern in the hours leading up to the accident is

unknown. Relying entirely upon the average absorption and elimination
rates, the respondent urged that a level of 0.122% approximately one hour
after the accident leads to a conclusion on the balance of probabilities that at
the time of the accident the blood alcohol concentration was at least 0.08%.
On the other hand, the applicant urged that there is an alternative view not

excluded by the respondent.

1. Doctor White as asked to assume that the applicant had consumed sufficient

alcohol to reach a level of 0.06% shortly before riding the motor cycle. The
applicant then consumed three to four standard drinks rapidly and the
accident occurred within about five minutes of consuming the last drink. On
the basis of those assumptions, Dr White said it was probable that the
applicant’s blood alcohol concentration would not have reached 0.08% at the
time of the accident.

1. Counsel for the respondent submitted that the scenario advanced to Dr White

   by the applicant involved a most unlikely course of events. On this view,

the applicant had behaved in a relatively responsible manner having
consumed only enough alcohol to reach 0.06% approximately one hour
before the sample was taken, but behaved irresponsibly shortly before

commencing to ride the motor cycle by engaging in binge drinking. The
difficulty facing part of this contention is that nothing is known about the

pattern of drinking earlier that night.

1. The science relied upon by the respondent in respect of rates of absorption

and elimination is inexact. It is all about averages. Those averages can be
affected significantly by factors about which no evidence was led. In
addition, it is well known that people who have consumed alcohol do silly
things. This includes engaging in binge drinking immediately before driving
and consuming, within a short period at the end of a drinking session, drinks
containing high levels of alcohol.

1. The burden rests on the respondent to establish its case through the

   presentation of clear and cogent evidence. In the absence of any evidence as

to a drinking pattern or consumption of food by the applicant in the hours
leading to the accident, in my view evidence based on an inexact science of

averages which allows for a possibility of a late flurry of drinking resulting
in a level of less than 0.08% at the time of the accident is not clear and

cogent evidence that the applicant’s blood alcohol concentration was 0.08%
or more at the time of the accident.

1. For these reasons, in my opinion the respondent has failed to make out its

case. I determine that the applicant is entitled to a benefit identified in
ss 13 and 17 of the Act.

---------------------------------

[1] (1938) 60 CLR 336.

[2] Robertson v Territory Insurance Office [2005] NTSC 74 at [12].