Jones v NRMA Insurance Limited
[2013] NSWDC 82
•07 June 2013
District Court
New South Wales
Medium Neutral Citation: Jones v NRMA Insurance Limited [2013] NSWDC 82 Hearing dates: 6, 7, 8 & 9 May 2013 Decision date: 07 June 2013 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $1,800,000;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - motor vehicle accident - vehicle drove off the highway in darkness - off-road collision with tree in bushland after vehicle travelled down roadside embankment - plaintiff passenger seriously injured - driver of vehicle also injured - driver shown to have blood alcohol level measured at 0.157mg/100ml - whether defendant has established contributory negligence on part of plaintiff passenger who was asleep - consideration of relevant statutory provisions; JURISDICTION - lex loci delicti - application of s 48 and s 49 of Queensland Civil Liability Act 2003 to circumstances; DAMAGES - damages agreed by parties at $1,800,000 Legislation Cited: Evidence Act 1995, s 128, s 140
NSW Motor Accidents Compensation Act 1999, s 113
Queensland Civil Liability Act 2003, s 48 and s 49Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352Category: Principal judgment Parties: Bruce Ian Jones (Plaintiff)
NRMA Insurance Limited (Defendant)Representation: Mr D Toomey (Plaintiff)
Mr W Fitzsimmons (Defendant)
McLaughlin Riordan (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2012/68377 Publication restriction: None
Judgment
Table of Contents
Nature of case and factual background
[1] - [3]
Issues
[4] - [9]
Evidence overview
[10] - [13]
Legislation
[14] - [16]
Facts
[17] - [94]
Plaintiff's background circumstances
[18] - [20]
Credit issue concerning the plaintiff
[21] - [26]
Journey to the accident scene
[27] - [47]
Accident description
[48]
Immediate aftermath of the accident
[49] - [50]
Location of accident scene by rescuers
[51] - [52]
Ambulance attendance at the scene
[53] - [61]
Relevant events recorded in hospital notes
[62] - [67]
Statements obtained by investigating police
[68] - [82]
Other police investigations of the accident
[83] - [94]
Expert evidence
[95] - [107]
Findings concerning Mr Hodgson's level of intoxication
[108] - [112]
Findings on alleged contributory negligence
[113] - [134]
Seatbelt
[116]
Awareness of alcohol consumption
[117] - [131]
Impaired judgment
[132] - [133]
Failure to take reasonable care
[134]
Disposition
[135]
Costs
[136]
Orders
[137]
Nature of case and factual background
At an unknown time during the hours of darkness, in the early hours of the morning of Tuesday 14 July 2009, the plaintiff, Mr Bruce Jones, was a front seat passenger who was asleep in his motor vehicle when it was being driven by his friend, Mr Phillip Hodgson, in a generally northerly direction along the Bruce Highway at Benaraby, near Calliope, in the State of Queensland.
In those events, at a time that could not be reasonably defined by evidence, the vehicle left the roadway, travelled down an embankment on the left side of the highway, through bushland, and then collided with a tree, where it came to a stop. In that accident, the plaintiff, who was not restrained by a seatbelt, and whose seat was reclined to a sleeping position, sustained a head injury when his head struck the windscreen. The plaintiff also suffered serious orthopaedic and related soft tissue injuries, which ultimately resulted in the surgical amputation of his left leg below the knee, and the amputation of his left arm at the shoulder. Before the accident, the plaintiff already had a below knee amputation of his right leg following an accident 2 years earlier. These proceedings are governed by the provisions of the Queensland Civil Liability Act 2003 ["QCL Act"].
Subsequently, in October 2010, before the institution of these proceedings, Mr Hodgson died of causes unrelated to the subject accident. As a result, the CTP insurer of the vehicle, NRMA Insurance Ltd, has been joined as the defendant to the proceedings pursuant to s 113(1) of the NSW Motor Accidents Compensation Act 1999.
Issues
At the commencement of the hearing, the parties requested some time to try and narrow the issues, with some success. It was subsequently agreed that the plaintiff should succeed on the issue of the negligence of the deceased driver, and that there should be an agreed assessment of damages in the plaintiff's favour in the amount of $1,800,000 plus costs.
Apart from an issue concerning the credibility of the plaintiff's testimony, which was the subject of serious challenge made by the defendant, the only remaining substantive issue calling for decision in the case was whether the plaintiff's damages should be reduced on account of his alleged contributory negligence. A number of subsidiary issues arose related to that substantive issue.
Essentially, the onus lay with the defendant to show that in the circumstances, the plaintiff was aware, or ought to reasonably have been aware, that Mr Hodgson was intoxicated at the time of the accident.
If either of those propositions is proven, a rebuttable statutory presumption of contributory negligence arises on the part of the plaintiff, to which a prescribed regime of discount would apply to the plaintiff's entitlement to damages. If the presumption of contributory negligence is sustained, a finding of a minimum of 25 per cent for contributory negligence is mandated: s 48(4) of the QCL Act. If it can be shown that at the relevant time, the driver's intoxication was at the level of 150mg or more of alcohol in 100ml of blood, the minimum prescribed contributory negligence finding rises to a mandatory 50 per cent: s 49(2) of the QCL Act.
At 8.35am on the morning of the accident, a sample taken of Mr Hodgson's blood returned a forensic analysis of 157mg of alcohol in 100ml of blood ["0.157"]. Expert pharmacological evidence was given to the effect that, relevant to this case, an average person metabolises or eliminates alcohol from the body at the rate of 0.015mg per hour. This is in the context of a range of 0.010 to 0.025mg per hour. The probable time of the occurrence of the subject accident was therefore a material matter for consideration.
On behalf of the defendant, it was fairly conceded that if the defendant could not show that the plaintiff either knew or ought to have known of Mr Hodgson's intoxication with alcohol whilst driving, or that the plaintiff had slept during an agreed rest break near Gympie, the defence of contributory negligence must fail.
Evidence overview
The plaintiff was the only witness to give oral evidence in his case. The defendant called oral evidence from Senior Constable Foley, the Queensland police officer who took a key role in the investigation of the accident. The defendant also called oral evidence (by telephone) from Associate Professor AF Moynhan, an expert pharmacologist, on the issue of the significance of the driver's blood alcohol test result.
The documentary exhibits tendered in the plaintiff's case were:
"A" Copy of plaintiff's driver's licence for signature comparison;
"B" Copy Notice of Accident Claim Form;
"C" Map of the Queensland road system;
"D" Copy Clinical and Progress notes of Royal Brisbane and Womens Hospital for the dates 16 - 20 September 2009, relating to the plaintiff.
The documentary exhibits tendered in the defendant's case were:
"1" Liability Tender Bundle, Part 1, Tabs 1 - 20;
"2" Liability Tender Bundle, Part 2, Tabs 1 - 10;
"3" Printouts of maps of the Brisbane to Rockhampton road route;
"4" Statement of Andrew Ross McLaren, dated 13 April 2012, relating to a mechanical inspection of the vehicle in question;
"5" Quantum Bundle.
Reference to documents within those bundles will be made where it becomes relevant to do so in the course of these reasons.
Legislation
The relevant provisions of the QCL Act are sections 48 and 49.
Section 48 of the QCL Act provides:
48 Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated
(1) This section applies to a person who suffered harm (plaintiff) who -:
(a) was at least 16 years at the time of the breach of duty giving rise to the harm; and
(b) relied on the care and skill of a person who was intoxicated at the time of the breach of duty (defendant); and
(c) was aware, or ought reasonably to have been aware, that the defendant was intoxicated.
