Medlin v Nominal Defendant - [2021] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

Medlin v Nominal Defendant [2021] QSC 186

PARTIES:

DARREN GEORGE MEDLIN

(Plaintiff)

v
NOMINAL DEFENDANT

(Defendant)

FILE NO/S:

RS 463 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

5 August 2021

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

3, 4 and 11 December 2020

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. The claim is dismissed; and

2. The parties are to provide written submissions as to costs within 14 days.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE

TORTS – NEGLGIENCE – OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES – ROAD ACCIDENTS

Where the Plaintiff was driving a utility and collided with another vehicle – where the circumstances of the collision were the subject of controversy – where the Plaintiff alleges the crash was caused by an unidentified red vehicle – whether the Plaintiff was following a red vehicle that swerved late and dangerously – whether the unidentified red vehicle owed the Plaintiff a duty of care

Civil Liability Act 2003 (Qld) ss 11, 22, 23, 24

Jones v Dunkel (1959) 101 CLR 298, cited
Kerle v BM Alliance Coal Operations Pty Ltd & Ors (2016) 262 IR 381; [2016] QSC 304, cited
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, cited
Pell v R (2020) 94 ALJR 394, cited

COUNSEL:

M T O’Sullivan for the Plaintiff
G O’Driscoll for the Defendant

SOLICITORS:

