John Veigel v Christine Broughton; Christine Broughton v Nominal Defendant - [2009] NSWDC 397

No judgment structure available for this case.

CITATION: John Veigel v Christine Broughton & Ors; Christine Broughton v Nominal Defendant & Ors [2009] NSWDC 397

HEARING DATE(S): 27 April to 1 May, 5 to 8 May, 11 to 15 May 2009

JUDGMENT DATE:
19 June 2009

JURISDICTION: Civil

JUDGMENT OF: Walmsley SC DCJ

CATCHWORDS: TORT – Negligence – Causation - Motor Vehicle Accident - Retrial - Failure of Party to Call Witness – Significance of Lies – Dangers of Identification Evidence Concerning Motor Vehicle – Preconditions for Finding Against Nominal Defendant – Significance of Flight of Alleged Driver After Collision

LEGISLATION CITED: Evidence Act 1995
Motor Accidents Compensation Act 1999

CASES CITED: Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135
R v Jovanovic (1997) 42 NSWLR 520
R v DBG [2002] NSWCCA 328
R v Clout (1995) 41 NSWLR 312
Howell v The Nominal Defendant (1961-2) 108 CLR 552
R v Edwards (1992) 173 CLR 653
R v Renzella [1997] V.R. 88
Edwards v The Queen (1993) 178 CLR 193

PARTIES:
John Veigel v Christine Broughton & Ors
Plaintiff - John Veigel
First Defendant - Christine Broughton
Second Defendant - The Nominal Defendant
Third Defendant - Mr Elwin Bell
Fourth Defendant - Mr Jamie Gary Dee
Fifth Defendant - Mr Dean Davis
Christine Broughton v Nominal Defendant & Ors
Plaintiff - Christine Broughton
First Defendant - The Nominal Defendant
Second Defendant - Mr Elwin Bell
Third Defendant - Mr Jamie Gary Dee
Fourth Defendant - Mr Dean Davis

FILE NUMBER(S): 8279/2002; 1082/2004

COUNSEL:
John Veigel v Christine Broughton & Ors
Plaintiff - Mr A J Black
Second Defendant - Mr R Stitt QC and Mr D Wilson
Third and Fourth Defendants - Mr J Maconachie QC and Mr C L Thompson
Fifth Defendant - Mr R W Seton SC and Mr P Carr
Christine Broughton v Nominal Defendant & Ors
Plaintiff - Mr C T Barry QC and Mr P Frame
First Defendant - Mr R Stitt QC and Mr D Wilson
Second and Third Defendants - Mr J Maconachie QC and Mr C Thompson
Fourth Defendant - Mr R W Seton SC and Mr P Carr

SOLICITORS:
John Veigel v Christine Broughton & Ors
Plaintiff - Stacks/Goudkamp
Second Defendant - Sparke Helmore Lawyers
Third and Fourth Defendants - Carroll & O’Dea Lawyers
Fifth Defendant - Curwoods Lawyers
Christine Broughton v Nominal Defendant & Ors
Plaintiff - Keddies Lawyers
First Defendant - Sparke Helmore Lawyers
Second and Third Defendants - Carroll & O’Dea Lawyers
Fourth Defendant - Curwoods Lawyers

JUDGMENT

Introduction

1 The question to be decided in this case is who was responsible for a collision which occurred at about 2.10pm on 11 February 2001 on the Princes Highway, just a few kilometres north of Bega, when a line of trucks, caravans and semitrailers used by people in the side show industry, was making its way to the Bega show. The collision involved two cars which collided head on in a northbound lane. The car coming from the north, just before the collision, crossed onto its incorrect side. It did so by reason of the action of the driver of a truck towing a caravan. That truck had moved across from an adjoining overtaking southbound lane, forcing it to leave its lane and move across to the northbound lane. Mr Veigel, the driver of the northbound vehicle, was very severely injured. He was unconscious for two months afterwards and recalls nothing of the collision. The driver of the southbound vehicle, Mrs Broughton, was seriously injured. She did not lose consciousness. She was able to give evidence about the collision.

2 Arising from the injuries Mr Veigel and Mrs Broughton received, each of them commenced proceedings for damages. Each of them alleged the driver of the relevant truck had been either:

or

The Nominal Defendant (second defendant in Mr Veigel’s case and first in Mrs Broughton’s) has been sued by both Mr Veigel and Mrs Broughton in respect of that third possibility. The Nominal Defendant, through its counsel, Mr R Stitt QC, (with Mr D Wilson) conceded when the trial commenced, that he would not submit Mr Veigel had failed to conduct due enquiry and search. In the course of the trial he announced the same concession in the case of Mrs Broughton. In addresses, no submissions were made about the issue of due enquiry and search. For reasons which later appear, that issue is not one which I have to decide. But had I been called on to do so, I would have found each of Mr Veigel and Ms Broughton had engaged in due enquiry and search. There was ample evidence to justify that finding in each of their cases.

3 In Mr Veigel’s case, Mrs Broughton was joined as first defendant. The third defendant was Mr Elwin Bell, owner of the vehicle being driven by Mr Dee. In Mrs Broughton’s case, Mr Elwin Bell was second defendant, and all defendants in her case alleged she had been guilty of contributory negligence. Before me however all three, through their counsel, informed me that that defence would not be relied on.

4 In a letter from the solicitors acting for Messrs Dee and Elwin Bell, dated 27 February 2004, they admitted:

A Previous Hearing

5 There was an earlier trial, resulting in a judgment against Mr Dee as driver and Mr Elwin Bell as owner, of the relevant vehicle, in favour of Mr Veigel, and a judgment (subject to a reduction of 50 per cent for contributory negligence) in favour of Mrs Broughton. Judgment was entered for Mr Davis and for the Nominal Defendant.

6 The Court of Appeal on 20 March 2008 set aside the orders against Messrs Dee and Bell and in favour of Mr Davis and the Nominal Defendant, and ordered all parties have a retrial, to determine only which of the defendants’ negligence had caused Mrs Broughton’s car to move into the path of Mr Veigel’s car. The Court also set aside the finding of contributory negligence the first trial judge had made against Mrs Broughton. As clarified by the High Court of Australia on 26 August 2008 on a special leave application, the issues to be retried do not include any question about Mrs Broughton’s part in the collision. When refusing leave to appeal from the Court of Appeal, Gleeson CJ said:

“The retrial is to proceed on the following bases which are implied in order 15 of the orders made by the Court of Appeal:

(a) A vehicle referred to in that order as “the offending vehicle” pulled out into the path of the vehicle driven by Mrs Broughton when Mrs Broughton’s vehicle was overtaking vehicles in the left lane of the highway;

(b) The driver of the so-called “offending vehicle” was at fault in pulling out into the path of Mrs Broughton’s vehicle and that fault was a cause of the collision between Mr Veigel’s vehicle and Mrs Broughton’s vehicle;
(c) The only available answers to the question about the identity of the owner/driver of the offending vehicle are (1) Mr E Bell, (2) Mr Jamie Dee, (3) Mr Dean Davis or (4) that the identity of the vehicle cannot, after due search and inquiry, be established. Consistently with the orders made by the Court of Appeal and implicit in order 15 was that Mrs Broughton herself was not at fault.”

(Hereafter I shall also call the vehicle responsible for the collision “the offending vehicle” and the driver responsible for the collision “the offending driver”.)

7 Mr Veigel’s damages have been agreed and paid. Mrs Broughton’s damages are still to be assessed. I am not required in these proceedings to assess those damages.

The Retrial

8 On the retrial, Mr Veigel’s counsel, Mr A. J. Black, called Senior Constable Milton, the first police officer to reach the scene of the collision after it occurred. Then he called eye witnesses, viz Mr Hodkinson, Mr Lear and Mr Davis’ former girlfriend, Ms Grey. He tendered the transcript of the evidence of Mr Lear’s daughter, from the first trial, but did not call her. Mr C. T. Barry QC, who, with Mr P. Frame, appeared for Mrs Broughton, called only Mrs Broughton and a former police officer, Mr C. M. Fowler. The Nominal Defendant did not call any witnesses. Mr Maconachie QC, who with Mr C. T. Thompson appeared for Messrs Bell and Jamie Dee, called Mr Owen Bell, his father, Mr Elwin Bell, and Mr Dee. In the case of Mr Davis, for whom Mr R. W. Seton SC and Mr P. Carr appeared, witnesses called were Mr Davis, and his grandfather, Mr L. J. Davis.

9 In general terms the plaintiffs allege that the offending driver was in a long line of traffic on a single lane heading south towards Bega. At a point about ten kilometres north of Bega there is a bridge called Stoney Creek Bridge. To the south of that is an overtaking lane for south bound traffic. At that point the road goes up a hill with a right curve then a left. After the line of traffic arrived at Stoney Creek Bridge, Mrs Broughton was in the overtaking lane, when the offending vehicle moved across from her left, forcing her into the path of an oncoming car driven by Mr Veigel.

10 Mr Dee, who was driving a Hino truck (Mr Dee’s truck) owned by Mr Elwin Bell, and towing a caravan owned by Mr Owen Bell, says he was not the driver of the offending vehicle, but he was told about the collision when he was ahead of the point of impact, and he stopped his vehicle at the top of the hill, where he found a place to park. His fellow employee, Mr Owen Bell, driving a semi trailer, (Mr Bell’s truck) joined him there soon after, and the two returned on foot to the scene of the accident. Several eyewitnesses later saw Mr Dee’s vehicle at the top of the hill and identified it as the offending vehicle. However several other witnesses (including Mr Bell) identified Mr Davis as the driver of the offending vehicle, which they said had kept going after the accident, driving south. Mr Davis denied he had been there at all that day.

11 I shall now summarise the evidence. As will have become apparent, two major issues in the case were:

(a) whether an error of identification was made by the witnesses implicating Mr Dee’s truck as the offending vehicle; and
(b) whether Mr Davis was at the accident scene at the relevant time.

12 Ultimately there was no significant attempt by any party to show the collision had been caused by an unidentified vehicle, and the parties proceeded on the assumption it had been caused by either Mr Dee or Mr Davis. By agreement of all parties, the evidence in each case was also the evidence in the other.

Evidence of Senior Constable Milton

13 The first police officer on the scene was Senior Constable Milton, who, on 11 February 2001, was stationed at Merimbula, on general duties.

14 On the afternoon of 11^th February he received a radio call informing him of an accident on the Princes Highway, north of Bega. By the time he arrived, at 2.37pm, the Volunteer Rescue Association (VRA) personnel from Bega had arrived. Senior Constable Milton observed Mr Veigel’s car, a white Datsun, against the railing, on the western side of the roadway. He observed Mrs Broughton’s car, a green Holden Commodore, facing west. He concluded the two vehicles had had a head on collision. VRA members were trying to remove Mr Veigel from his car. Ambulance officers were treating the injured.

15 He spoke to Mrs Broughton, who, as it happens, he knew. Mrs Broughton told him she had been overtaking two trucks. When she got halfway past the first one the second had pulled out to overtake. She braked and swerved. She had nowhere to go.

16 He received no information while he was at the scene which assisted in identifying the offending vehicle. His primary concern was to control the traffic and record the details of witnesses. He appreciated, by reason of the seriousness of the injuries to some people, that he was dealing with a crime scene, and that specialist accident investigating police would later come to the scene and carry out their own investigation.