(2) If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed.
(3) The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that -
(a) the defendant's intoxication did not contribute to the breach of duty; or
(b) the plaintiff could not reasonably be expected to have avoided relying on the defendant's care and skill.
(4) Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.
(5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.
Section 49 of the QCL Act provides:
49 Additional presumption for motor vehicle accident
(1) This section applies to a plaintiff and defendant mentioned in section 48.
(2) If -
(a) the breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident; and
(b) the plaintiff was a passenger in the motor vehicle; and
(c) the motor vehicle was driven by the defendant; and
(d) either -
(i) the concentration of alcohol in the defendant's blood was 150mg or more of alcohol in 100mL of blood; or
(ii) the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;
the minimum reduction prescribed by section 48(4) is increased to 50%.
(3) The plaintiff is taken, for this section, to rely on the care and skill of the defendant.
Facts
What follows in the ensuing paragraphs, unless otherwise stated, are my findings concerning the salient facts.
Plaintiff's background circumstances
The plaintiff was born in 1954. At the time of the accident, he was aged 55 years. He was divorced and he presently lives with other family members. He has 2 adult children. The plaintiff had a solid industrial background of employment in electrical work in the technical field of telecommunications and voice data communications.
In 1969 the plaintiff had left high school aged 15 years. He completed an electrical trades apprenticeship and he then pursued continuous full time employment with a series of employers in that trade. Ultimately, he obtained qualifications as a telephone technician and worked in a senior capacity in that job. In April 2007, he was involved in a motor vehicle accident which resulted in a below knee amputation of his right leg. He underwent rehabilitation, he was fitted with a lower leg prosthesis, and he successfully returned to work. He later left the employment of Telecom and worked in a number of similar contractual positions until 2008, when the availability of work receded.
The plaintiff then went onto unemployment benefits for a number of months. During that time, his life-long friend from his school days, Mr Hodgson, took retirement benefits from his own employment. He and the plaintiff then decided to spend some time fishing in Northern Australia, which is why they embarked upon the trip in question.
Credit issue concerning the plaintiff
In the course of cross-examination in these proceedings, counsel for the defendant, attacked the veracity of the evidence given by the plaintiff and submitted that the plaintiff should not be accepted on his oath on contested matters of fact.
That attack was founded upon events described by the plaintiff in his evidence in chief, in which he explained that in the lead-up to the fishing trip that he and Mr Hodgson had planned, he had made some false representations to the Department of Social Security, and to medical examiners, as to his condition of health. This occurred in his pursuit of an application in which he was seeking to convert his unemployment benefits into a Disability Support Pension. The perceived benefit for the plaintiff to do so appeared to be the potential alleviation of the more onerous reporting burden that goes with receiving unemployment benefits, including the obligation to be seen to be seeking work.
In repeated attacks in cross-examination on those matters, the plaintiff openly and candidly admitted his earlier wrongdoing in that regard. He admitted telling lies in the course of that conduct in seeking to alter the basis of payment of social security benefits to him. My impression of his evidence in that regard was that he was genuinely sorry and embarrassed at having told lies in the course of those events. The representations he made in that regard had in any event failed to achieve their objective. In the course of that evidence, the plaintiff was granted a certificate under s 128 of the Evidence Act 1995.
On any reasonable view, the cited conduct of the plaintiff was without doubt discreditable. As a result, for the purpose of submissions, the defendant took the position that the plaintiff should not be believed on his oath on matters in issue in this case without the availability of independent and objective evidence to corroborate the account of key events given by the plaintiff. In my view, that position taken by the defendant was overly simplistic for the circumstances, especially where the defendant carried the onus of proof on the critical matter in issue, namely, the defence of alleged contributory negligence.
In that regard, the defendant sought to build a case of contributory negligence from the evidence of the plaintiff, and in doing so, it submitted there should be a rejection of key aspects of the plaintiff's evidence. Instead of the blanket rejection approach to the plaintiff's evidence, as was submitted by the defendant, in arriving at my findings of fact, I propose to assess the disputed facts on an issue by issue basis, in the context in which the issues arise for decision.
To sustain an adverse credit finding that, on the balance of probabilities, the plaintiff should not be accepted on his oath in these proceedings, as was submitted by the defendant, requires proof of satisfaction commensurate with the gravity of the allegation so made: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
Journey to accident scene
After the plaintiff and Mr Hodgson decided to embark on a fishing trip, they left Sydney on 11 July 2009 to drive to North Queensland. The vehicle they drove was a Toyota Land Cruiser which they jointly owned. They towed a new trailer which belonged to the plaintiff. Mr Hodgson was the driver of the vehicle at all times. This was because since 2007, the plaintiff had suffered a below knee amputation from an earlier accident, and he wore a prosthesis on the stump of his right lower leg.
The route of the journey they undertook was identified in general terms in the evidence of the plaintiff. That description did not include identification of precise distances at or between significant places or landmarks along their journey. Likewise, the plaintiff's description of the journey was not accompanied by any precise or reliable indication of the times of commencement or completion of various segments of the journey, nor the precise means by which the duration of travel over the various segments could be reasonably estimated, allowing for variables as to speed, road conditions and such matters. The journey in question can be summarised as comprising the following five segments.
First, the pair drove north from Sydney to a property at Lawrence, near Grafton, where they camped for 2 nights on a property where the plaintiff's ex-wife was living, and there they spent some time fishing in the Clarence River.
Secondly, at an unknown time, they set off from Lawrence on the morning of Monday 13 July 2009, aiming to eventually make their way to Townsville, but on the way they made a detour with the aim of visiting some friends of Mr Hodgson located at Stradbroke Island. Whilst waiting for a ferry transfer to that island, and in the course of that journey, they had lunch at an unknown time. This comprised sandwiches and the pair each consumed two 375ml stubbies of full strength beer. Whilst they were waiting at the port for the ferry, they changed their plans and decided not to travel to Stradbroke Island.
Thirdly, they then decided to drive on to Brisbane, with the aim of driving towards the Sunshine Motorway turnoff, and to then drive on further north to the Bruce Highway. The segment of the journey to Brisbane was described as having "probably" occurred in the late afternoon and whilst it was still light. The portion of that segment of the journey through Brisbane involved some delay due to the prevailing heavy traffic conditions. The plaintiff estimated that it took a "few hours" to travel from the port at Stradbroke Island, to the unstated time of their arrival at the Sunshine Motorway intersection: T12.39. On that journey, and by the time they were driving through Brisbane, it had become dark: T12.16.
The fourth segment of the journey was to travel from that Sunshine Motorway intersection, through a left turn, to then continue north along the Bruce Highway to a point some distance north of Gympie. They reached the Sunshine Motorway intersection in darkness. On this segment of the journey the plaintiff had fallen asleep in the front passenger seat of the vehicle whilst the defendant was driving. During the course of that segment of the journey, at some unknown time, the plaintiff woke from his sleep whilst the vehicle was being driven by Mr Hodgson.
It was at this time that the plaintiff had a conversation with Mr Hodgson in which he formed the view that Mr Hodgson had become fatigued. At that time, the plaintiff had briefly argued or remonstrated with Mr Hodgson, and in that interchange, he had persuaded Mr Hodgson to stop the vehicle in order to have a rest break from driving at that time.