Shine Lawyers for the Plaintiff
Jensen McConaghy Lawyers for the Defendant

On 1 December 2014 Darren Medlin, the plaintiff, was driving home to Yeppoon, along Yeppoon Road in his Toyota Hilux. He collided with the back of a white Ford Falcon utility, driven by Hayden Finn. The Ford Falcon was waiting to turn right into the driveway of 1600 Yeppoon Road. Hayden Finn’s mother, Ms Sharon Finn, was a passenger in the Ford Falcon. Mr Medlin suffered severe injuries. Hayden Finn and Ms Finn were also injured.
The circumstances in which the collision occurred are the subject of significant controversy, which this Court must determine. In particular, the plaintiff alleges that the accident was caused by an unidentified red vehicle violently swerving to the left, without warning, in front of the Toyota Hilux. The red vehicle is said not to have stopped at the accident and left the scene. As a result of the red vehicle not being identified, the defendant in the present action is the Nominal Defendant. The Nominal Defendant disputes that there was any red vehicle involved in the accident which occurred.
If the threshold issue of whether there is a red car is determined in favour of the plaintiff, the parties are in dispute about all aspects of liability. The plaintiff contends that the red car was negligent in a number of ways. The Nominal Defendant denies that the driver of the red car owed a duty of care to the plaintiff which extended to it driving in a manner “which protected the Plaintiff from the exigencies of other traffic or materially increased his prospect of safely accommodating them” to support the allegations of negligence. Alternatively, the Nominal Defendant contends even if there was such a duty, the red car was not negligent nor were its actions causative of the collision between Mr Medlin and the Finns. The Nominal Defendant alleges the plaintiff was negligent or contributorily negligent.
In determining liability ss 9-12 of the Civil Liability Act2003 (Qld) apply.
Quantum of damages has been agreed in the event the issues are resolved in favour of the plaintiff.
Critical issues identified by the parties
The parties are in agreement that the issues critical to the determination of liability in this case are:
(a)Was the plaintiff following a red car that swerved late and dangerously?
(b)If the answer to (a) is yes:
(i)Did the driver of the red vehicle owe to the plaintiff, a following vehicle, a duty of care?
(ii)What was the nature, scope and content of that duty?
(iii)Did the driver of the unidentified vehicle breach the duty owed?
(iv)Has the plaintiff proved factual causation?[1]
(v)Was the plaintiff guilty of contributory negligence?[2]
(vi)If the answer to (v) is yes:
(A) Does the contributory negligence defeat the claim?[3]
(B) What is the appropriate reduction of damages for the plaintiff’s own negligence?[4]
[1]Civil Liability Act 2003 (Qld) (CLA), s 11(a).
[2]CLA, s 23.
[3]CLA, s 24.
[4]CLA, s 22.
In the event Mr Medlin is successful, the quantum of damages has been agreed to be $1.5 million. It is therefore unnecessary for the Court to address damages.
The pleaded case
Material to the critical issues are paragraphs 3 and 5 of the amended statement of claim:
“3.On 1 December 2014:
(a)The plaintiff was driving a Toyota Hilux along Yeppoon Road at Mulara in the state of Queensland;
(b)The plaintiff’s vehicle was following a red or maroon vehicle;
(c)On the relevant section of roadway, Yeppoon Road:
(i)      Is a two way road with a single lane of travel in each direction;
(ii)     Is a straight and flat stretch of road;
(d)As the plaintiff’s vehicle approached a residence situated at 1600 Yeppoon Road:
(i)      The red or maroon vehicle travelling in front of the plaintiff suddenly, and without warning, sharply swerved to its left, off the roadway;
(ii)     When it did so, the plaintiff saw, on the roadway in his lane of travel, a white Ford Falcon;
(iii)     The Ford Falcon:
A.had indicated its intention to turn 200 metres from 1600 Yeppoon Road, had slowed and was stopped, waiting for a break in oncoming traffic in order to turn right into 1600 Yeppoon Road;
B.was not in the course of action described in A above reasonably visible to the Plaintiff, until the red or maroon vehicle had swerved as aforesaid.
(iv)     The plaintiff had no opportunity to avoid colliding with the Ford Falcon;
(v)     The plaintiff’s vehicle collided with the Ford Falcon.
…
5.The accident and the plaintiff’s Injuries were caused by the negligence of the driver of the red or maroon vehicle, in:
(a)Failing to stop behind the Ford Falcon and await its turn before proceeding;
(b)Failing to slow down as he or she:
(i)      saw or should have seen the Ford Falcon indicate its intention to turn and slow its speed:
(ii)     approached the Ford Falcon stopped on the roadway;
(c)Overtaking the Ford Falcon by leaving the roadway and travelling along the shoulder of the roadway, when it was not safe to do so;
(d)Failing to indicate his or her intention to overtake the Ford Falcon by activating its indicator and slowing, so as to give following vehicles sufficient opportunity to stop behind or overtake the Ford Falcon;
(e)When he or she ought to have known that the view of the Ford Falcon afforded to drivers of following vehicle was obscured by his or her vehicle, suddenly and sharply swerving so as to give following vehicles no opportunity to stop behind or overtake the Ford Falcon;
(f)Driving without due care and attention;
(g)Failing to keep a proper lookout.”
The defendant also admits the allegations in paragraph 3(d)(iii)(A) of the amended statement of claim. The defendant otherwise denies the allegations in paragraphs 3(b), 3(d)(i), 3(d)(ii), 3(d)(iii), and 3(d)(iv) of the amended statement of claim in the following terms:
“3.The Defendant denies:
(a)The allegations made in paragraphs 3(b), 3(d)(i), 3(d)(ii), 3(d)(iii), 3(d)(iv) and 8 of the Statement of Claim because:
(i)      Those allegations are untrue in fact;