17 He estimated the point of impact as being less than 500 metres, perhaps 400 metres, to the south of the Stoney Creek Bridge on the Princes Highway. Immediately to the south of that bridge, he said, the southern carriageway became two, providing an overtaking lane. At the point of impact, the distance from Bega, could have been 10 kilometres. At a point about 500 metres to the south of the point of impact was the turn off to the Snowy Mountains Highway, which led to Cooma via Brown Mountain, and then to Canberra.

18 He travelled to the scene at a speed of up to 140 kilometres per hour. He did not recall what vehicles had driven past him from the north on his way to the scene. It took him fifteen to twenty minutes to drive to the scene from where he had been when he received the call. At the top of the hill before reaching the scene, but about 400 metres from it, he observed two vehicles parked on the eastern side, one with a silver coloured trailer, and two men standing at the front of the vehicles, apparently talking. There was exploration in the course of the trial about whether these could have been Mr Dee’s truck and Mr Bell’s truck. He was shown photographs of the caravan Mr Dee said he was towing that day. The following evidence was then given:

“Q [A]re you able to comment on whether that does or does not appear to be the trailer that you have described as being attached to the rear of one of the trucks?
A. I remember – and it being a long time ago – a silver and – I would say no.

Q. All right. And in terms of this trailer that you remember was it a trailer height wise that went up to the height of approximately the cabin of the truck or was it something that was only approximately half the height, or--
A. The caravan for the – the trailer going up as high as the back of the truck.
Q. That’s your recollection?
A. Yeah, yeah, they were about level, yeah.” T49.8-21

19 He was also shown a photograph Exhibit J of the semitrailer Mr Bell had parked at the top of the hill just after the accident but he said he did not remember seeing a truck like that.

20 Senior Constable Milton had travelled on the same stretch of road on 26 April 2009 and had noticed that the point of impact could be observed from Stoney Creek Bridge from the perspective of someone travelling south in a car.

21 It was not submitted to me that I should not accept Senior Constable Milton as a witness of truth and accuracy, and I do so.

Evidence of Mr Hodkinson

22 Mr Hodkinson lived on a farm near Bega. On this day he was driving south, on his way to Eden. He was in a line of vehicles which included vehicles ahead of him which he said were connected with “the show circuit”. The line ahead of him included several trucks. Some of the vehicles ahead of him were cars. As Mr Hodkinson approached the overtaking lane to the south of Stoney Creek Bridge, he saw two cars collide head on. He was momentarily puzzled. Then, seconds later, as he got closer, he observed that a truck towing a caravan appeared to be sprawled across both southbound lanes, with the caravan mainly in the slow lane and the truck mainly in the fast lane. Earlier, this truck and caravan had been in the convoy three vehicles in front of him. When he saw them after the accident, the vehicles were either stopped, or moving at a slow speed. They were slightly past the point in the road where the impact had occurred.

23 He described the truck as of less than five tonnes, whitish in colour, with a vertical exhaust on the left hand side, and a greyish, canvas type canopy rather than a metal structure on the back, roughly level with the top of the cabin. It was not a pantechnicon. The caravan, he said, was whitish in colour, with one wide red/orange stripe along both sides, seven to eight metres in length, with four wheels and dual axle. It was similar to the old Department of Main Roads caravans – an older style. He did not recall its having any rear windows. Its height was about the same as that of the truck. It was not a tall caravan. He was shown photographs of the caravan Mr Dee said he was towing that day. But the caravan Mr Hodkinson saw was a different style. Though its colour was similar, he thought Mr Dee’s looked purpose built. He said the one he saw was “more a production type caravan. A much more common sort of van”. The truck towing the caravan he saw was not like Mr Dee’s truck.

24 Mr Hodkinson agreed with Mr Seton that his evidence about the truck and caravan came mostly from his observations while travelling behind them, and at a considerable distance. He agreed that at the first trial he had said he could not dispute that Mrs Broughton had passed the truck and caravan without incident, and that having done that, she was faced with another truck and caravan pulling into the overtaking lane, causing her to take evasive action. He agreed he had said at the first trial when asked if the description of the caravan and truck he had given had possibly not been of the truck and caravan he had seen travelling three vehicles in front of him, and that there had been another truck and caravan which had caused Mrs Broughton to take evasive action. He had answered, “Look I just don’t know”. That, he said to me, had been a truthful answer. However in re-examination he gave this evidence:

“Q. When you saw the truck and caravan combination, very shortly after you observed the impact between the two cars, was that the same truck and caravan that had been travelling two cars in front of you as you had been travelling in the convoy before you got to Stoney Creek Bridge?

A. Yes, to my recollection.”

25 He stopped his car briefly, before the point of impact. He estimated that between eight to ten other people had also stopped. One, a man, told him he knew first aid, and that the man in the white Datsun should have his head tilted back. Then he observed that the man’s head had been tilted back. He did not see who had done that. He found his experience stressful.

Credit Of Mr Hodkinson

26 I formed the view that Mr Hodkinson was a careful and attentive witness. He readily made concessions, such as that his memory for relevant events would have been better at the first trial, and that he had refreshed his memory for this trial by reading the evidence he had given at the first. I formed the view he was honest, and doing his best to be accurate.

Evidence Of Mr Lear

27 Mr Lear was travelling south with his eleven year old daughter. He found himself caught behind slow moving traffic. He recognized it as traffic associated with the then, soon to commence, Bega show. In front of him was a prime mover with a carnival ride on the back of it, followed by a truck and caravan, then a Toyota Land Cruiser, and finally a green Commodore. The vehicle slowing all the traffic down, he said, was the prime mover, which, he thought resembled the truck in Exhibit J. (Mr Bell’s truck.) When he observed that, it was the focus of his attention, and he was unconcerned with what was further up the road, although he saw no other vehicles travelling immediately in front of it. The truck behind that, he described as like a “pantech …[of a similar size and length to a pantech] … and it was towing a white creamy caravan … fairly long … dual axle.” The truck towing that caravan, he said, had a metal box on the back. The cabin was creamy white in colour. He did not recall a vertical exhaust. As to the caravan, it did not appear to have any rear windows. There was some writing on the back but he could not recall what it said. In cross examination he agreed he had later told Detective Senior Constable Fowler that the writing had been about 20 cm high and had said something like ‘majesty’ or ‘majestic’. He said the caravan had small turning indicator assemblies with tail lights combined in the assemblies, rectangular in shape (“smaller than the size of a tissue box”) and a small, black and white, number plate.

28 After the vehicles in front of him had crossed Stoney Creek Bridge, they began to accelerate. At the point where the southbound lane became two, the Land Cruiser took the fast lane. Then the Commodore sped up. There was a gap of 50 to 100 metres between the Land Cruiser and the Commodore as the two vehicles went up the hill. The Land Cruiser disappeared from sight. As the Commodore went into the overtaking lane, he saw the right hand indicator on the caravan flashing. Then the truck and caravan pulled out into the overtaking lane in front of the Commodore. They blocked the Commodore’s path. The Commodore veered onto the opposite side of the road and collided with an oncoming car. Then the truck pulling the caravan accelerated past the prime mover and disappeared from his view.

29 He drove for a short distance past the point of impact, found a place to park, and stopped for a few minutes to render assistance. Then he drove off again. When he reached the top of the hill he “noticed the prime mover and the truck and caravan parked on the side of the road.” They were side by side, the prime mover being the vehicle closer to the road. He saw two men standing at the front of the prime mover. He stopped his car and wrote down the registration number of the caravan parked there. He later provided the number to police. To me he said the truck towing the caravan had been “very similar” to Mr Dee’s. He told me the number plate from which he took the number had been old – black, on a white background, and with no state identification. He could not recall the number, but it had begun with an “0”. He could not recall whether the caravan had had an orange or red stripe down its side. T102 He was shown photographs of the caravan Mr Dee later told me he had been towing. He said that was not the caravan whose number he had written down. He could not recall its having two windows, and its indicators and tail light assemblies were much larger that on the one he had seen. Further, it did not have the “box” at the back. T100 Nor did it have three axles. The number plate seemed lower, and he could not recall the lights at the top. He could not recall the words: “Caution Long Load” on the rear. On the question of the identification of the truck and caravan and whether he had made an error of identification, in cross examination by Mr Maconachie he gave this evidence:

“Q. Because you had only seen one semitrailer and one caravan, you assumed, did you not, that they were the vehicles that you had seen further down the hill??
A. I was fairly certain that they were the caravan and truck involved in the accident because they were similar and looked the same as the ones that were going up the hill.

Q. But I am putting it to you that when you saw the semitrailer you recognised that as being the semitrailer involved in the accident in the sense of being present at the time of the accident. Is that correct?
A. Yes.
Q. You saw a caravan and truck combination largely obscured by the trailer of the semitrailer and made the assumption that that was the caravan and truck combination that you had seen earlier. Will you agree with that proposition?
A. It was because the rear of the caravan I could see looked the same as the rear of the caravan that was going up the hill.” T112

(It was put in closing addresses by Mr Seton that Mr Maconachie had never put to Mr Lear that he had been wrong in identifying the caravan at the top of the hill as the one being towed by the offending vehicle. But I am satisfied Mr Maconachie’s cross-examination, though it did not include a direct suggestion he had been wrong, did squarely raise the correctness of his identification evidence. Further, Mr Seton did not submit that by reason of Maconachie’s not having put squarely to Mr Lear he had made an error of identification, that it would not be open to me to find he had made such an error. Indeed, I took him, ultimately, to concede such a finding was open to me. Although he urged me not to make it.)

30 Another eye witness, Ms Grey, who said she had been a passenger in Mr Davis’ truck and that Mr Davis had been the driver of the offending vehicle, said that shortly before the accident Mr Davis had been engaging in a somewhat foolish manoeuvre, involving his driving a little onto the other side of the road as if to pass, then pulling back to where he had started from. However Mr Lear recalled nothing of any vehicle in front of him engaging in such a manoeuvre. He said however that from time to time, on the road leading up to Stoney Creek Bridge, vehicles in front of him would be lost from his view. Further, from his experience, someone hauling a caravan may perform such a manoeuvre to look up ahead. T348.45

31 Mr Lear was cross-examined extensively about the circumstances in which he had recorded the caravan’s number. He agreed that if at the time he observed the caravan at the top of the hill its number had been F34209, then he had not observed it accurately.

Credit of Mr Lear

32 Mr Lear impressed me as a man who took care. He made appropriate concessions, such as that mistakes of observation are made with the best will in the world, and trying as hard as one can. I conclude that Mr Lear was honest, and did his best to be accurate, but I shall return later to the issue of whether his recollection was in fact accurate.

Evidence of April Lear

33 Mr Lear’s daughter, April, gave evidence at the first trial. She was not called at the second. By consent of all parties, a transcript of her evidence was tendered. Exhibit N I was told when the transcript was tendered that no submissions would be made by any party about her veracity, although submissions would be made about her accuracy. To the limited extent that submissions were made about April Lear, they did only deal with her accuracy.