The evidence of the plaintiff on this topic was at T13.34 to T13.47, and was in the following terms:
"Q. Doing the best you can as you sit here today, would you tell his Honour what you said and what Mr Hodgson said in that conversation?
A. Yeah, when I, when I woke up, I said, you know, just, "Well g'day, how you going? Where are we?" And he goes, "I don't know." I said, "What?" I said, "Well what's the last town we went through?" and he said, "I don't know." I said, "Well there must be a sign. Where's the next town we've got to get to?" and he said, "I don't know." And I said, "What?" I said, "You must know something." and I said, "You're fatigued." He said, "I'm on adrenalin." He says, "I'm, I'm", you know, "We can drive all night." and he was fire brigade, fireman, and he's used to driving long hours and all that in shifts. And so I said, "No, you've", "You're fatigued. Pull over. Get over." So after a small argument, he pulled over and then we just stopped the car. He took the keys out, threw them on the floor; pulled his seatbelt off and rocked back; I did the same; and that was it."
As is recorded at T14.12 to T14.29, the plaintiff then gave the following account of his own actions at that time, in the following terms:
"Q. You've said that Mr Hodgson took the keys from the ignition.
A. Yes.
Q. And that he took his seatbelt off.
A. Yes.
Q. Did he do anything further from your observation?
A. I just - no, he just put his seat - wound the seat back.
Q. Right.
A. And yeah, laid down to get to go to sleep.
Q. What did you do?
A. Well I just went straight back to sleep again.
Q. Did you do anything with your seat?
A. I rocked it back into a - the back position, yes. Wound it back into a sleeping position. Removed the seatbelt and then went back to sleep."
The fifth segment of the journey, which was the segment in which the accident occurred, commenced at some unknown time after those events. Notwithstanding the submissions made by the defendant to the contrary, I am satisfied that this journey commenced just north of Gympie, whilst the plaintiff was still asleep in the front passenger seat of the vehicle with the seat reclined for sleep, and whilst his seatbelt remained unbuckled. At that time, Mr Hodgson, who had earlier told the plaintiff that he had been feeling the stimulatory effects of adrenalin, had started driving north without the plaintiff being aware that he was doing so.
In arriving at these findings, I consider that the plaintiff's evidence to the effect that the journey had commenced and had proceeded whilst he was asleep was not glaringly improbable or unbelievable. It was consistent with his past experience as a driver, in which he described a practice of getting sleep where he could. It seems to me that in the absence of contradictory evidence, the only argument against acceptance of this aspect of the plaintiff's version was that raised by the defendant, to the effect that the plaintiff had previously lied to the Department of Social Security regarding his application for a Disability Support Pension, and he should therefore be disbelieved in respect of this evidence.
Whilst it is correct that given the plaintiff's concessions that he had lied about those matters on previous occasions, it necessarily meant that his evidence in these proceedings should be weighed with caution before acceptance, I am nevertheless satisfied the plaintiff's account is truthful.
The pair had travelled long distances on their journey north. It was credible that Mr Hodgson would have been feeling the effects of fatigue, despite his stated view that he was operating on adrenalin, and it is credible that the plaintiff, on recognising his own tiredness or Mr Hodgson's tiredness, would have insisted that they stop the vehicle to get some sleep, or at least take a rest from continued driving. This analysis is supported by the plaintiff having slept in the reclining position with his seatbelt left unbuckled whilst, in contrast, at the time of the accident, Mr Hodgson's seat was upright and it is plain that he had suffered a seatbelt injury in the accident.
I do not accept the argument advanced on behalf of the defendant to the effect that the plaintiff would have woken once Mr Hodgson re-started the vehicle and commenced to drive off the side of the road from the rest spot and onto bitumen. Nor do I accept that necessarily, the plaintiff would have been woken by the noise of the vehicle being driven on the road. It is not glaringly improbable or unbelievable that the plaintiff would have continued to sleep whilst tired in such circumstances, including for an extended period of time whilst the vehicle was driven over a considerable distance.
Having accepted the plaintiff's evidence on those matters, by reasonable inference from what had occurred immediately beforehand, that fifth segment of the journey clearly involved Mr Hodgson adjusting his driver's seat back into the upright driving position from the reclining position, as described in the preceding paragraphs, resuming his wearing of his seatbelt, re-starting the ignition of the stationary vehicle, driving the vehicle off from the side of the road where it had been parked for a time, and then driving further north along the Bruce Highway for an unknown distance, at an unknown time, for an unknown duration, at unknown speeds, on an unknown road surface and in unknown traffic conditions, until the point was reached where the vehicle left the roadway, travelled down a bush embankment, and into collision with a tree.
Before setting off on that fifth segment of the journey, or during a possible interruption to that segment of the journey, and unbeknown to the plaintiff, Mr Hodgson had obtained access to a quantity of alcoholic drink, which he proceeded to consume along that journey. A number of possibilities arise for consideration in that regard.
There is no doubt that there was a quantity of beer available in the vehicle for Mr Hodgson to access at some stage of that journey. There were at least 14 - 18 stubbies in the esky cooler packed at the back of the vehicle. There was no obstacle to Mr Hodgson taking steps to obtain access to that esky cooler at any time he chose to do so. The compelling inference is that he did so, because after the accident, Senior Constable Foley observed a quantity of at least 2, and not more than 10, empty stubbies on the floor on the front passenger side of the vehicle, and a stubbie in the drink holder on the console between the driver and the passenger seats. Given the evidence of the plaintiff, it is unlikely that those empty stubbies would have formed part of the corpus of rubbish from the earlier campsite, as the plaintiff described that rubbish as having been boxed and packed for subsequent disposal. The plaintiff also stated that those stubbies were not there on the floor of the vehicle earlier.
Whilst there is a compelling inference that Mr Hodgson had consumed a large quantity of beer on that fifth segment of the journey, I do not discount the possibility that he may have also had access to a more concentrated form of alcohol, such as spirits, and that he could possibly have discarded an empty container of such alcohol out of the window during the journey. Whilst this is a somewhat speculative possibility because there is no direct evidence to support it, logical analysis does not require that it be rejected out of hand. Ultimately, however, this is a matter that I do not need to decide, as Mr Hodgson's blood alcohol test results conclusively show he had consumed a considerable quantity of alcohol, of whatever form and of whatever fluid volume.
In the meantime, it is necessary to identify circumstances raised and relied upon by the defendant in that context. When Mr Hodgson undoubtedly obtained access to the back door of the vehicle to obtain the beer, whilst the vehicle had been stopped, in those events, he would have very likely made some sounds at the times the vehicle doors were opening and closing, and when the esky cooler was being manipulated into a position that was accessible to Mr Hodgson whilst driving.
In my view, these matters would not, as a matter of course, have caused the plaintiff to wake from his sleep at that time, or at those times.
In that regard, it is not glaringly improbable or unbelievable that the plaintiff would have continued to remain asleep during those events, and during the subsequent driving, and for that matter, on any occasions on which Mr Hodgson may have stopped the vehicle along the way in order to empty his bladder after drinking considerable quantities of beer, over an unknown period of time, and at unknown rates of fluid consumption over that time. That analysis will be revisited in connection with my findings on the contributory negligence issue.
Accident description
The plaintiff's evidence was that after stopping in order to rest just after they passed Gympie, and then after resuming his sleep, and then waking from sleep, his recollection concerning the events of the accident, at T14.38 - T14.42, was as follows:
"Q. What's your next memory after that?