(ii)     There was in fact no red or maroon vehicle or any vehicle travelling ahead of the Toyota and between it and the Ford immediately prior to the collision aforesaid;
(iii)     The Plaintiff drove the Toyota into the rear of the Ford without the involvement (whether in the manner alleged or at all) of any other motor vehicle;
(iv)     In the alternative, no proper inquiry and search for the alleged red or maroon vehicle was or has been undertaken;
(v)     At all material times on his approach to the collision, the Ford utility was visible to the Plaintiff in that:
(A)His vision of it was not impeded by any red or maroon vehicle as aforesaid; and/or
(B)The Ford utility was fully visible to him; or alternatively
(C)As hereinafter particularised in paragraphs 5(e)(viii), 5(e)(ix) and 5(e)(x) he failed to effect and maintain a lookout which would have enabled him to see and avoid the Ford utility.
(b)The allegations in paragraph 6(e) of the Amended Statement of Claim because:
(i)      Those allegations are untrue in fact;
(ii)     The Plaintiff has, and will utilise, a substantial residual earning capacity.”
The defendant contends that even if the Court found that there was a red vehicle being driven in front of the Toyota Hilux, and the vehicle swerved to the left, as alleged by the plaintiff in paragraph 3 of the statement of claim, the defendant was not negligent.[5] The defendant also contends, inter alia, that the driver of the red vehicle did not owe the plaintiff any relevant duty of care which extended to the matters the subject of the allegation of negligence by the plaintiff. It further contends that the manoeuvre of the red car alleged by the plaintiff was available to that car, such that it could conduct the manoeuvre safely due to the width of the bitumen surface and a further margin of safety from the gravel shoulder beyond the bitumen surface. The defendant therefore pleads that the red car was not negligent or in breach of a duty in carrying out such a manoeuvre.
[5]Amended Defence to the Amended Statement of Claim, at [5].
The defendant further alleges that that the collision was caused solely by the negligence of Mr Medlin by driving at excessive speed, driving too close to the red vehicle in the circumstances, by failing to keep a proper look out, and by driving without due care and attention, the particulars of which are set out in paragraph 5 in the amended defence. Those matters were relied upon by the defendant in submissions as being relevant to contributory negligence.
While the defendant denied that the red vehicle could not be identified despite proper enquiry and search being made by the plaintiff, that ultimately was not a matter the subject of any evidence or submissions at trial. Given the critical issues were agreed between the parties, and it was not the subject of evidence or submission, I will not address that matter further.
Summary of Evidence
It is uncontentious that the accident between the Finns’ vehicle and Mr Medlin’s vehicle occurred at approximately 3.15pm. The conditions were dry and fine. The stretch of Yeppoon Road where the accident took place was a straight road with two lanes separated by a painted, dotted centre line. Each lane was approximately 3.5 metres wide, bordered by painted continuous “fog” lines. The bitumen shoulders beyond the “fog” lines of each side of the roadway were 1.3 metres wide. There were gravel shoulders extending approximately 3.5 metres on each side of the road beyond the bitumen. The collision occurred outside 1600 Yeppoon Road which was the property where the Finns resided.
There was an overtaking lane which merged into a single lane approximately 1.3 kilometres from the entry to 1600 Yeppoon Road. At 1600 Yeppoon Road there was a gravel driveway from the road. It was on the opposite side of the highway from the lane in which Mr Medlin was travelling.
Photographic evidence was tendered of Yeppoon Road in the vicinity of the accident, including the highway travelling towards Yeppoon and Rockhampton, as well as the entry to 1600 Yeppoon Rd. According to the witnesses to whom the photos were shown, the state of the road is largely unchanged from what it was at the time of the accident.
The plaintiff called two factual witnesses in relation to the circumstances in which the accident occurred, Darren Medlin and Jason Spence. Jason Spence was travelling in the opposite direction to Darren Medlin along Yeppoon Road, towards Rockhampton, at the time the accident occurred.
Darren Medlin
On the day in question, Mr Medlin was travelling home to Yeppoon from Rockhampton. He had commenced a new role with a government department some four months prior. He and his family had moved to Yeppoon.[6] He was familiar with the route from Rockhampton to Yeppoon, particularly Yeppoon Road. He had travelled on Yeppoon Road many times, including when he grew up in Rockhampton. Thus, he was familiar with Yeppoon Road and the area where the accident occurred.
[6]His family had moved to Yeppoon slightly earlier than Mr Medlin.
Darren Medlin described the circumstances leading up to the accident as follows:
“Right. Now, let’s deal with the journey on Yeppoon Road. Tell us what you recall of that journey prior to the accident? I was – I was just travelling home. Pretty – pretty excited because I’d been working towards this – this job at the department for some years. You know, the traffic conditions were fine. It was – on that sort of a day there’s a lot of traffic to and from Yeppoon. So I was – I was travelling predominantly in the left lane. It’s a – it’s a two – it’s a two lane section of road for half the journey. Nearly half. I was overtaken by numerous cars. As I said, I was pretty – pretty excited with my new appointment and very proud of the fact being in public service. So I was very conscious. I set my speed control at about 98 kilometres an hour. Just continued travelling home. So there’s one more intersection that you come to. There’s a set of lights. There’s some other vehicles that come out on the – from that entry point onto the highway. Just continued home like a normal sort of journey. I was travelling behind a red car. I was keeping my distance. My safe distance. As we were approaching the – the overtaking lanes, just probably around halfway home, I disengaged my – my cruise control, because the traffic congestion was getting a bit heavier. I stayed in the left lane. Continued to follow me red car. Just kept off him. We come back out onto the single lane, and I continued behind that vehicle. As we were approaching, there’s a couple of farms on the right-hand side. Down to the left-hand side there’s – it was a point known as Mount Jim Crow. So I was – I was on and off the brakes. You know, we were only going between 85 and 95. It was slow – slow down. Speed up. Slow down. Then as I was getting closer towards – there’s a – there’s an earthworks business on the right-hand side. There’s a property, and there’s a horse place. I was looking down the highway at – just having a look at why the traffic was slowing down, and I then had a – the – the red car that I was following sort of violently ripped it off to the left-hand side of the road, and I had brought my attention directly straight back in front of my car. I then seen the white – white bumper bar, back of a white car, as I’ve – as I’ve hit the brakes and turned the steering wheel. That’s – that’s what I can remember. The – this white flash, and then the crushing of the windscreen”[7]
[7]Plaintiff’s Outline of Argument, [43].
According to Mr Medlin, he was travelling two to three seconds behind the red vehicle in front of him, which he stated was his usual practice when driving. He would pick a point, count to three, and use that as a gauge of the distance to allow behind the vehicle he was following. He stated he was a cautious driver who did not tailgate. He stated his driving practices had developed when he worked on a mine and the vehicles were fitted with tracking devices.
However, the way Mr Medlin described his distance from the red car varied. Senior Constable (SC) McLennan, an officer who took a statement from Mr Medlin in February 2015, recorded that Mr Medlin said he was two seconds behind the car in front of him. Mr Medlin’s statement referred to him being two to three car lengths from the red car. Mr Medlin also used that descriptor with the plaintiff’s expert, Mr Ruler, in addition to referring to a two to three second gap between himself and the car in front. He explained in cross-examination that the reference to car lengths in his police statement was a mistake. He also referred to the two types of measure as being pretty close. For the purposes of determining the matter, it was not contended by either side that there was any significant difference between the two measures. The reference to the different measures used, however, reflects some uncertainty as to Mr Medlin’s distance behind the red car and suggests that there was some exaggeration in his evidence that his practice of travelling two to three seconds behind the vehicle in front was something that he had done for “most of my life.”
Mr Medlin travelled in the left-hand lane when there was an overtaking lane. That lane subsequently merged to the right. Mr Medlin’s evidence was that the red car had been in front of him the whole time. He also stated a number of cars overtook him when he was travelling from Rockhampton to Yeppoon. It is unclear how the red car remained in front of him the entire time if a number of cars overtook him, however one assumes they passed the red car as well. Mr Medlin stated that he did not see any cars in front of the red car and was aware there were cars behind him, but he could not recall them.
According to Mr Medlin, the red vehicle swerved to the left and “ripped it off the road.” He identified the point at which it swerved as being near two guideposts, marked on Exhibit 1. According to Mr Ruler, the expert called by the plaintiff, that was some 81.3 metres from the driveway of 1600 Yeppoon Road. Mr Medlin stated that he saw the Finns’ car for the first time when the red vehicle swerved around their car. He stated that he did not see brake lights, or an indicator activated on the Finns’ car. He stated that he grabbed the steering wheel and turned it as much as he could and applied the brakes in the two to three second period before impact.
While Mr Medlin said he did not see any indicator being operated on the Ford Falcon utility, that was a matter pleaded in the amended statement of claim which was admitted in the defence. It was not however a matter that he was cross-examined about. Counsel for Mr Medlin referred to the fact it was a matter that was admitted.
He could not recall any details of the accident after he swerved left and braked to try and avoid the collision. He only recalled someone asking whether he was okay and the ambulance attendant speaking to him. He suffered severe injuries
In cross-examination, Mr Medlin stated that when the overtaking lane merged into the single lane, he was monitoring traffic. He agreed that at the point of the lanes merging, the red car would not have impeded his vision ahead and he could see down the highway., He, however, disagreed that if he had looked down the highway, he would have seen the Ford Falcon utility. He denied that he had failed to look. He later said that while he could not specifically recall looking down the highway, that was his usual practice.
Mr Medlin stated he maintained a safe distance behind the vehicle in front of him. According to Mr Medlin, he gave himself sufficient room behind the red vehicle, in circumstances where he had observed that the traffic was ebbing and flowing, and he had looked ahead to see what the delay was, “hoping not to see an accident”. He agreed that he disengaged the cruise control because, otherwise, he was too close to the vehicle in front. He stated he then regulated his speed manually with his brakes.