34 She was eleven at the time of the accident, and had been travelling in the front of Mr Lear’s car. At the point where the overtaking lane commenced, she saw cars moving into the overtaking lane. Then she saw a caravan being towed by a truck, with its right hand indicator on. It was behind a large truck. As it was being overtaken by the car in front of her, the caravan began to move into the overtaking lane, causing the car to swerve to the opposite side of the road and hit an oncoming car. She and her father then stopped to help the victims. After a short time they continued on. As they got a bit further along she saw a caravan on the left side of the road. It looked the same to her as the one she saw “going to overtake the truck.” Her father did not stop, but he slowed down, remaining on the bitumen roadway. Her father asked her to write down its number. She did so, checking with him that she had recorded it properly. She was shown a photograph of the caravan Mr Dee said he was towing, but she said it did not look the same as the one on the side of the road. She referred to the ‘box’ on the back, and the rear windows, in that context. But she did not explain further. The caravan’s colour had been a bright one, she said, yellow or white. She said of its size: “It wasn’t a really short caravan, it probably was one of the normal ones”. She could not recall the colour of the number plate. In cross-examination she maintained she was ‘certain’ the caravan on the top of the hill was the one involved in the accident. She agreed that she had later discussed what had happened, with her father. She also agreed that most of the things she had been asked about she was not sure about.

35 I shall return later to consider the question of her accuracy.

Evidence of Stacey Grey

36 Ms Stacey Grey was, at the time of the collision, in a relationship with Mr Davis. She said they had been together since she was fifteen. They travelled around together, going from show to show. He had several games he carried on the truck. She helped him with his business. At the time of the accident they lived in a 27 foot caravan. It had stripes along both sides, with windows on both sides but not at the back. Mr Davis had a truck which was used to tow the caravan. He had no driving licence, but invariably drove the truck, including on the highway. According to her, on the day of the accident, they were either heading towards Bega or leaving Bega: she could not recall which. His sixteen year old employee, Brian, was in the truck with them, in the seat next to the passenger door. She knew Mr Bell. There came a point when they were travelling behind Mr Bell’s truck, with Mr Bell driving. It was then Mr Davis engaged in the foolish manoeuvre I have referred to earlier, when he acted as though he was about to pass by pulling out a little on the opposite side of the road, then pulling back in behind him. As she put it: “He was mucking around laughing like he was going to overtake, yes I am, no I’m not, yes I am, no I’m not.” As she said that, she moved her right hand backwards and forwards from left to right. At the time of that manoeuvre she saw a car behind them. It was a blue or grey Commodore, an older model.

37 Then there came a time when Mr Davis pulled out to pass Mr Bell’s truck as they were going up a hill: “[T]he car behind us must have pulled out to overtake or look…to see if they could overtake and Dean’s quickly pulled back in and the collision occurred right beside the driver’s side window.” T128 She said Mr Davis did not use his indicator. She did not see a collision. But she heard a very loud noise. She and Mr Davis kept going up the hill. She asked him to stop so that she could see if anyone had been hurt. But he said: “No I can’t love. I’m on my Ls. The coppers will be down there.” T129.16 After travelling ten to fifteen kilometres they did eventually stop. While they were stopped he spent some time on his mobile telephone. She did not hear what he was saying. Then they changed course and drove to Canberra and stayed at the Canberra showground for several days, although there was no show on there at the time. They did not go to Sydney, although that is what Mr Davis said they did on 11^th February.

38 Ms Grey did not give evidence at the first trial. Mr Seton made a vigorous attack on her credit. By the time of this trial she and Mr Davis had been apart for some years. Each had formed new relationships. She had had three children, including Jordan, her eldest, of whom Mr Davis was the father. Early in 2008 her youngest child died. Soon after, Mr Davis took proceedings to obtain custody of Jordan. She did not contest the application. An order for joint custody was made, with day to day care of Jordan resting with Mr Davis. He has had day to day care ever since. In the course of the custody proceedings Mr Davis and his de facto partner made some significant allegations against Ms Grey. There was also a period late last year when Ms Grey was only permitted access to Jordan if supervised. Mr Davis’ application for custody was served on Ms Grey at about the time she first gave a statement to insurers implicating Mr Davis in this case. Mr Seton put to her that she hated Mr Davis, having lost custody of her child to him, and had been motivated by revenge to give false evidence against him in this case, so he would be prosecuted for a serious offence, and be imprisoned, so she would thereby regain custody. She rejected those propositions. She did concede however that she had recently said to him:

“You’re fucked… and this is all going to come back on you and you’re going to end up in gaol.” T281.40

Ms Grey’s Credit

39 Ms Grey’s part in this case was highly significant. For reasons which appear below, the other witness who said Mr Davis was at the scene, Mr Bell, is a man whose credit was so impaired, I am reluctant to accept anything he told me for which there is no corroboration. And if I were to accept Mr Seton’s submissions about Ms Grey, that would involve my finding that she came to court and gave evidence about matters she did not witness, making her a perjurer, and someone who was attempting to pervert the course of justice.

40 In deciding what credit to give Ms Grey’s evidence, I accept Mr Seton’s submission that there were many unsatisfactory aspects of it. There were certainly matters which gave me pause:

(a) I have referred to her relationship with Mr Davis, her loss of day to day custody of their son and her providing a statement about his alleged part in this matter for the first time, at about the same time as documents were served on her for the purpose of a custody application by Mr Davis;
(b) There is her admission set out at the end of paragraph 38. I infer if he were found guilty of an offence arising from the collision, he may receive a sentence of imprisonment, and that that was her opinion when she made that statement;

(c) While giving her evidence, Ms Grey was not good at recalling peripheral matters about the accident. For example:

she said she did not know which direction they had been travelling in at the time ;
she did not recall leaving a showground before the accident;
she did not recall whether at the time of the accident they had been on their way to or from Bega, or whether they had recently been to Nowra;
despite her evidence in [36]-[37] above, in the course of cross-examination she said she had no idea what had caused the accident T215.36 or whether there had been one T221.47 ;
she said she did not recall an overtaking lane at the scene where she heard the crash, saying she was “95% sure” the accident had not occurred in an overtaking lane T150.48 ;
she told me she did not see the other vehicle (i.e. the oncoming vehicle) before the accident.

Yet, as Mr Seton noted, some things she seemed to recall well. For example, she said Mr Davis had not been using his mobile phone at the time of the accident. T144.46 This was the evidence:

“Q. And as he was driving along on this day of the accident, was he using the mobile phone?
A. Yes. T144.35

Q. And did you see him using the mobile phone while the truck was proceeding down the highway?
A. No. T144.39

Q. But was he using the mobile phone as he was driving along?
A. To my recollection he was on the phone when we pulled over. He could have been but I, too, I was in shock myself directly after the accident, so I couldn't be positive. T144.44

Q. Well I'm actually interested in the circumstances before the accident. Do you recall whether or not Dean was on the mobile phone before the accident?

A. No, he wasn't.”

That, as Mr Seton pointed out, seemed an odd thing to recall, given all the things she could not recall.

She was also adamant in an assertion that he had not had his indicator light on when passing Mr Bell. That is also an odd thing to recall, considering the things she did not recall.

(d) Although Mr Seton asked Mr Lear, Mrs Broughton, Mr Dee and Mr Bell, none recalled any conduct of the kind Ms Grey said Mr Davis had engaged in when pretending to pass Mr Bell, then moving back behind him.

(e) There were troubling aspects of her evidence about how well she could see Mr Bell while Mr Davis was playing the overtaking game. For example, she said she could see that Mr Bell was getting agitated, and had his head out of the vehicle window to see what Mr Davis was doing T149.16 ; this, she then corrected, to say, “Well, turning around, looking to see what he [Mr Davis] was doing.” T149.20 She said at one stage she could see him shaking his head in apparent dismay. T210.33;212.23 She said Mr Davis had engaged in the manoeuvre fifteen or twenty times for ten to fifteen minutes. T150.21

“be stuck with Dean for a week before I could get out of the caravan. I had black eyes every week.”

“Q. This vehicle that you say you saw the glimpse of, you said you thought it was a Commodore, but you agreed, I think, on the first day you gave evidence that you couldn’t be positive about it, it might have been another kind of car. Is that right?
A. That’s right. Are you having fun?

Q. Beg pardon?

A. Are you having fun?”

(iii) Mr Seton submitted her apparent characteristics of mischievousness and lack of a sense of intimidation, threw doubt on any suggestions she was or may have been intimidated by Mr Davis in the past, accounting for why she had made no earlier statement to investigators or police about Mr Davis’ involvement in the collision.

(v) However, while I accept Ms Grey could not be described as a shrinking violet, I am perfectly satisfied she could have been intimidated by Mr Davis. She began her relationship with him when she was only fifteen. At the time of the accident she was aged nineteen. While they were together, as he conceded, he was physically violent to her. He has a number of convictions for violence on others. I shall say more about him later, but having seen him give evidence over an extensive period, I can readily imagine someone living with him finding him extremely intimidating.

(g) (i) Mr Seton drew my attention to Ms Grey’s evidence that after the accident she had seen Mr Bell’s vehicle stop. T220.5 That, he put to me, was something I would find difficult to accept occurred, if Mr Davis passed his truck when the accident occurred and kept going, not stopping for ten to fifteen kilometres. The inference was that someone else must have told her that Mr Bell had stopped his truck on the top of the hill. Ms Grey did tell me she had spoken to Mr Bell’s brother, Elwin Bell Junior, some years ago, when he told her: “Dean was trying to blame it on Owen.” T137.34 She said this contact came about when she rang him after receiving an anonymous call asking her about the accident. She said she asked Mr Elwin Bell Junior if Mr Dee “had had to go to court or something.” T180 I infer it would have been possible for her to have received information from at least that source, sufficient to enable her to come to court to give false evidence. Further, she followed the show circuit around for some months after the accident, too, so may have had opportunities to discuss the accident with other Bell family members;

(ii) Mr Bell’s evidence to me (supported by others, such as Mr Lear and his daughter) was that his truck was parked on the side of the road some 500 to 1000 metres to the south of the accident site. So I agree with Mr Seton that it is hard to see how, if Mr Davis had kept going after the accident, he could have passed the truck so far ahead.

“Q. After Dean's truck pulled back in behind Owen's semitrailer and you then heard the impact you say, do you, that your truck travelled on for some distance and then pulled up by the side of the road?
A. Yes.

Q. How far approximately do you say that Dean drove on before he pulled over?
A. I think he drove for about another 10 to 15 minutes before he pulled over.

Q. When you pulled over was Owen Bell still in front of you?
A. No.

Q. What happened to Owen Bell, or his truck, do you remember?
A. We passed him. He was parked on the side of the road.

Q. So you, as you sit there now you can recall, can you, passing Owen Bell's truck parked by the side of the road after the accident?

A. Yes.

Q. So I take it therefore that after the impact your truck, Dean's truck, continued to travel behind the semitrailer, did it, until the semitrailer had pulled over and parked so that you could see the semitrailer having parked as you passed it?
A. Immediately after the accident?

Q. It doesn't matter when but the semitrailer and Dean's truck continued along the road after the accident, is that right?
A. Dean continued, immediately after the accident, immediately after I heard the noise Owen pulled over.