A. My next memory was - it was where I - because when we hit the first bump or whatever it was, 'cause was my head went forward and hit the windscreen; and then I went backwards and forwards a few times while my - and then we finally hit a tree that stopped us."
Immediate aftermath of the accident
The events that then ensued following that collision, were in the following sequence:
(a) At some stage the plaintiff got out of the vehicle;
(b) At some stage Mr Hodgson got out of the vehicle;
(c) As a result of their efforts to get away from the vehicle, it was agreed between them that Mr Hodgson was physically better placed to go and try to summon help;
(d) Mr Hodgson made his way to the roadway, a distance of about 100m to 150m, including up a 20m relatively steep embankment, undoubtedly hindered by his injuries which were later revealed to have been fractured ribs, a flail chest segment due to a fractured sternum and manubrium, and a pneumothorax, and the added factor of him being an asthmatic;
(e) Mr Hodgson got to the roadway and at some stage used his mobile telephone to ring a third party to summon help;
(f) That third party rang emergency services, which logged the call at 06:33 hours, and efforts at locating and rescuing the pair then ensued, according to the chronology evident within the police and ambulance communication records.
Each of the above activities have some bearing upon any attempt at estimating the time of the accident, and upon the estimation of Mr Hodgson's blood alcohol level and his level of intoxication at that time. That said, the evidence does not permit a reasoned time analysis of those events, for the identification of a time for the accident to have occurred. I shall return to consider these matters after reviewing the evidence of the ambulance, police and hospital records, and related investigations.
Location of accident scene by emergency services
At 06:33 hours, the first call for assistance was listed as having been made to emergency services: Tab 20, Exhibit "1", p 154.
The police activity log for 14 July 2009 shows the 000 call logged at 06:49 hrs reporting a traffic accident 300km south of Rockhampton. At 06:45 hours, the Brisbane Police were noted to be on the phone to Mr Hodgson (referred to as POI). At 06:50, it was noted that the police communications centre were intending to triangulate the mobile phone location. At 06:57 hours, someone listening on the police 2-way radio advised she had seen a male person on the side of the road near a described location. At 07:00, a passing truck driver reported that she had located Mr Hodgson ("POI") and reported "he is very injured". She also reported seeing the 4-wheel drive vehicle in an off-road position down the embankment, and she reported that she could hear what must have been the plaintiff's voice. It is not clear as to whether or not it was the lights on the vehicle that made it visible at that time. At 07:08, the police communications centre was advised to discontinue attempts at triangulation.
Ambulance attendances at the scene
The ambulance records show that a call for assistance was received by the ambulance service at 06:39 hours. It appears from other evidence that the ambulance units were despatched to the general direction of the accident scene on the Bruce Highway without anyone knowing exactly where the accident scene was located. An ambulance was despatched at 07:04 hours and arrived at the scene at 07:17 hours. The ambulance personnel then started to assist the plaintiff at 07:20 hours.
At 07:20 hours the ambulance personnel commenced their work on the plaintiff by resting him and reassuring him. Between 07:21 and 07:41 they gave him Methoxyflurane via an inhaler twice, and between 07:30 and 08:10, they gave him 4 doses of IV Morphine 5mg without effect. Between 07:20 and 08:50 the plaintiff remained in "10 of 10" pain, which was monitored 7 times at 5 minute intervals to 08:00 and 5 times at 10 minute intervals from 08:00 to 08:50: Exhibit "2", pages 31-33. At 08:33 hours the plaintiff was loaded into the ambulance, and at 08:53 hours, it had reached Gladstone Hospital where transfer of care of the plaintiff then ensued: Exhibit "2", p 34.
The ambulance records show that at the scene, at an unstated observation time, the plaintiff's speech was clear and continuous, and that his appearance was calm and quiet. Accepting those observations, it is not clear as to which part of the time that had passed, whilst the plaintiff was attended to by ambulance personnel, those comments had application. Prof Moynhan expressed the view that the effects of the morphine doses would be likely to have made the plaintiff feel euphoric at that time.
Significantly, the ambulance case description summary relating to the involvement of the plaintiff in the events described in Exhibit "2", at p 30, was in the following terms:
"Pt was sleeping in front passenger side of vehicle no seatbelt worn pt awoke after vehicle had crash pt had self extricated Vehicle was aprox 150 meters off the road through dense scrub down an embankment . Pt GCS 15 complaining of 10/10 pain to left arm and collar bone. Pt was unable to be collared due to pain in left collar bone. Pt instructed to keep head a still as possible. Delay in extrication due to difficult access and egress QFRS and QPS were used for this extrication. Head to toe examination revealed possible fractures to left clavical(sic)/ humerus ulna/radius altered sensation with good cap refill. Pt also experiencing(sic) pain to left knee cap although no lose(sic) of mobiity(sic)."
The preceding summary provides some relevant background against which the evidence of Senior Constable Foley should be assessed concerning his evidence of his dealings with the plaintiff at the accident scene, and concerning his opportunity during his 30 - 40 minutes in the presence of the plaintiff, for him to have had relevant conversations with the plaintiff, as he recounted in his evidence on those matters. I shall return to this issue in my consideration of the evidence of Senior Constable Foley.
The ambulance records relating to Mr Hodgson also contain some details that are relevant to an analysis of what was likely to have occurred at the accident scene following the collision. Those records commence with a notation of the fact that Mr Hodgson was being attended to at 07:17, which suggests he was closer to the side of the road than was the plaintiff, or that he was perhaps considered to be more seriously injured than the plaintiff, whose needs were attended to 3 minutes later.
Between 07:17 and 07:55, Mr Hodgson was given Morphine IV 2.5mg, 3 times, which was stated to have been effective in relieving his pain, and he was given a Salbutamol inhaler, 5mg/2.5ml, twice, with effect on his airways, he being asthmatic, and Metoclopramide 10mg IV: Exhibit "2", p 501.
During the period of time that Mr Hodgson was being attended to by ambulance personnel, he was monitored on 9 timed occasions, and at each of those times it was considered not possible to rate his pain. Mr Hodgson was loaded into a separate ambulance to the plaintiff at 07:51, and he arrived at Gladstone Hospital at 08:01, with the ambulance being driven by a police officer: Exhibit "2", p 502.
The ambulance case description summary relating to Mr Hodgson within Exhibit "2", at p 497, was in the following terms:
"Pt was reportedly driver of a vehicle towing a campervan (with one additional passenger), travelling along Bruce Highway when he lost control of vehicle from road. Vehicle coming to a stop approx. 80m down steep embankment to left side of road (north bound), after hitting a large tree head-on. Delays in QAS finding accident scene due to incomplete details from driver who called incident in. Upon QAS, pt had self mobilised to top of road to raise alarm with passing traffic. Pt with GCS 15, well perfused, in obvious pain/discomfort and c/o SOB. Pt tachypnoea initially, improving shortly after QAS arrival. Nil supraclavicle or intercostal recession. Pt reports anterior thoracic pain, increasing upon movement/exam/deep inspiration. Pt non-specific in pain description. ? diminished(sic) chest sounds to upper right zone - however chest auscultation difficult to hear due to road noise and loud vocal sounds from pt. Unsteady gait, smell of alcohol on pt's breath. Haematoma to right clavicle/neck region - ? seat belt marks, Minor superficial lacerations to lower left leg - haemorrhage ceased prior to QAS arrival. Pt non-compliant with some QAS management during treatment -positioning/oxygen/ c-spine immobilisation."
Relevant events recorded in hospital notes
As the quantum of the plaintiff's damages has been agreed, it is not necessary to relate much in the way of detail of the plaintiff's injuries in addition to those already noted at paragraph [2] above, other than to note that at the accident scene, he had difficulty with mobility such that he remained by the vehicle, and his need for medical assistance was extensive and intensive.
Mr Hodgson continued to receive painkilling, nebulising and anaesthetic agents at Gladstone Hospital between 08:20 hours and 14:15 hours: Exhibit "2", p 503.
At 08:30 hours on 14 July 2009, a blood sample was taken from Mr Hodgson for therapeutic purposes. It revealed an analysis of serum ethanol of 46mmol/L: Exhibit "2", p 505. The laboratory report of the analysis stated:
"This test is not specific for ethanol, other alcohols can interfere at high concentration Serum or plasma values average 1.18 times higher than whole blood, therefore a serum or plasma concentration of approximately 13 mmol/L will roughly be equal to 0 05g% in whole blood"
At 08:35 hours on 14 July 2009, another blood sample was taken from Mr Hodgson at the request of the police, for forensic purposes.
At hospital, Mr Hodgson was diagnosed to have suffered severe injuries, as the following hospital summary transfer report within Exhibit "2", p 522, states:
"Mr Hodgson probably fell asleep while driving. His car got off the road and down a bank and hit a tree. He was wearing his seatbelt and managed to get back by the road and get some help early this morning. He always remained hemodynamically and neurologically stable since arrival. CT studies revealed a significant Right pneumothorax with rib fractures of # 1-2-3. Ribs 1 and 2 being fractured in 2 places and causing a flail segment. He also has a fractured sternum and manubrium. A chest tube was inserted on the right side and appears to work properly. Mr Hodgson has Asthma and his on Ventolin. He did require some here. He has NKA."
The above summaries have some relevance to the analysis of the likely timing of the accident because they serve as relevant background to what was likely to have prevailed in the time that followed the collision, and before ambulance, police and fire brigade assistance had arrived at the scene.
Statements obtained by investigating police
Constable Murphy and Constable Townsend were the first police officers at the scene. None of the police officers appear to have taken a formal statement from Mr Hodgson. This may well have been due to Mr Hodgson's level of intoxication, and because of the nature, extent and the effects of his injuries.
At about 08:15 hours, at Gladstone Hospital, Constable Townsend made notes of a conversation with Mr Hodgson: Exhibit "1", Tab 15. In making those notes it was observed that Mr Hodgson had an apparent seatbelt mark on his right shoulder and neck area, as well as there being two cuts to his left shin area. When asked by police officers as to whether he had been the driver of the vehicle at the time of the accident, Mr Hodgson was quoted as stating "I think so".
At that time, ambulance and medical staff were in attendance, and it was apparent from the notes that Mr Hodgson was not co-operating with attempts at medical management of his condition in that he was repeatedly ripping off a neck brace that had been fitted on 4 - 5 occasions. At that time, Constable Townsend recorded that at her direction, at 08:35 on that day, a hospital doctor had taken blood from Mr Hodgson for the purpose of formal forensic blood alcohol analysis.
Constable Townsend then made the following retrospective note of prior events at the scene:
"Notes from initial scene. Observed one male person next to B double truck on Bruce Highway south of Cedar Galleries. Person later identified as Philip HODGSON.
He stated one more person in vehicle. Vehicle observed to be approximately 100 - 150 metres off the road. Observed apparent tracks from vehicle. Followed tracks to a 4wd vehicle, registration NSW plate A7 AY55WU, trailer attached NSW, V2 V62771.
Trailer was overturned, and perpindicular (sic) to vehicle. Vehicle had hit a tree, approximate 20cm in diameter. Bull bar observed to be smashed inwards & glass smashed but not broken on passenger side of vehicle.
One male person out of vehicle on passenger side, holding his arm (left). Right leg was prott prosethetic (sic). Breathing appeared fine, conscience (sic) & speaking stated leg hurt also."
Senior Constable Foley had attended at the scene at about 07:30 hours. He made a note of that time at page 155 of his notebook: Exhibit "1", Tab 16. Then, after making some notes of his observations of the vehicle, including registration, type, colour, fittings and odometer reading, he made notes of a conversation he had with the plaintiff, in the form of questions and answers, which proceeded as follows:
"Q Sir, do you know what seat you were occupying.
A The passenger seat.
Q Do you remember the accident.
A We pulled over for the night on the side of the road, ages back and then waking up here.
Q Do you know where you pulled over.
A After Gympie."
Senior Constable Foley stated that the above conversation was recorded on the last two pages of his notebook, a copy of which was in evidence. His notes of this incident ended with a diagram of the accident scene: Tab 16 of Exhibit "1". The last 2 lines of his notebook refer to some details of a subsequent investigation unrelated to the subject accident. Those notes had been made at some time after Senior Constable Foley had completed his work at the scene of the subject accident.
Senior Constable Foley stated that he recalled having an additional conversation with the plaintiff at the scene of the accident before the plaintiff was loaded into the ambulance. He did not record any details of that conversation in his notebook and he conceded that he had the facility for using another officer's notebook for such a purpose if the pages of his own notebook had been filled. There was no evidence called that suggested he had utilised another police officer's notebook, or any other means of note taking, for that purpose. The additional conversation was a matter of some significance to the assessment of the issue of the plaintiff's alleged contributory negligence.
Senior Constable Foley recounted that un-minuted conversation that he said he had with the plaintiff, in the following terms, at T128.12-20 and T128.50-T129.17:
"Q. Just doing the best you can, can you recall further conversations that you had with the plaintiff beyond that that's recorded in the notebook?
A. I asked him, I asked him - after he said, after Gympie I said do you recall where after Gympie and he did say that it was a rest area and it was - and I said well there's a rest area just north of Gympie on the left hand side of the road which he concurred it was on the left hand side that they pulled over. And I assumed from that, that that would've been the spot that he would stop between - from Gympie to Maryborough you've got a stop at Gunalda which is on the incorrect side of the road.
...
Q. Sorry senior constable.
A. I did, I did ask - would this be the area? He just said that he wasn't familiar with the - with it, could be, could - might not have been. I, I said, "What did you do there?" they said that he had a couple of drinks and then he said he rested down for the night, and he'd already answered to me that he woke up coming down the embankment. I didn't go any further into it - anything else.
HIS HONOUR
Q. Where was the plaintiff when this conversation was taking place? Where was Mr Jones when the conversation took place?
A. I, I only spoke to him when he was seated down beside the passenger seat of the car, beside the car when he was treated with by paramedics.
Q. What stage had the treatment reached at that point?
A. When I got there I believe that he had pain relief in his hand already and he was, he was having that. We hadn't got him on the stretcher yet, the ambulance was still working on it."
When the details of that conversation were explored with Senior Constable Foley in the course of his evidence, he acknowledged that his account of that conversation was based partly on his recollection, and partly upon matters he had assumed. At the time he gave his evidence in which he sought to recount the conversation, it was well over 5 years after the event. He stated that the first time he had been asked to recall/reflect upon the conversation was a few months before the trial, at the request of counsel for the defendant.
Senior Constable Foley said that the occurrence of this particular accident was memorable to him, including for the reason of the unusual feature of him having seen the plaintiff's leg prosthesis at the scene. Given the acknowledged admixture of recollection and assumption within Senior Constable Foley's account of that conversation, I consider that this evidence should be weighed with some considerable caution insofar as it is relied upon by the defendant to seek to establish knowledge on the part of the plaintiff, of Mr Hodgson having consumed alcohol on the journey from Gympie to the accident scene.