Q. And you saw him stop?
A. Yes.

Q. And you're able to say that because you recall Dean's truck passing the semitrailer stopped by the side of the road, is that your evidence?
A. Yes, I can - passing Owen, yes.

Q. You remember passing Owen's truck which was stopped by the side of the road, is that correct?
A. I can remember passing Owen, yes, I'm pretty sure it was his truck or could've been his Dad's or one of his brothers or something, yes.

“Could’ve been his Dad’s or one of his brothers or something, yes.”

41 Mr Seton put to me other discrepancies and apparent contradictions in her evidence:

(a) She said an investigator had told her ‘approximately the year’ and ‘about that time of year’ of the accident T179.26 , whereas she later said it had been ‘youse’ (meaning Mr Stitt) who had told her the date of the accident. However I do not see the two as inconsistent, given the early references seem not to have been specific.
(b) She told me she had last discussed the accident with Mr Davis ‘last week’, i.e., the week before the trial began T136.37 , whereas on the following day, she conceded she had spoken to him on the first day of the trial. However she told me the conversation on the first day of the trial had not been about the trial, but had been an attempt to talk to her son on the telephone. I do not see that as contradictory.

(c) Although she claimed things had ‘got better’ with Mr Davis after May 2003, when they separated, she asked police to help her by taking out an AVO. However it is not unusual for parents to have an improved relationship after separation, yet for there to be inflammatory episodes, such as when one of them acquires a new partner. Events such as these can lead to heated exchanges between parents, leading to applications for apprehended violence orders. So I do not see the apparent contradiction as carrying great weight.

(d) Mr Seton queried why neither Senior Constable Milton, nor Mr Lear had seen Mr Davis’ truck parked by the side of the road. But Ms Grey said they did not stop for ten to fifteen kilometres. There was no reason for Senior Constable Milton to have noticed the truck as he sped towards the accident site. Since the turn off to the Monaro Highway is just after the accident site and Ms Grey said that at one point they turned off, and Ms Grey was not specific about roads, it is possible Mr Davis, if Ms Grey was telling the truth, had turned off onto that road. Thus Mr Lear would not have passed him. Even if Mr Davis did not take that road, other roads in the area are connected with the Monaro Highway. Mr Davis may have turned off onto one of those.

(e) When Ms Grey was shown a photograph of Mr Bell’s semitrailer she agreed it showed the trailer part of his vehicle but denied the ride shown in the photograph was the ride he carried on the day of the accident. Mr Bell said that was the ride he carried that day. As will appear, I have difficulty with Mr Bell’s credibility. Mr Seton said one of them must be lying on this issue. But I think it conceivable Ms Grey was in error. It is a long time since the relevant events.

42 Mr Seton drew my attention to other matters which did not reflect well on her. For example, she admitted to having used illicit drugs. Further, she had been convicted of failing to abide by an apprehended violence order.

43 I have considered carefully the extensive and helpful submissions Mr Seton made about Ms Grey’s credit. My overall impression of Ms Grey however was that she was a compelling and truthful witness. She made concessions readily, such as that she might not have been observant about the stripes on the sides of Mr Davis’ caravan. She conceded to Mr Seton that the caravan might have had two tyres on the back, although her best recollection was that there had been none – just a bar. When apparently unsure of something, she would ask for a question to be repeated. It is to be recalled too that until interviewed by an investigator in early 2008 she had never been interviewed about the accident. By then seven years had gone by. It would not be surprising if her evidence contained some apparent contradictions or lacked precision.

44 Although it is true that her statement to an investigator implicating Mr Davis was given at about the time she was first involved in custody proceedings with Mr Davis, there is no evidence any investigator had ever previously visited her to get a statement. The evidence is that the police never spoke to her about the accident. That is not to say people have not tried to speak to her over the years. She said she had received a number of phone calls from people wanting to talk to her about the accident. But this appears to have been the first time anyone ever took the trouble to visit her to request a statement. Further, she told me this was the first time she learned people had been seriously injured: “When the private investigator first came round, I gathered that people must have been injured for it to be still going on and coming to me.” T288.34 There is no evidence she actually came forward to speak to police or insurance investigators about Mr Davis’ involvement, or that she initiated the interview with the investigator.

45 From evidence given by Mr Fowler, to which I shall refer in more detail later, it appears that having spoken to Mr Davis in 2002 in Canberra, police decided not to pursue him, and were satisfied with the alibi he gave them. That, I infer, would explain why they did not speak to Ms Grey. The visit from the investigator in May 2008, which co-incided with the custody issue, also occurred within days after the Court of Appeal had ordered a new trial. It is not surprising the Court of Appeal’s order prompted the insurer for the Dee/Bell interests to make renewed (or perhaps new) efforts to find and speak to her. There was evidence that insurer’s solicitors instructed loss assessors to go to see her at that time. There was no evidence they or any others had been to see her or had sent others to see her before the first trial.

46 On the important issue of the motive to lie, it is to be recalled that when the custody proceedings began, Ms Grey had recently lost a child. She was asked in cross-examination:

“And you must have been very, very disappointed when you learnt that [Mr Davis] was applying for custody of Jordan?”

She replied:

She said further:

Ms Grey told me, and I accept, that until that time Mr Davis had shown little interest in his son, and a positive side of his custody application was that it showed her he was interested in him. She did concede that his application had shaken and upset her and that she still wanted Jordan to live with her.

47 I formed the distinct impression from observing Ms Grey give her evidence over several days, that she did not wish to be involved in giving evidence. At one stage she said, “I wish I wasn’t even here.” Although that was an answer in cross-examination, that was my impression of her from the time she first began giving evidence.

48 It is of course not at all uncommon for men and women to do terrible things to people they purport to love, but when Mr Seton put to Ms Grey that she had been driven by enmity to give evidence against Mr Davis she said, “I still love the bloke…I feel sorry for the life he’s had…We have a child together. I could never be back with the man, but I still love him to a certain extent, yes.” T287.12 That, to me, had the ring of truth.

49 I was troubled by occasions when in cross-examination she said she was not convinced Mr Davis had in fact caused the accident. For example she said: “After thinking about it, I don’t think he actually caused the accident; if he wasn’t there and on the road it wouldn’t have happened; but after thinking about it, the car behind us was being impatient and shouldn’t have pulled out either, at the same time.” T291.44 However, when contemplating the significance of what she had told the investigator, and then what she told me, it would not be surprising, given her previous closeness to Mr Davis, if she had such thoughts.

50 Although these things can be feigned, there were moments in her evidence when what she said and the way she said it had all the appearance of spontaneity and truth. For example, when she was cross-examined to the effect she had first heard of the accident in February 2002 she said:

“No, that was not what I – I thought an accident had occurred when Dean—
Q. When it happened?
A. Yes, I wasn’t positive but from the noise, yes, an accident did occur, yes.” T219.22

There was also this evidence:

“I was pretty much in shock really. I didn’t know what – yeah, I just couldn’t get that noise out of my head.”

Those statements, to me had the ring of truth.

51 It is true no-one other than Ms Grey gave any evidence about Mr Davis’ engaging in the overtaking game. But it is possible that from the perspective of a passenger in the vehicle, the manoeuvre may have been far more obvious, especially if (as Ms Grey said occurred) accompanied by sound effects such as loud laughter from Mr Davis. That may be, too, I infer, why she said it would have been obvious to trucks behind when it may not in fact have been obvious. Further, it may have been that from the perspective of other drivers, the manoeuvre would have been seen as no more than an attempt to see what vehicles were coming from the opposite direction. For example, Mrs Broughton acknowledged she would not have recalled such an unremarkable manoeuvre. (This evidence came up after Mr Hodkinson and Mr Lear had given their evidence. Mr Lear was recalled for further cross-examination on that issue after it arose. Mr Hodkinson was not recalled. But it was not submitted the failure to recall him had any significance.)

Evidence Of Christine Broughton

52 On 10 and 11 February 2001 Mrs Broughton, with her children, stayed with friends in Narooma. On the afternoon of 11 February she and her children left Narooma to return to their home in Merimbula. She was driving a dark green Commodore, registered number WMD 973. She came up to a group of vehicles consisting of sideshow trucks. At a point near Bega, her side of the road became two, with an overtaking lane on the outside. (I infer this was on the Bega side of Stoney Creek Bridge.) She had not been paying close attention to the vehicles in the convoy in front of her. She overtook a semitrailer, then had to pass a small truck towing a caravan. A semi was in front of the small truck. (At the first trial she had said the vehicle combination she had overtaken had been a truck towing a caravan.) She said that once across Stoney Creek Bridge she found there were three trucks towing caravans. She passed one of those combinations, but it was the next, or second, combination, which pulled out in front of her. Asked whether she had seen it before Stoney Creek Bridge she said: “Not that I took any notice of, no.” T258.2

53 She moved into the overtaking lane and drove up the hill, following another car. As she did so she saw “a small truck towing a caravan” T263 come across from her left. The manoeuvre forced her onto the other side of the road, where her car collided with Mr Veigel’s car. She did not see indicators on on the caravan. She recalled that the caravan did not have a rear window. But she recalled it had a bar across the back. She recalled nothing written on the back. She recalled that the caravan had been all white. She saw no stripes on the side. She recalled no windows on the side. Shown exhibit ‘L’, (Mr Dee’s caravan), she said that it did not resemble the caravan. Nor did the truck in Exhibit ‘K’ (Mr Dee’s truck) resemble the truck towing the caravan.

54 Mrs Broughton’s statement to police became an exhibit, as did transcripts of part of the evidence she gave at the first trial. There was general consistency between her evidence at both trials and in her statement. In her statement she spoke of having seen “a lot of trucks towing caravans [at Cobargo]. They looked like trucks and caravans that you see at shows and carnivals.” Further, according to her statement, at one stage after leaving Cobargo and before the accident scene there were, ahead of her, in her estimate, about five trucks towing caravans.

55 Mrs Broughton was in court when Ms Grey gave her evidence. She recalled seeing no manoeuvre by any truck and caravan combination of the type Ms Grey said Mr Davis had engaged in: “I can’t recall prior seeing it pulling in and out mainly concentrating on the blue Ford that was in front of me because we kept on slowing down, speeding up, slowing down, so I was watching it, concentrating on it.” T272.5 But in any event, she conceded, in her experience as a driver she had noticed when in a slow line of traffic that vehicles do pull out to a point where the driver can see past a slow vehicle to see whether it is safe to pass and she would not have taken any interest had that manoeuvre occurred that day, and she would not have remembered it eight years later.

Mrs Broughton’s Credit

56 It is to be recalled that Mrs Broughton was injured, as were her children, in an accident which occurred over eight years ago. As the Court of Appeal found over a year ago, she was not in any way responsible for the accident. Mrs Broughton has not received any compensation. This dispute was essentially between two insurance companies and an entity financed in large part by insurers. So she could not be blamed if (as she appeared to be, at times) a little impatient with the litigation system. However, I had the clear impression she gave her evidence carefully and honestly. She conceded her recollection at the first trial would have been better than it was before me. There were some variations between the three versions of the accident she had given. That, I thought, was entirely consistent with the passing of so much time since the accident and the number of times she has had to tell the story about what, I consider, must have been a most frightening event for her, given especially that her children were with her in her car and she had been forced into the path of an oncoming car.