In highlighting that need for caution in assessing Senior Constable Foley's account of that further conversation, I do not intend that my remarks in this regard be read as any kind of criticism of Senior Constable Foley, who obviously did his best to recall a conversation that had occurred over 5 years earlier, and which took place in difficult and hectic circumstances, where no contemporaneous note had been made because of the limited opportunity to do so, and where since then, he has obviously had many conversations in the course of his official duties as an investigating police officer.
In considering and analysing Senior Constable Foley's account of the conversation he had with the plaintiff as recounted in paragraph [75] above, especially in the light of his concession that the account is partly based on inseparable assumption, I consider that account to be unreliable and should not be taken to be an accurate description of events given by the plaintiff of the prior events mentioned in that account related by Senior Constable Foley. There are discrepancies or variations in the account given by the plaintiff in evidence compared to the details recounted by Senior Constable Foley.
Those discrepant matters included a reference to the vehicle pulling over in a designated rest area, rather than by the side of the road as was described by the plaintiff; the assumption of the rest area being on the opposite side of the road to vehicles travelling north, when the plaintiff described no such manoeuvre of crossing the road, and instead, simply referred to the vehicle pulling over to the side of the road; the reference to a couple of drinks being consumed at the rest area, contrary to the plaintiff's account.
Having due regard to those matters, I consider the admitted mixture of recalled conversation and assumptions, the amount of time that has passed since the conversation, the relatively recent request to recall the conversation, and the lack of a contemporaneous note, and the general and the need to make allowances for the well recognised fallibility of human recollection over time, in combination, all indicate I should treat the detail of that recounted conversation as an unreliable basis upon which to impugn, contradict and reject the plaintiff's contrary account: s 140 of the Evidence Act 1995.
Instead, I prefer the plaintiff's account of the events that he described as having occurred immediately before, and at the rest break, namely the vehicle pulling over and stopping, and the driver and passenger reclining their seats for sleeping. I have reached these findings, notwithstanding the attack that the defendant made on the plaintiff's credit.
Other police investigations of the accident
No issues of concern emerged from the evidence concerning the chain of custody or the analysis of the blood samples taken from either the plaintiff or Mr Hodgson.
At the scene, the police took a series of 26 coloured photographs. Enlarged copies were located at Tab 17 of Exhibit "1". The police investigation at the scene, and subsequently, is described in sequential logged detail at Tab 12 of Exhibit "1", pages 99 - 115.
After the plaintiff and Mr Hodgson were taken to hospital in separate ambulances there were limited opportunities for the investigating police to take statements from either of them. Mr Hodgson had been placed in an induced coma for some considerable time. Both men had been transferred to distant hospitals. Subsequently, therefore, the local police from Calliope had limited further involvement in the investigation. Mr Hodgson was later issued with a summons charging him with driving under the influence of intoxicating liquor. He failed to appear at court, and it appears that at some subsequent stage the file was closed, presumably after his death.
A narrative at page 104 of Exhibit "1", comprising the police investigation file, prepared by Senior Constable Foley states:
"Passenger has not been interviewed. Passenger advised whilst being interviewed 'We pulled up around Gympie, north I think, a (sic) settled down for the night. I fell asleep in the passenger seat without a belt on. I woke up going down the embankment with Phillip driving.'"
A subsequent entry in the police records made by Senior Constable Foley, which appears at pages 107 (typed) and 116 (handwritten) of Exhibit "1" states:
"Unit one was heading north on the Bruce Highway, towing a camper trailer. Unit One had just driven up a rise in the road and on the crest is a right hand bend. Unit one commenced negotiating this bend and then drove off the road, down a 10 metre embankment veered left at the bottom of the embankment and then slammed into a tree. Trailer tow hitch pulled off tow ball and A frame of trailer, and rolled beside vehicle. Both occupants unable to speak to police due to injuries.
Driver smelt strongly of alcohol and cabin of vehicle was littered with empty stubbies, one stubbie was still in its cooler in the centre console of vehicle.
Both occupants taken to Gladstone Base Hospital were (sic) blood was taken from the driver, Phillip John HODGSON. Both were transferred to the Rockhampton Base Hospital."
There is no evidence as to the time when the plaintiff got out of the vehicle after hitting his head on the windscreen. He said he reached across and opened the door and got out. Similarly, there was no evidence as to the time Mr Hodgson got out of the vehicle, although it took longer for him to get out of the vehicle compared to the plaintiff's exit. There is no evidence to suggest the plaintiff got out immediately following the collision with the tree. There was evidence that once the plaintiff started to get out of the vehicle, he succeeded in doing so quickly. The evidence of the plaintiff and Mr Hodgson respectively getting out of the vehicle sheds no light on the probable time of the collision.
There is no evidence as to the period of time that was taken up following the accident in which the plaintiff and Mr Hodgson discussed and eventually agreed upon Mr Hodgson trying to get to the road to summon help. There was a period of time when the plaintiff was attempting to get away from the vehicle, but the duration of his thwarted attempts before he abandoned them remains unknown. That period of time, whatever it was, does not assist in identifying the time of the collision.
It would appear that the 06:33am telephone call to summons help was made after Mr Hodgson had proceeded up the embankment over a distance of some 100 - 150 metres drop or a slope of some 20 metres. Given his symptoms of severe chest pain from his chest fractures, his shortness of breath, and his pneumothorax, it would be a speculative exercise to try and estimate the period of time it took him to firstly make that uphill journey of about 150m, and to then get his bearings in relation to the water tower that became visible nearby, and to make the call for help, noting that the accident probably occurred in darkness. Those events also do not assist in reasonably identifying the time of the collision.
These considerations call into question the reasonableness of Associate Prof Starmer's assumption to which I shall shortly refer, to the effect that the accident occurred at 06:15 hours, and the reasonableness of the assumption put to Associate Prof Moynhan, namely 06:39 hours. Those times were entirely speculative, but were no doubt selected for the purposes of these proceedings because of the need for the defendant to come to terms with sections 48 - 49 of the QCL Act. In my view, those estimates are unreasoned, and they cannot be justified other than through unwarranted and convenient speculation.
In my view, the state of the evidence requires a finding that the precise time the accident occurred remains speculative, unknowable, and not capable of reasonable approximation.
An evaluation of the distance, thought to have been travelled at a series of assumed speeds, is also an unproductive exercise because of the absence of any accurate description of the terrain travelled by the vehicle. In that regard, Senior Constable Foley's evidence of road conditions is of limited value because of its general and non-specific terms.
Furthermore, Senior Constable Foley's evidence is non-contributory to the question of the probable time at which the accident occurred, or whether the plaintiff knew or was likely to have known, of Mr Hodgson's degree of alcohol intoxication, this latter topic being the subject of expert pharmacological evidence.
Expert evidence
The defendant tendered primary and supplementary expert pharmacological opinions from Associate Prof Graeme Starmer. Prof Starmer became indisposed prior to the hearing and was unable to give evidence. As a consequence, the defendant tendered a report from another pharmacologist, Associate Professor AF Moynhan, who gave evidence and was cross-examined. The pivotal question that emerged from this evidence was the probable extent of Mr Hodgson's likely blood alcohol content at the time of the accident.
Associate Prof Starmer provided 2 reports that were respectively dated 2 September 2012 and 22 October 2012. In considering the blood sample taken from the plaintiff for therapeutic purposes at 13:15 hours on 14 July 2009, which returned a serum analysis of less than 3mmol/L, or less than 0.014g/100ml, he said this should be regarded as being the equivalent of zero, or below detection limits. As a consequence, it was not feasible to undertake a back calculation or a projection over time in order to determine or estimate whether the plaintiff had a relevant blood alcohol concentration at an earlier and analytically relevant point in time.
Associate Prof Starmer considered that the forensic analysis of Mr Hodgson's blood sample taken at 08:35 hours on 14 July 2009 enabled him to estimate, in his opinion, Mr Hodgson's most likely blood alcohol concentration at the time of the collision would have been between 0.192g/100ml, or in the range 0.180 to 0.215g/100ml, or not significantly below 0.160g/100ml. Associate Prof Starmer had assessed that Mr Hodgson was in the elimination phase of his blood alcohol concentration curve at the time of the accident.
The difficulty with those opinions is the inability on the evidence to pin-point with any reasonable precision, the likely time of the accident. Without evidence, Associate Prof Starmer's opinion was based on an assumed accident time of 06:15 hours.
In his second report, Associate Prof Starmer considered but discounted the likelihood that the drugs that were administered to Mr Hodgson would have had any significant pharmacokinetic effect.
In his report dated 20 March 2013, Associate Prof Moynhan stated that he agreed with the opinions of Associate Prof Starmer, except that whereas Associate Prof Starmer had placed the time of the accident as being 06:15 hours on 14 July 2009, he had been asked to assume it had occurred at 06:39 hours. On that changed assumption, Associate Prof Moynhan was of the view that Mr Hodgson's most likely blood alcohol concentration would have been close to 0.186g/100ml, assuming a range of not less than 0.176g/100ml and an upper limit of 0.205g/100ml.
Associate Prof Moynhan was asked to make an estimation of the number of stubbies of beer (each containing 1.38 standard drinks or 13.8grams of alcohol) that Mr Hodgson would have probably consumed to have reached a blood alcohol concentration of 0.157g/100ml at 08:35 hours. In that regard, he was of the view that if consumption was taken to have commenced at either 4.00pm, 5.00pm or 6.00pm on 13 July 2009, then the required number of stubbies of beer would have been likely to have been approximately 14.8 stubbies (20.4 standard drinks), 14.2 stubbies (19.6 standard drinks) or 13.7 stubbies (18.9 standard drinks), respectively.
The difficulty with analysing this evidence is that the police did not conduct an audit or any form of accurate count of the actual number of stubbies remaining in the esky cooler, or of those that were located on the floor of the vehicle on the passenger side. Nevertheless, it must be accepted that at the time of the accident, Mr Hodgson was intoxicated by the earlier consumption of alcohol. The time of the commencement of consumption, the rate of consumption and the time of the accident, all remain uncertain.
The defendant also tendered a report dated 13 November 2012 from Dr Michael Griffiths, an expert bio-medical and mechanical engineer: Tab 4 of Exhibit "1", pages 29 - 78.
Dr Griffiths concluded that the vehicle driven by Mr Hodgson failed to travel around a curve of the roadway to the right, and had left the roadway and then travelled down the embankment into the bush where it collided with the tree. Dr Griffiths noted that there had been multiple minor impacts between the time the vehicle ultimately hit the tree and came to a halt. He estimated the speed at the final central frontal impact to have been between 25 to 30kph.
Dr Griffiths expressed the opinion that all of the plaintiff's injuries occurred as a result of direct impact with the interior of the vehicle without intrusion into the cabin of the vehicle. He expressed the opinion that if the plaintiff had worn the available seatbelt, the deceleration loads in the accident could have been applied in an even manner over the robust bony structures of his body, and could have easily provided the plaintiff with complete protection from injury.
On the evidence in the proceedings, none of those conclusions seemed unreasonable or illogical, even if there was limited evidence to support the crash analysis.
Dr Griffiths' opinion as to injury prevention if a seatbelt had been worn by the plaintiff must be considered in light of the plaintiff's evidence that he did not wear his seatbelt at the time of the collision because his seat had been reclined for sleeping whilst the vehicle had been stopped and parked for that purpose, and in those events, he had therefore not known that the vehicle would be driven whilst he remained unrestrained by an otherwise available seatbelt.
Findings concerning Mr Hodgson's level of intoxication
There is no room for doubt that Mr Hodgson was intoxicated at 08:35am on 14 July 2009 with an objective blood alcohol content measured at 0.157gm/100ml.
In making back calculations based on the expert pharmacological evidence, at or shortly after the time Senior Constable Foley arrived on the scene at 07:30am, and earlier, when Mr Hodgson took steps to initiate the call to emergency services at 06:33am, on the assumption that Mr Hodgson was already in the alcohol elimination phase of his metabolism, further assuming no further alcohol was consumed in the 20 minutes before those times, Mr Hodgson's blood alcohol content could be assumed to be significantly higher than 0.157gm/100ml.
Employing the minimum, maximum, and average elimination rates identified by Associate Prof Moynhan, the following tabulation reveals the approximate values at those identified times.
Tabulation of values in grams/100ml of blood
Time
Minimum Elimination (+0.010)
Average Elimination (+0.015)
Maximum Elimination (+0.025)
08:35
0.157
0.157
0.157
07:35
0.167
0.172
0.182
06:35
0.177
0.187
0.207
Although, the above calculations show that Mr Hodgson was considerably intoxicated by alcohol at all relevant times, they shed very little useful light on the probable time of the accident. All that can be reasonably said of Mr Hodgson's blood alcohol status in the several hours (not just 2 hours) before the accident, was that he was considerably affected by alcohol intoxication. Beyond that, impermissible speculation is not a valid pathway to fact-finding, inconvenient though that may be for one or more of the parties: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
This then leads to a consideration of whether the plaintiff either knew, or ought to have known, that Mr Hodgson was intoxicated leading up to the time when the accident occurred.
Findings concerning alleged contributory negligence
In arguing that there should be a finding of contributory negligence made against the plaintiff, counsel for the defendant properly conceded that if it could not be shown that the plaintiff either did not know, or could not be taken to have known that Mr Hodgson had been drinking alcohol on the final segment of the journey because the plaintiff was asleep, then the inevitable result must be a full verdict for the plaintiff, without discount for alleged contributory negligence on the alcohol issue.
The defendant's amended defence, which was filed on 8 March 2013, raised and relied upon the following particulars of contributory negligence:
(a) Failing to wear an appropriately fastened seatbelt when required by law to do so.
(b) Travelling as a voluntary passenger in a motor vehicle driven by a person whose ability to drive the vehicle was impaired by the consumption of alcohol at a time when the plaintiff was aware or ought reasonably to have been aware that the driver's ability to manage and control the vehicle was impaired as a result of the consumption of alcohol.
(c) Becoming intoxicated to the extent that he allowed the driver to drive knowing that the driver's ability to manage and control the vehicle was impaired by the consumption of alcohol and whilst unrestrained.
(d) Failing to take reasonable care for his own safety.
The onus is on the defendant to establish that the claimed defence of contributory negligence should apply in the circumstances. In the paragraphs that follow, I set out my findings on the issues raised by the defendant regarding alleged contributory negligence on the part of the plaintiff.