Evidence of Jamie Gary Dee

57 Mr Dee used to work for the Bell family. At the time of trial he had not worked with them for six or seven years. In 2001 he was working for them. (I was told he attended court in response to a subpoena.) He was at the Nowra Show in February 2001. He left the showground to go to Bega, driving Mr Owen Bell’s truck, and towing his caravan. On the way, he stopped to check the tyres on his vehicles. So did Mr Bell, who was travelling in a semi trailer behind him.

58 Mr Dee gave evidence that he recognized the vehicle in Exhibit ‘J’ as the one, with the same load, that Mr Bell drove that day, and said the truck and caravan in Exhibit ‘K’ were the truck and caravan he drove that day. Both were in the condition in those photographs in which they were on the day of the accident. The equipment shown on the back of the truck in Exhibit ‘K’ was the equipment he was carrying that day. As at the day of the accident he had driven that truck and towed that caravan for between four and five years. He did not recall any relevant registration numbers.

59 He recalled the accident in February 2001. At the time, Mr Bell had been travelling behind him. Mr Dee drove over Stoney Creek Bridge and then up a hill. At that time he had no visual contact with Mr Bell. Then Mr Bell called him on the CB radio and said, “I think my car’s been in an accident.” Mr Dee pulled up on the left hand side, at the top of the hill. After a while, Mr Bell arrived and stopped, got out, and spoke to him. They and Mr Bell’s then girlfriend then ran down the hill to the accident scene. When there, Mr Dee climbed into an injured man’s car and talked to him. (This, I infer, was Mr Veigel.) Later, VRA personnel arrived. Fifteen minutes or so after that, they left, returned to their vehicles, and drove to the Bega showground, where he stayed and worked for five days while the Bega show was on.

60 As Mr Dee sat in his truck at the top of the hill waiting for Mr Bell to arrive, he saw a small white truck towing a caravan drive past him in a southerly direction. He heard it first. Then he saw it. Its speed was eighty to ninety kilometres per hour, or perhaps a little slower. Though he knew Mr Davis and his girlfriend, and the fact that they lived in a caravan, and had a truck, he was unable to say whether the truck and caravan were Mr Davis’.

61 Mr Dee maintained that he always travelled ahead of Mr Bell between half a kilometre and a kilometre distant, though usually they had visual contact. Sometimes he would stop to let Mr Bell catch up.

62 When stopping at the top of the hill he pulled over to the left to ensure Mr Bell could park his semi alongside his vehicle. He could not recall if he and Mr Bell had stood together talking in front of the trucks before going down the hill. Nor could he recall a police car coming from the south at any such time.

63 Mr Dee denied when it was suggested to him that Mr Bell had suggested he, Mr Dee, had caused the accident. Mr Dee did not recall any car stopping at the rear of the semi, or seeing people appearing to write something, while there. He recalled no vehicles passing him in the overtaking lane on his way up the hill. He denied having any knowledge before returning to the accident scene, that someone had written down the registration number of the caravan.

64 Mr Seton contended that Mr Dee had been the driver of the offending vehicle. Mr Dee’s credit was the subject of an understandably intensive attack. In the course of the attack (in which Mr Seton was not the only attacker) a matter explored was whether after the accident Mr Dee had taken away the caravan and put its number plate on a different caravan. Given the evidence of Mr Lear and his daughter, and the evidence from most eye witnesses that the caravan in Exhibit K was not the one towed by the offending driver, such an exploration was understandable. It is important to set out in detail some of Mr Dee’s evidence on that issue:

( Cross-examination by Mr Seton T373-380 )
“Q. Was it the case that on that day you were towing a caravan that had a black and white number plate affixed to it?
A. It would have had a Victorian registration plate, yes.

Q. Was the number plate black and white?
A. Yes, I think it was.

Q. Was the number plate something that you didn't pay close attention to?
A. Yes, I never really took much attention to [of?] the number plate.

Q. The caravan that you say you were pulling, did it have any windows?
A. Yes.

Q. Where were the windows?
A. Sort of along the side, the back.

Q. How many were there along the side?
A. I couldn't possibly tell you. It had windows along both sides of the caravan.

Q. At the front, any windows?
A. No, it had windows at the back of the caravan.

Q. How many windows at the back?
A. Two or three.

Q. How were they, were they just alongside of each other or--
A. They were sort of one there and one there.

Q. Indicating one above the other?
A. Yes.

Q. What colour was it?
A. White.

Q. Did it have any stripes?
A. No.

Q. Approximately how long was it?
A. Maybe 25 foot.

Q. Was it the case that the caravan you were pulling that day in fact had no windows at the rear?
A. No, it had windows.

Q. Are you sure about that?
A. Yes.

Q. Was it the case that the caravan that you were pulling had some writing on the back?
A. Yes.

Q. Did the writing start with an "M"?
A. I don't think so, I can't remember.

Q. It had a word like "majesty" or "majestic" on the back?
A. No.

Q. Well six months later after this accident, you were up at Mt Isa, weren't you?
A. Yes.

Q. You were spoken to by the police, weren't you?
A. Yes.

Q. About this accident, yes?
A. Yes.

Q. That was the first time you had been spoken to by the police about this accident, wasn't it?
A. Yes.

Q. You understood, didn't you, that they were investigating who was responsible for this accident?
A. Yes.

Q. It was your understanding, wasn't it, that there had been a very serious injury or injuries suffered by the occupants of the car?
A. Yes.

Q. In short, it had been a serious accident, hadn't it?
A. Yes.

Q. I suppose you were keen to assist the police as best you could, is that right?
A. Yes.

Q. With any information you could provide them so as to ascertain who was responsible for the accident?
A. Yes.

Q. When you were interviewed, you were asked, weren't you, for a description of the caravan that you say you were towing?
A. Yes.

Q. You were asked by the police if you[r?] caravan that you were towing on the day of the accident had any windows in its rear, weren't you?
A. Yes.

Q. You told the police that the caravan had no windows in its rear, didn't you?
A. Yes, I did, but that was [an?]honest mistake.

Q. Well step by step you agree, don't you, that that was what you told the police, that it had no windows in the rear?
A. Yes.

Q. Prior to you telling them that, do you accept that they had asked you several other questions about the description of the caravan?
A. Possibly, yes.

Q. They, I suggest, asked you about the colour [of?] the van?
A. Yes.

Q. They asked you if there was anything in particular about the back of the caravan?
A. I can't remember.

Q. I suggest that they asked you, for example, how long the caravan was?
A. Possibly.

Q. They asked you how many axles the caravan had, didn't they?
A. Possibly.

Q. They asked you what colour it was?
A. A possibility, yes.

Q. I am reading from page 969 of a [the?] blue book, and I would read out the questions. I suggest this question was put to you, page 969, point E, question 74 of the record of interview:

"Q. Can you just describe the caravan to me, you said it's approximately maybe 25, 26 foot long"

Like, you accept what I'm reading out is accurately recorded in the record of interview.

"A. Yep.

Q. How many axles?
A. Yeah, it has three.

Q. What colour?
A. It's white.

Q. Any stripes?
A. No.

Q. Out the front of the caravan is there anything particular about it, like is there anything stored on it, do you know what I mean?
A. It has two gas bottles at the front, it normally has a clothesline that sits at the front side of the gas bottles.

Q. Okay, what about the rear of the truck, is there anything in particular about the back of the truck?
A. No, it only carries, it's sort of normal, it only has a ticket box on the back of the truck.

Q. What's a ticket box?
A. For the actual kids' ride.

Q. Okay, is it on the back of the caravan?:
A. No, it's on the back of the truck.

Q. On the back of the truck, all right?
A. Yes".

Over the page, question 84:

"Q. What about the caravan, is there anything particular about the back of the caravan, does it have like anything attached to the back of it, like any boxes or anything like that".

If I could just stop there. By that point in time it was obvious to you, wasn't it, that the police were wanting to know what your caravan looked like because they were trying to work out whether the caravan you were pulling was or wasn't involved in the accident?
A. Yes.

Q. And they were being quite particular, weren't they, about [the?] description of the truck and caravan?
A. Yes.

Q. You knew, didn't you, it was important to be as accurate as possible in giving these particulars of description?
A. Yes.

Q. In answer to the question I just read which was 84, you said:

"A. No, no we don't have anything attached to it.

"Q. Okay, what about windows, is there a window at the front of the caravan?
A. No, there's not.

Q. What about the back?
A. No".

Firstly, you accept today, don't you, that that was wrong?
A. Yes.

Q. You say that was a wrong answer, do you?
A. Yes.

Q. The caravan later on that day was photographed, wasn't it, by the police?
A. I think so, yes.

Q. Was it the situation that you were not expecting to be interviewed on this day?
A. I didn't even know the police were coming to interview us.

Q. Even today you have no trouble telling his Honour, do you, that the caravan had two windows at the rear, one above the other?
A. That's correct.

Q. Are you able to explain if it was wrong how you got that so wrong when you answered the question at Mt Isa?
A. An honest mistake.

Q. Was it, in fact, the truth Mr Dee, that the caravan you were towing that day in fact did not have any windows?
A. No.

Q. On the rear?
A. No.

Q. Was it the case that the caravan you were towing that day had a black and white number plate?
A. I'm not sure, but it had windows at the back of the caravan.

Q. Did you and Mr Bell at the top of the hill, before you went back down the hill, have a discussion about what had caused the accident?
A. No.

Q. Did you have any discussion at all about what you should or shouldn't say about the accident if you were asked by anyone?
A. No.

Q. And you've never had such a discussion with Mr Bell since that time when you got out of the truck?
A. No.

Q. Question 138, page 976 of the volume, Mr Dee you were asked these questions and answers:

"Q. Okay, did the police advise you how the accident was caused?
A. Well nobody sort of said anything to me, not even after the fellow was taken away.

Q. Yes.
A. They didn't say anything about the accident at all.

Q. Since that time have you found out how the accident was caused?
A. No, I haven't heard anything at all".

Was that the truth?
A. That's correct.

Q. This record of interview took place in August 2001, so six months approximately after the accident, you say that by that time that was the state of knowledge that you had about this accident, namely you'd found out nothing about what had caused the accident?
A. That's correct.

Q. And that remains, does it, your state of knowledge about this accident?
A. Yes.

Q. Question 141, you were then asked:

"Q. Okay, all right, a witness to the accident has said that a truck and a caravan pulled out into the overtaking lane which forced the lady's car onto the incorrect side of the road. Did you see that happen at all?
A. No, I didn't see any of that happen".

Over the page, question 142:

"Q. Have you heard that story before
A. No, I haven't heard no stories or anything".

You say that was the truth that you gave to the police?
A. Yes.

Q. And that remains, does it, the case?
A. Yes.

Q. That you have heard no stories or anything in relation to how the accident happened?
A. No.

Q. Question 145, you were asked this, "No one's told you that a truck and caravan was involved in the accident" and you answered, "No, nobody told me"?
A. That's correct.

Q. You stand by that answer, do you, that you gave the Mt Isa Police?
A. Yes.

Q. Mr Dee, can I take it that you understood that the police were trying to ascertain the identity of the truck and the driver that had caused this serious accident?
A. Yes.

Q. And you would have given them whatever information that you thought might have helped them to answer either of those two questions, namely the identity of the truck or the identity of the driver, is that correct?
A. Yes.
Q. You agree that you were unable to give them any information at all?
A. Yes.”

65 Mr Dee said he had noticed that the Bell group vehicles were registered in Victoria. He thought some of the number plates on the vehicles had been black and white, and some green and white: the trucks and caravans had always had number plates.

66 He was asked about how long he had spent at the accident site. He thought it had been twenty to twenty five minutes. He agreed he and Mr Bell might have stood at the front of the trucks on their return, and that a police car with sirens on might have passed them while they stood there.

67 Mr Dee said the registration number on the caravan as shown in Exhibit L was the same as was on it on the day, and that had police come to the Bega showground over the next five days, that caravan with that number plate would have been there for them to see. However he had no recollection of having seen police at the showground either the day of the accident or at all over the next several days.

68 He denied he had been travelling behind Mr Bell, rather than in front. He denied having pulled out and overtaken Mr Bell’s vehicle.

69 As will appear when I come to consider Mr Bell’s evidence, Mr Bell says the accident occurred when Mr Davis, who was driving a truck towing a caravan, passed his semi. He originally told police only that he had seen a small truck towing a caravan going up the hill after the accident, without mentioning Mr Davis’ involvement. His description of the vehicle was in some respects similar to the one Mr Dee gave police and to me. Thus the possibility Mr Dee and Mr Bell had got their heads together to give false information to police to throw suspicion onto someone else, and take it away from Mr Dee, was a matter Mr Seton and other counsel continued to explore in depth. The following evidence T393-394 was given in cross-examination concerning the van Mr Dee said he had seen go past while he was up on the top of the hill:

“Q. You told the police at Mount Isa, didn't you, in relation to the van - were asked this question, 202, blue page 984, you were being asked about this truck and caravan that passed you. You were asked, was it from Bells Amusements, you said, "No", that's question 201. Then 202:

"Q. Did it look like something that had come from another show? Was it another show van or just a person travelling?
A. Well, I'm not quite sure, I think it might have been personal, I just seen it that quick it just flew past".

When you said, "I think it might have been personal", did you mean by that, that you thought it was not a show van?
A. No.

Q. I asked you, "Was it another show van or just a person travelling?", when you said, "I think it might have been personal", you meant by that, didn't you, it was not a show van, it seemed to you to be just a person travelling?
A. Yes.

Q. You were then asked this, 203:

"Q. Okay, all right.
A. There was a lot of people travelling the roads, you got all horse people and everything.

Q. And prior to that truck and caravan going past, did you see any other cars go past?
A. No.

Q. Your car?
A. No".

Your memory of these events, Mr Dee, would be much better in August of 2001, than it is today?
A. Yes.

Q. From those answers and questions, it would certainly appear, wouldn't it, that in August 01, you were saying that, apart from the truck and van, no other vehicles had passed you?
A. Yes.

Q. Whereas today you say, do you, that other vehicles, in addition to the truck and van, did pass you?
A. No, I don't think so. I can't remember any one passing me.”

70 Mr Stitt drew Mr Dee’s attention to an apparent difference in the quality of the lettering of the words ‘Caution Long Load” in the photographs at pages 1043 and 1044 of Exhibit L as compared with the one at 1038 of Exhibit L. It was suggested to him that the three photographs were not all of the same caravan. He maintained they were, and that the writing had faded when the one at 1038 had been taken.

71 As will later appear, Mr Bell has made various claims over the years of having told other people at about the time of the accident that he had seen Mr Davis at the scene of the accident. One of the claims he made, (at the first trial) was that as he and his girlfriend and Mr Dee walked back up the hill after visiting the accident scene, he told his girlfriend and Mr Dee of Mr Davis’ involvement. Mr Dee told me however that Mr Bell never told him that day that he had seen Mr Davis there that day.

72 Evidence from Messrs Owen and Elwin Bell was that the registration plate on the caravan at the time was as shown in Exhibit L. There it appears to be green or blue on white. Mr Dee agreed that if the caravan on the day had had a black and white number plate attached, and if, six months later, it had a plate of a different colour, plates must have been changed. But he denied having changed them or of having seen them changed.

73 As will later appear, within days of the accident’s occurrence, police began receiving anonymous telephone calls suggesting they investigate the involvement of Mr Davis in the collision. Mr Dee denied he had made any such anonymous telephone calls. And he denied any knowledge of who had made them.

74 Mr Dee denied any proposition that he had been the cause of, or involved in, the collision. He denied having been a party to any arrangement to cover up any such involvement.

Credit of Mr Dee

75 I found Mr Dee to be an impressive, straightforward, witness. He readily made concessions. He told me of having stopped to check the loads and tyres after leaving Nowra. He conceded later he had based that evidence on practice rather than recollection. He conceded his recollection would have been better in 2001 as to what Mr Bell’s caravan looked like, than at the time of trial. He seemed to me to pay close attention to questions. He conceded there were things he might have forgotten.

76 He is obviously a man who when working for the Bell family, was close to and friendly with, Mr Owen Bell. So it could be a plausible scenario that if there were some sort of cover up, he and Mr Bell had been parties to it. There were matters in his evidence which caused me concern, such as:

(a) He originally said he thought the caravan had a black and white number plate on the day but later said it might have been green and white. T341.1;T453.24

(b) He initially said Mr Bell had “sort of” pulled up behind him on the top of the hill T356.50 whereas he later said he had pulled up beside him. T370.21

(c) There were differences in his evidence at the two trials as to whether he had been getting out of his truck or had been out, when the small truck and caravan had passed him. T387.34;T389.20

(d) In his evidence in chief he said he had not seen anything while waiting for Mr Bell at the top of the hill T357.4, with the evidence of the white truck and caravan coming out in cross-examination by Mr Seton. T386.26-32

(e) He told police at Mount Isa the caravan he had been pulling had had no rear windows, whereas he told me it did, although he must have been familiar enough with it when speaking to the police to have been able to say what it looked like. He insisted to me that had been an honest error on his part.

(f) There were differences in his evidence about whether or not he had seen Mr Davis’ caravan before the day of the accident. Originally he said he had not previously seen Mr Davis’ caravan T395.25 whereas he said later he had seen it. T413.34 However the first question T395.25 was: “You saw the caravan they lived in?” (speaking of Ms Grey and Mr Davis). In its context it is possible he interpreted that question as referring to the inside of the caravan.

(g) Although Mr Bell said Mr Dee assisted the driver in the Datsun by keeping his head back, Mr Dee denied he had touched him: (though this perhaps reflects more on Mr Bell than on Mr Dee).

(h) It does seem odd that the only discussion he told me he had with Mr Bell on the day or later concerning the accident’s cause was what Mr Bell said he had seen in his rear vision mirror. But if Mr Bell told me the truth about Mr Davis’ involvement and decided to keep that involvement from the police, he may not have been disposed to discuss matters of causation with Mr Dee;

(i) Mr Dee said he did not know his own description to police of a little white truck towing a small caravan fitted the description of Mr Davis’ truck and caravan. If he had been familiar with Mr Davis’ rig, that may have been surprising, especially knowing, as he did, that Mr Davis had been at Nowra. But if he was not especially familiar with Mr Davis’ rig, and Mr Bell did not tell him of Mr Davis’ involvement, that evidence is not necessarily remarkable. It was not suggested he was especially familiar with it.

(j) Mr Dee told me

T446.50 he did not discuss the accident with Mr and Mrs Hodgkin. I find that strange when Mr Hodgkin was his boss within the Bell organisation, and Mr and Mrs Hodgkin were travelling ahead of Mr Dee in the convoy, and they must have seen each other to talk to at the Bega showground over the next few days.

(k) Counsel for Mr Dee did not call Mr Bell’s then girlfriend, Melissa, or Mr and Mrs Hodgkin. I infer each of them could have given evidence about the caravan Mr Dee was towing when he arrived at the Bega showground on the afternoon of the 11^th February. I infer each of them could have given evidence about whether in fact Mr Dee arrived at the Bega showground on that or some later day, and as to what vehicles he was then driving or towing. There was no evidence any of them was not available to be called. I regard all three as having been witnesses one would normally have expected Messrs Dee and Elwin Bell to call. The failure to call Mr Bell’s former fiancée on this issue was not attacked by Mr Seton. I conclude however nothing Mr and Mrs Hodgkin could have said would have assisted their case: Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 at [72] per Ipp JA (Giles and McColl JJA agreeing);

(l) Obviously, Mr Dee had a motive to lie to police, to Judge Coorey, and to me, because his involvement in the accident would expose him to the possibility of prosecution for a serious criminal offence such as s.52A(3)(c) Crimes Act, which carries a maximum penalty of seven years imprisonment.

(l) Of course this is not a criminal case, but even where, as here, the burden of proof is the balance of probabilities, identification dangers are similar. As the above considerations show, there is reason to have disquiet about such evidence here.

The Submissions

141 Mr Black ultimately made no specific submission about the party I ought find was the driver of the offending vehicle. Mr Barry submitted that there was an overwhelming case against Mr Davis. Neither Mr Black nor Mr Barry sought to argue for a case against the Nominal Defendant.

142 Mr Stitt submitted that the evidence supports a finding that the owner and driver of the truck towing the caravan is known and identified: if Mr Lear and April Lear are accepted, the owner was Elwin Bell and its driver Jamie Dee. But if Owen Bell and Stacey Grey are accepted, the owner and driver was Mr Davis. He submitted that the court must decide which version is more probable.

143 Mr Stitt submitted that the evidence does not permit a finding that some other truck towing a caravan was present on the hill and involved in the accident. On no available version, he submitted, is there scope for a finding that an unidentified vehicle was causally involved in the accident’s occurrence. He referred me to Howell v The Nominal Defendant (1961-2) 108 CLR 552 for the proposition that s.34 Motor Accidents Compensation Act 1999 authorizes the enforcement of a claim against the Nominal Defendant only where the identity of the motor vehicle cannot be established, in the sense that the vehicle cannot be found: it has no application where a plaintiff is unable to decide which of two vehicles, both or one being known, caused the injury.

144 For Messrs Dee and Bell, Mr Maconachie submitted that I would find Mr Davis was the driver of the vehicle at fault. First, two witnesses, Ms Grey and Mr Bell, identified him as the driver at fault, and gave evidence of flight. Ms Grey’s evidence was exculpatory of Mr Dee: I should accept her as a credible witness, and, with reservations, I should accept significant parts of Mr Bell’s; further, I should accept Mr Dee. The assumption by Mr Lear and April Lear that the truck and caravan combination they saw at the top of the hill had been the offending combination was incorrect. They had made honest mistakes. Finally, the description of the offending truck and caravan given by witnesses, accords closely with the appearance of Mr Davis’ truck and caravan.