As to (a) - failure to wear a seatbelt
There is no dispute that the plaintiff was not wearing a seatbelt at the time of the collision. Consistent with my earlier stated finding that the plaintiff undid his seatbelt, reclined his seat and went to sleep at an earlier time in the evening in the expectation of sleeping whilst the driver also rested, and then remained asleep until he became aware of the vehicle having left the road and travelling towards the tree with which it collided, I find that the plaintiff had not consciously failed to wear a seatbelt in the relevant sense. This is because it was his understanding that at the time he undid his seatbelt, that the vehicle would remain stationary for an agreed rest break before re-commencement of the journey. On that analysis, the opinion of Dr Griffiths has no bearing on the matter. It follows that the contributory negligence defence, based on alleged failure of the plaintiff to wear a seatbelt, has not been sustained by the defendant.
As to (b) - actual or imputed awareness of driver's intoxication
There are two aspects of the analysis of whether the plaintiff knew or ought to have known of Mr Hodgson's state of alcohol intoxication in the lead-up to the accident.
The first is the credibility of the plaintiff's evidence that he had such knowledge, and whether that evidence should be accepted. The second is the uncertainty in the evidence, of the time of the accident.
Dealing with the second aspect first, given the estimated timed blood alcohol values that came from the pharmacology experts, as exemplified in the tabulation at paragraph [110] above, the likely timing of the accident takes on lesser importance, given my acceptance of the plaintiff on the first aspect, namely the credibility of the plaintiff's testimony.
On behalf of the defendant, it was submitted that the plaintiff could not be believed on his oath when he said he was asleep during the final segment of the journey. That submission proceeded upon the premise that because the plaintiff had lied in the course of seeking a Disability Support Pension, caution dictates that his evidence in these proceedings should not be accepted on critical matters.
The submission was developed by the defendant to assert that it was inherently improbable that the plaintiff would have slept uninterrupted during the analysed sequence of events commencing with the argued noise of opening and closing the back door and driver's door of the vehicle whilst the esky cooler was removed from the back of the vehicle, the argued noise of the esky cooler being placed somewhere within the vehicle within reach of the driver, the sounds of the seatbelt being engaged, the sound of the keys being placed in the ignition, the sound of the ignition, the sound of the vehicle moving off the side of the road, the sound of the vehicle being driven, possibly over an uneven or pot-holed road, and the sounds of stubbies of beer being opened and consumed, and then discarded onto the passenger side floor of the vehicle, and the noise involved in possible breaks in the journey whilst Mr Hodgson might have needed to relieve himself of urine accumulation.
Against those arguments is the plaintiff's counter-argument that it is not inherently implausible or improbable that the plaintiff could have slept through those sequences over a prolonged period of time. That submission is supported by the likelihood the plaintiff was probably tired because of the long journey the pair had embarked upon, which does not render a prolonged period of sleep, at night, implausible. Furthermore, the plaintiff was accustomed to getting sleep on the move when he could, whilst someone else drove the vehicle.
Furthermore, as to the road noise theory, which was based on an invalid comparison that came from the evidence of Senior Constable Foley, who described the road over which the vehicle had been driven as rough. The invalidity of the comparison argued by the defendant was that Senior Constable Foley's vehicle was a 1998 Holden Commodore sedan, whereas the plaintiff's vehicle was a 4-wheel drive with bigger wheels designed for travel over rougher terrain.
In support of the plaintiff's account of not being aware of Mr Hodgson driving the vehicle after the break in the journey just after Gympie, until the events of the accident, is the consistent contemporaneous account the plaintiff gave to Senior Constable Foley and to the ambulance personnel. Having heard and seen the plaintiff give his evidence and face persistent cross-examination on the points, I consider it extremely unlikely, following the incident when the plaintiff's head had hit the windscreen, and he had extreme (10/10) pain from his injured left arm and left leg, that he had the presence of mind and guile to give a concocted self-serving account in order to seek to advantage himself for the purpose of these proceedings or generally.
In analysing the events leading up to the accident against the probable distance travelled from a point just after Gympie, to Benaraby, the exercise is revealed to be one that is impossible to undertake, without undue and unreasoned speculation. In my view, important parameters for analysis remain unknown on the evidence. Those unknown factors are the starting time of the journey from just part Gympie, the time of the collision, and the speed of the vehicle on that journey.
The estimates of the marked distances on the map comprising Exhibit "C", portraying the total distance between Gympie and Calliope total approximately 260km. Without some reliable insight into the journey times, the speed of travel, or the time during which the vehicle was stationary near Gympie during the rest break, any estimation of the actual or approximate time of the accident remains a matter of speculation that is unreasonable by way of reasoned findings.
Those circumstances throw no light upon the plaintiff's argued awareness of the level of Mr Hodgson's intoxication.
For the above reasons, I am satisfied that the plaintiff had no knowledge of the defendant's intoxication in the lead-up to the collision. Furthermore, I am satisfied that the plaintiff remained asleep between the rest stop near Gympie until just before the collision, and therefore cannot have had imputed or constructive knowledge of Mr Hodgson's intoxication in the lead-up to the accident.
I therefore reject the defendant's arguments on the credibility of the plaintiff's testimony.
On the question of the plaintiff's alleged actual knowledge of Mr Hodgson's intoxication, I find that this particular of contributory negligence has not been sustained by the defendant.
On the question of the plaintiff's argued imputed knowledge of Mr Hodgson's intoxication, for the same reasons, I also find that this particular of contributory negligence has not been sustained by the defendant.
As to (c) - judgment allegedly impaired due to self-intoxication
There is no reliable evidence upon which to base a finding that the plaintiff was intoxicated, or that his judgment was impaired at any relevant stage before the accident occurred. There is no evidence from the post-accident events, including the analysis of his blood taken at 13:15 hours on 14 July 2009, that could reliably base an inference that the plaintiff was to any relevant degree intoxicated in the events leading to the accident.
There is no reliable basis upon which to conclude from the fact that the plaintiff and Mr Hodgson were in each other's company and were friends, that they were drinking together or at the same rate, on the last segment of their journey. I have found that the plaintiff was asleep at the time the defendant re-commenced driving and then drove to the point of the collision. It follows that this particular of contributory negligence has not been sustained by the defendant.
As to (d) - alleged failure to take reasonable care for his own safety
In my view, there is no evidence that would reasonably permit an allegation to be sustained to the effect that the plaintiff failed to take reasonable care for his own safety. On the contrary, I accept that after the vehicle departed from the Sunshine Motorway intersection, and when the plaintiff woke to find Mr Hodgson was driving in a manner that concerned the plaintiff, he took the reasonable action of persuading Mr Hodgson to pull over and stop to rest. I accept that at that point, the plaintiff went back to sleep. In my view, none of those actions bespeak a failure on the part of the plaintiff to take reasonable care for his own safety.
Disposition
The consequence of giving effect to the agreement between the parties on quantum is that the plaintiff must succeed on the primary issue of negligence. In addition, I have found that the defendant has failed to establish the claimed defence of contributory negligence. It follows that the plaintiff is entitled to an undiscounted verdict and judgment in his favour, in the agreed amount of $1,800,000.
Costs
As the plaintiff has succeeded in his action, he is therefore entitled to an order for costs in his favour on the ordinary basis, unless either party can show an entitlement to costs on some other basis.
Orders
I make the following orders:
(1) Verdict and judgment for the plaintiff in the sum of $1,800,000;
(2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
Decision last updated: 07 June 2013
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