145 Mr Seton, for Mr Davis, submitted that if the evidence of Mr Bell and Ms Grey is rejected, (as he submitted it should be) there is no evidence to support a finding that Mr Davis’ truck and caravan caused the accident. Mr Seton referred to what he described as the dilemma: there is “compelling evidence from Mr Lear that identified a vehicle that is not the Dee caravan and…compelling evidence from Mr Lear and…his young daughter it is the vehicle that caused the accident and…not inconsistent with that is Mr Hodkinson’s. The dilemma is though you have Mr Dee’s evidence that he was in front of Mr Bell…[I]f you accept Mr Dee as a truthful witness then Mr Lear has made an error in his recalling of the number…[and] in the description of the van up the top. But it doesn’t mean that Mr Lear has given any evidence that identifies Mr Davis’ vehicle.” He urged me to reject Ms Grey, Mr Bell, Mr Dee and Mr E Bell, and to accept Mr Davis. He urged me not to draw adverse inferences against Mr Davis for not having called Mr Melonas. He submitted Mr Davis had given a plausible reason for leaving his caravan in Nowra, and that the documentary evidence from the Canada Bay Council supported his alibi case and was compellingly consistent with his version of events.

Consideration

146 If I accept Mr Seton’s submissions, it would follow that Ms Grey and Messrs Dee and Owen Bell perjured themselves and attempted to pervert the course of justice. If I were to accept Mr Maconachie’s submissions, it would follow that Mr Davis perjured himself. Whichever party I find was driving will, potentially, be exposed to a criminal prosecution for (at least) a breach of s.52A(3)(c) Crimes Act, 1900.

147 This is an unusual case. There is strong evidence pointing to the involvement of Mr Dee. And there is strong evidence pointing to the involvement of Mr Davis.

148 Mr Seton began his submission as follows:

In our submission there are two basic ways to approach the factual dispute. One is to go straight to the kernel of the issue of, do I believe the Bell/Grey evidence or do I believe the Davis evidence. Look at that and then at the same time keep in the background the other evidence of the various eye witnesses. The other way is to start in perhaps a more typical police way, in an investigative way. Go to the eye witnesses who saw the accident, take the information from them and then to work backwards.

149 I have considered the case from both perspectives. However, whichever of those routes is taken leads me to find (as I do) that on the balance of probabilities the offending vehicle was driven by Mr Davis, and that his negligent driving caused Mrs Broughton to cross to the other side of the road and collide with the oncoming car of Mr Veigel, causing the injuries to both plaintiffs. These are my reasons:

(a) What Eye Witnesses Said About the Caravan And Truck Driven By The Offending Driver:

There is a consistency of descriptions by eye witnesses of the offending vehicle, and there is some consistency of those descriptions with descriptions of the caravan and truck Mr Davis had at the time.

The following description of Mr Davis’ caravan and truck comes from evidence he gave or which came from police or registration authorities:

CARAVAN:

22 feet in length;
cream in colour;
registration number 001 QCM;
the word “Scenic” on front and back;
steel rack on back with two tyres attached;
two or three stripes on the side;
no rear windows but windows in front; and
trafficator assembly with tail lights, 10”x24”, horizontal mounting.

TRUCK :
White cabin;
white pantech on back;
registered in Queensland.

MR HODKINSON :
Whitish in colour;
not tall;
a distinctive reddy/orangy coloured stripe down the sides approximately half way between top and bottom;
seven to eight metres in length;
four wheels;
dual axle;
similar to old Department of Main Roads caravan;
an older style;
could not recall if it had rear windows;
similar colour to Mr Dee’s caravan but a different style;
more a production type caravan than Mr Dee’s, which he thought looked purpose built.

MR LEAR :
white/creamy;
fairly long;
dual axle;
no rear windows;
some writing on the back 21 centimetres high saying, “Majestic” or “Majesty”;
small turning indicator and tail light combined, rectangular in shape, smaller than the size of a tissue box;
small black and white number plate, no state designation, began with an ‘O’.

APRIL LEAR :
Bright colour such as yellow or white;
not really short;
a normal one.

STACEY GREY :
27 feet long;
dual axle;
cream colour;
dark brown stripe along the side with a lighter stripe below;
a tail light on each side at rear;
no rear window.

MRS BROUGHTON :
No rear window;
a bar across the back;
could recall something written on the back;
all white;
saw no stripes on the side;
recalled no windows on the side;

TRUCK :
MR HODKINSON :
Not a pantech
small, less than 5 tonnes;
white or light in colour;
vertical exhaust on left hand side, greyish, canvas type canopy rather than a metal structure, roughly level with the top of the cabin;
similar to pick up trucks common in the city;

MR LEAR :
Metal box on back;
creamy/white cabin;
could not recall vertical exhaust;
like a pantech but not a full pantech truck;
some sort of box at the back, made of metal.

(b) Despite variations in recollection, I consider the events would have been dramatic and shocking for witnesses.

(c) Every eye witness shown photographs of Mr Dee’s caravan said the caravan depicted in those photographs was not or did not look like the offending caravan;

(d) Despite an apparently thorough investigation by police and insurance investigators, there is no evidence Mr Dee or anyone else changed the number plate on his caravan, or that he passed off to the police or insurance investigators a caravan as the one he towed that day which was other than the one he towed that day;

(e) No caravan identified as having involvement in the accident had a stripe except Mr Davis’;

(f) Mr Dee said he saw a little white truck towing a small caravan pass him when he was at the top of the hill; that is consistent with Mr Davis’ description of his own truck and caravan;

(g) Although I have expressed some reservations about Mr Dee’s evidence, I accept his evidence that he was at the time of the accident ahead of Mr Bell, and that his vehicles were not involved in the accident;

(h) I accept Ms Grey’s evidence that Mr Davis was at the scene of the accident and involved in the accident;

(i) I accept Mr E Bell’s evidence that his son Owen lived at the time of the accident in the caravan Mr Dee said he was towing that day;

(j) I am satisfied (and so find) Mr Lear and April Lear, probably because they did not stop at the top of the hill, made an error when they:

(i) recorded the number of the caravan they saw parked at the top of the hill;
(ii) described the caravan they saw at the top of the hill as the offending caravan.

Their evidence is the only evidence connecting Mr Dee’s vehicle to the accident;

(k) Mr Lear was adamant the number plate on the offending caravan began with an ‘O’; Mr Davis’ caravan had a registration number beginning with an ‘O’;

(l) The fact that Mr Owen Bell and Mr Dee (as I find they did) returned to the scene of the accident for a period of at least twenty minutes;

(m) The fact that Mr Owen Bell, the caravan’s owner, while at the scene gave his personal details to Senior Constable Milton;

(n) The fact that Mr Owen Bell (as I find he did) owned a green Commodore at the time, and it was travelling behind him on its way from Nowra to Bega, and it was Mr Dee’s evidence (which I accept) that Mr Bell told him at the time of the accident he thought his car had just been involved in an accident, so they should stop and go back;

(o) Consistent with the above, but having minimal weight, is Mr Own Bell’s history to police of seeing the offending vehicle being a small truck towing a caravan, and his evidence to me Mr Davis was the driver, and his telling his father at the time of Mr Davis’ involvement;

(p) Mr Davis’ propensity, which I find he had, to drive his truck on the highway, whenever it suited him, and, as I am satisfied occurred when he gave evidence before me, to lie about his propensity to drive without a licence;

(q) The fact that (as I do) I reject Mr Davis’ evidence that he was not present at the time and place of the accident;

(r) Mr Davis’ motive in lying and fleeing, as I find he did, to escape detection and prosecution for significant offences;

(s) I have considered why Mr Bell gave no details to police about Mr Davis’ presence at the accident site. The evidence of Messrs Owen Bell, Elwin Bell, Jamie Dee, Dean Davis and Ms Grey persuades me there is an ethos among sideshow people which involves protecting each other from law enforcement authorities. Further, I have referred to the general difficulty in theorising about why people lie;

(t) In dealing with Ms Grey’s evidence I have referred to the fact that she gave evidence which both inculpated and exculpated Mr Davis. Mr Bell’s evidence was also both incriminatory and exculpatory of Mr Davis. I have taken account of that;

(u) As I have observed, there was no evidence which corroborated that of Ms Grey as to Mr Davis’ overtaking game. But I accept, having seen Mr Davis give evidence, that conduct of that kind on the road is quite within his capacity and inclination. He is a larrikin character, with little regard for rules, and a ready inclination to engage in disinhibited conduct of that type. The probability I think (and I so find) is that he was behind Mr Bell’s vehicle, and about three quarters of the way up the hill. He could see he might lose an opportunity to pass if he did not pass soon. I find he failed to check to see what cars were in the overtaking lane, and made an impulsive decision; he put on his indicator, but before ensuring it was safe to do so, just began to move into the adjoining lane.

(v) There is a consistency in the sequence of events, i.e. that Mr Dee, as he and Mr Bell both said, was travelling ahead of Mr Bell. None of the eye witnesses recalls seeing a truck and caravan fitting the description of Mr Dee’s rig going up the hill. But a number recall Mr Bell’s semi.

150 A matter Mr Seton spent a great deal of time exploring was the sighting, at the top of the hill, of two men standing near two trucks, apparently talking. In the end I am not persuaded they were Mr Bell and Mr Dee. They could have been anyone. That evidence is not evidence I find helpful in any way in resolving any issue. Mr Seton submitted Mr Bell had been one of those men: that he knew someone had taken the caravan’s number, so must have seen Mr Lear at the top of the hill recording it. But Mr Bell said his then girlfriend or fiancée had learned at the accident site such a thing had occurred. I consider it more likely Mr Bell learnt of this at the site and not at the top of the hill.

151 There was also exploration and speculation in cross-examination and in addresses, about the series of anonymous telephone calls to police suggesting the involvement of Mr Davis. I do not see it as necessary for me to make any finding as to who made the calls. In any event I have not had regard for their contents in any way except as part of the history given by Mr Fowler when describing the steps taken by police to investigate the collision.

152 Although there were different accounts by eye witnesses about the number of trucks with caravans in the vicinity of the accident site at the time of the accident, I do not regard that as a material matter or necessary for me to resolve. That is precisely the type of issue about which versions might differ in the circumstances of a dramatic incident.

153 Finally, it is necessary to say something about the way in which the collision was caused. In one version given by Mr Bell, there was this evidence:

“Q. And at the time I think you saw it going across the wrong side of the road, the vehicle that we [was?] being driven by Dean Davis was partly in the overtaking lane and partly on the inside lane?
A. No. He was overtaking, yeah, like, he was coming out from behind me.”

154 Ms Grey said of the overtaking game and its relationship to the accident:

“As he was mucking around he – like the last time he done it before the accident, he must have seen the car coming and he’s – I know he really quickly pulled back in because the caravan jerked as we pulled in.” T152.25

155 She was asked whether she had seen the car behind Mr Davis’ truck and van and she said, “Yes, I did in the rear vision mirror. In my mind I’ve got a glimpse of an either grey or blue commodore.” Then, she said, the accident occurred ‘closer to the pantech on the side.’ [i.e. next to the tray of the truck]: The ‘crash’ occurred she said, almost at the instant he moved back to the left. I accept her evidence that she later asked him to stop but that he said he could not because he was on his Ls and that the police would be everywhere. I find she was in error when saying the Commodore’s colour was blue or grey.

Flight Evidence

156 As I have observed, I have relied in part, for my finding that Mr Davis was liable for causing the collision, on his subsequent flight. The evidence that Mr Davis immediately after the collision, as I find, changed course and headed for Canberra, was put to me by Mr Barry and others as evidence of flight. Thus, it was said, there was corroboration, since Mr Davis had a guilty mind.

157 When a jury in a criminal trial is asked to attribute consciousness of guilt to post offence conduct, the judge must direct the jury to consider alternative explanations for the conduct which would not lead to the inference: R v Edwards (1992) 173 CLR 653; R v Renzella [1997] V.R. 88.

158 When Mr Davis changed course and went to Canberra, his flight may have been simply from panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence: Edwards v The Queen (1993) 178 CLR 193 at 211. But accepting, as I do, that he made the statements to Ms Grey about the need to get away because he was on Ls and police would be everywhere, I find his departure was probably due to his knowledge that he had just been responsible for an accident, and, especially if caught by the police without a licence, would be in serious trouble with the criminal law.

Collision Findings

159 I make the following findings of fact:

(a) the accident occurred at approximately 2.10pm on 11 February 2001;

(b) the accident occurred on the Princes Highway, about 10km north of Bega, just south of Stoney Creek Bridge;

(c) the Princes Highway crossed Stoney Creek Bridge and comprised one lane in each direction at that point;

(d) Mrs Broughton was driving a Holden Commodore registered number WMD 973;

(e) Mr Veigel was driving a Datsun 200B stationwagon registered number VSJ 755;

(f) the accident occurred when the front of Mrs Broughton’s vehicle collided with the front of Mr Veigel’s vehicle at high speed;

(g) At the time of the accident Mrs Broughton was travelling in a generally southerly direction;

(h) At the time of the accident Mr Veigel was travelling in a generally northerly direction;

(i) approximately 25 metres beyond Stoney Creek Bridge, the Princes Highway widened into an overtaking lane for vehicles travelling south, as the highway ascended a hill;

(j) the highway deviated slightly to the right and then curved to the left for southbound traffic;

(k) at the point where the accident occurred, there were two lanes for southbound traffic and one lane for northbound traffic;

(l) the northbound and southbound lanes were separated by a double white unbroken line;

(m) the accident took place on Mrs Broughton’s incorrect side of the road;

(n) the point of impact between the two vehicles occurred 2-3 metres into the northbound lane;

(o) skid marks caused by Mr Veigel’s vehicle were seen by police who visited the scene soon after, in a straight line wholly within his lane, leading to the point of impact;

(p) at rest, Mr Veigel’s vehicle was raised on the guard rail on its near side;

(q) prior to the time when the traffic which was travelling south reached Stoney Creek Bridge, it had banked up in a long convoy behind Mr Bell’s slow travelling truck, a Kenworth semi-trailer;

(r) Mr Bell’s vehicle consisted of a prime-mover of approximately 18 feet in length, to which was affixed a semi-trailer of approximately 32 feet in length;

(s) on the tray of the semi-trailer was carried an amusement ride called the “Cha Cha”;

(t) the prime-mover and the trailer were owned by the Bell Amusements Group;

(u) behind the prime-mover were a number of other vehicles including a truck towing a caravan owned and driven by Mr Davis, a Landcruiser, a green Commodore (Mrs Broughton) and a Holden Commodore station wagon (Mr Lear);

(v) Mr Lear was travelling with his daughter, April Lear, directly behind Mrs Broughton’s vehicle;

(w) the truck towing the caravan was registered number 497 EZM and the caravan was registered number 001 QCM;

(x) on 11 February 2001, Mr Dee was driving motor vehicle registration number FGZ-993, towing caravan having registration number F34-209 in a southerly direction along the Princes Highway in New South Wales;

(y) on 11 February 2001, motor vehicle registered number FGZ-993 was owned by Mr Elwin Bell;

(z) on 11 February 2001, caravan registered number F34-209 was owned by Mr Owen Bell;

(aa) at all relevant times prior to the collision, there was only one truck towing a caravan behind the vehicle being driven by Mr Bell;

(ab) the truck towing the caravan which was involved in the accident, was:

(i) a single axle rigid truck which seemed old;

(ii) like a Pantech;

(iii) a light colour with a vertical exhaust pipe near the cabin on the passenger’s side;

(iv) flat-fronted, like a small delivery truck;

(ac) the caravan was:

(i) white, long, dual axle without a rear window;

(ii) large, white in colour with a stripe or stripes down each side;

(iii) with dual wheels, an older style caravan;

(iv) fitted with a horizontal light mount which was rectangular;

(ad) as the Princes Highway widened into an overtaking lane, the following events occurred:

(i) Mr Bell pulled into or remained in the left hand or slow lane in his Kenworth semi-trailer;

(ii) at this time he was travelling at a speed of approximately 70kph but his speed was dropping as he climbed the hill and as he went down through the gears of his truck;

(iii) at this point, the vehicles behind the truck and caravan began to overtake the semi-trailer;

(iv) the green Commodore driven by Mrs Broughton crossed into the right hand overtaking lane;

(v) Mrs Broughton’s vehicle began accelerating up the overtaking lane;

(vi) at a point part way up the hill the truck towing the caravan pulled into the overtaking lane to overtake the slower semi-trailer;

(vii) at some point during this manoeuvre, and as a result of it, Mrs Broughton steered her car to the right across the double unbroken lines and into the single lane for traffic going north, where she collided head-on with Mr Veigel’s car;

(ae) the collision occurred next to the Kenworth semi-trailer at some point which was still visible to Mr Owen Bell in his rear vision mirror;

(af ) the overtaking truck and caravan and Mr Bell’s semi-trailer continued up the hill;

(ag) Mr Bell directed Mr Dee to pull up, as he thought that his car was the green Commodore involved in the accident;

(ah) Mr Dee and Mr Bell pulled their vehicles over on the eastern side of the roadway at a point south of where the accident occurred;

(ai) the two trucks were then parked in that area off the highway;

(aj) Mr Lear was about 100 metres behind Mrs Broughton at the time of impact. He then stopped for a short time to provide assistance and his details to Mrs Broughton or her son before returning to his vehicle and continuing his journey south with his daughter;

(ak) upon reaching the top of the hill, Mr Lear and Miss Lear saw a truck and a caravan which they each believed had been involved in the accident, parked on the eastern side of the roadway;

(al) Mr Lear read out from the back of the caravan and Miss Lear recorded on a piece of paper, the registration number of the caravan which he believed was involved in the accident; Mr Lear did not stop his car to make that record; he merely slowed down;

(am) that registration number was later provided by Mr Lear to police;

(an) the vehicles pulled over on the side of the road and observed by Mr Lear and Miss Lear were the vehicles driven by Mr Jamie Dee and Mr Bell;

(ao) Mr Lear and Miss Lear was each mistaken both in the number they recorded and as to the caravan’s having been the one which had caused the accident;

(ap) Mr Hodkinson was driving a red Falcon utility along the Princes Highway at the time of the accident;

(aq) there was a white vehicle in front of him which was Mr Lear’s vehicle;

(ar) Mr Hodkinson saw a green vehicle in front of Mr Lear’s vehicle which was Mrs Broughton’s vehicle;

(as) Mr Hodkinson observed a truck and caravan in front of the green vehicle which was the subject truck and caravan.

(at) the subject truck and caravan were owned, driven and towed by Mr Davis;

(au) the collision between Mrs Broughton’s vehicle and Mr Veigel’s vehicle was caused by the negligence of Mr Davis.

160 It follows that the proceedings against Messrs Dee and Bell, and the Nominal Defendant, should be dismissed, and that judgment should be entered for each of Mr Veigel and Mrs Broughton, against Mr Davis.

161 I propose to make the following orders, but will defer making them until I hear submissions:

8279/02

1082/04

162 There are outstanding costs issues from the previous trial.

163 I direct counsel for each plaintiff to serve written submissions, with draft short minutes of all orders it is submitted I should make, including orders dealing with costs issues outstanding from the first trial, by 5pm on 26 June 2009. Counsel for each defendant is to respond by 5pm on 10 July 2009. Counsel for each plaintiff may respond by 5pm on 17 July 2009. Copies of all submissions and draft orders are to be provided to my associate by 5pm on 17 July 2009.

164 Counsel may speak to their written submissions, and for that purpose I adjourn the matter to 9.30 am on 24 July 2009.

oOo

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Citations

John Veigel v Christine Broughton; Christine Broughton v Nominal Defendant [2009] NSWDC 397

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

2

Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135

Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75

CITATION:	John Veigel v Christine Broughton & Ors; Christine Broughton v Nominal Defendant & Ors [2009] NSWDC 397
HEARING DATE(S):	27 April to 1 May, 5 to 8 May, 11 to 15 May 2009
JUDGMENT DATE:	19 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Walmsley SC DCJ
CATCHWORDS:	TORT – Negligence – Causation - Motor Vehicle Accident - Retrial - Failure of Party to Call Witness – Significance of Lies – Dangers of Identification Evidence Concerning Motor Vehicle – Preconditions for Finding Against Nominal Defendant – Significance of Flight of Alleged Driver After Collision
LEGISLATION CITED:	Evidence Act 1995 Motor Accidents Compensation Act 1999
CASES CITED:	Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 R v Jovanovic (1997) 42 NSWLR 520 R v DBG [2002] NSWCCA 328 R v Clout (1995) 41 NSWLR 312 Howell v The Nominal Defendant (1961-2) 108 CLR 552 R v Edwards (1992) 173 CLR 653 R v Renzella [1997] V.R. 88 Edwards v The Queen (1993) 178 CLR 193
PARTIES:	John Veigel v Christine Broughton & Ors Plaintiff - John Veigel First Defendant - Christine Broughton Second Defendant - The Nominal Defendant Third Defendant - Mr Elwin Bell Fourth Defendant - Mr Jamie Gary Dee Fifth Defendant - Mr Dean Davis Christine Broughton v Nominal Defendant & Ors Plaintiff - Christine Broughton First Defendant - The Nominal Defendant Second Defendant - Mr Elwin Bell Third Defendant - Mr Jamie Gary Dee Fourth Defendant - Mr Dean Davis
FILE NUMBER(S):	8279/2002; 1082/2004
COUNSEL:	John Veigel v Christine Broughton & Ors Plaintiff - Mr A J Black Second Defendant - Mr R Stitt QC and Mr D Wilson Third and Fourth Defendants - Mr J Maconachie QC and Mr C L Thompson Fifth Defendant - Mr R W Seton SC and Mr P Carr Christine Broughton v Nominal Defendant & Ors Plaintiff - Mr C T Barry QC and Mr P Frame First Defendant - Mr R Stitt QC and Mr D Wilson Second and Third Defendants - Mr J Maconachie QC and Mr C Thompson Fourth Defendant - Mr R W Seton SC and Mr P Carr
SOLICITORS:	John Veigel v Christine Broughton & Ors Plaintiff - Stacks/Goudkamp Second Defendant - Sparke Helmore Lawyers Third and Fourth Defendants - Carroll & O’Dea Lawyers Fifth Defendant - Curwoods Lawyers Christine Broughton v Nominal Defendant & Ors Plaintiff - Keddies Lawyers First Defendant - Sparke Helmore Lawyers Second and Third Defendants - Carroll & O’Dea Lawyers Fourth Defendant - Curwoods Lawyers