Mr Medlin gave evidence that he was familiar with Yeppoon Road, having travelled on it some hundreds of times. He was aware of the property on the right at 1600 Yeppoon Road, although he did not agree that it was a choking point for traffic. He stated that the choke point was caused when the two lanes merged into a single lane.
Mr Medlin rejected the suggestion that there was no red vehicle travelling in front of him and that he was confused. In particular, he rejected the suggestion that the only red car he saw was one parked on the left hand side of the road, some two hundred metres past the accident scene, which would have been visible when he veered left, causing his confusion.
I find Mr Medlin was an honest witness overall.
On occasions I found that he sought to cast his evidence in the best light, rather than just answering the question asked. For example, the following exchange occurred:
“Right. So you - - -?---The – the choke points that I – that I would be familiar with is coming on and off the overtaking lane. You know, as soon as you get close to that overtaking lane, excuse me, traffic accelerates. You know, did I accelerate? No. 20
But you’ve indicated earlier in your evidence that you were considering the reason for the slowing of the traffic, and you hoped there wasn’t an accident?---Mmm.”[8]
[8]T1-29/18-24.
However, I did consider his evidence suffered from reconstruction based on what he thought he would have done, rather than him recalling what had occurred. While there were certain facts which he was confident about, he was vague in terms of detail. While he stated he was monitoring traffic when the overtaking lane merged with the other lane and had looked down the line of traffic to see what was causing it to slow, he was unable to provide any evidence which suggested he recollected doing that, the only car he can recall seeing being the red car. In cross-examination he referred to “common practice”. However, when further cross-examined as to the point at which he had looked ahead down the highway when the overtaking lane was merging, he stated that:
“And you’d indicated in your evidence-in-chief that the traffic was ebbing and flowing, and you were looking ahead to see what the delay was?---Yes. I looked up – I – I looked down the line of traffic to see what the – hoping not to see an accident.
Yeah. So when you made that first observation down the line of traffic, when was that made, firstly, with respect to the merging of the two lanes about 1.3 kays from the accident site?---That’s – that’s just a common driving practice. So you – you look and you’re always checking – checking ahead. Check your distance. Check – so I would do that numerous times.
Okay. And do you have a specific recollection of checking that as you came up to the merging point? That is, two lanes to one, left to right?---At that particular point I cannot say. All I can tell you it’s my common practice to check the road down in front of where we’re going. That’s just a measure that you constantly do.”[9]
[9]T1-28/20-33.
While his evidence was generally consistent with what he told police in February 2015, and his police statement, there were differences in terms of the description of his distance from the red car which I have described above. According to the notes in the police notebook, Mr Medlin estimated he was two seconds behind the vehicle that swerved and there was approximately a five second gap before he collided with the Ford Falcon utility. His description of what occurred was more understated than his evidence in Court, insofar as he stated that the red car “veered to the left” and he then saw the stationery vehicle, at which time he braked straight away and tried to swerve to the left. In his police statement, however, he referred to the red vehicle suddenly swerving aggressively to the left.
Jason Spence
Jason Spence had been working in Yeppoon and was travelling towards Rockhampton at the time in question. He estimated he was driving at the speed limit, which was 100 kilometres per hour. He stated that he noticed a commotion “a fair way ahead of me”. He later estimated he was approximately 250 to 300 metres away from the accident. He looked up and saw a big cloud of dust. He watched while a white car (later identified to be the Ford Falcon utility) came across in front of his lane of traffic. He noticed a red car, out of the edge of the dust on the right-hand side of the road, in the gully or on the edge of the road. The red car came up onto the road and passed him. He thought the red car was unusual because it came out of the cloud of dust and out of the commotion. He stated it accelerated past him towards Yeppoon. He considered it had slowed and was accelerating. At that time, he did not see the collision or the Toyota Hilux, stating “I didn’t see that at the time of the incident. It was just a big cloud of dust.”
After he got to the site of the accident, Mr Spence pulled over to the side of the road where it was safe to do so. He stated he then saw that there was a white Toyota Hilux, as well as the white car that had come across his lane, which he identified as the Ford Falcon utility. He had not seen the white Toyota Hilux until after he had pulled over to the side of the road. The only two vehicles Mr Spence saw while driving towards the accident was the red car coming up from the gully, and the white Ford Falcon utility that came across his lane.
Mr Spence did not recall noticing any car in front of him in his lane at the time he was travelling towards where the incident occurred. He stated that after stopping at the site of the accident, he checked on Mr Medlin who was caught behind the steering wheel. He talked to Mr Medlin and obtained some information from him, including his wife’s mobile number, which he said Mr Medlin gave with difficulty. He spoke to the ambulance officers and to the police briefly.
He was not subsequently contacted by the police to provide a statement. He was first contacted for his version of the events sometime after the incident, by an investigator for insurance purposes. In cross-examination, Mr Spence described the red car, the dust, commotion and the white car coming across the lane as all arising out of the same event, rather than there being any delay between when the dust cloud was created and when the red car emerged through the dust cloud. Mr Spence did not see the red car until it emerged through the dust clouds. He did not see a red car parked to his right before the accident.
Mr Spence was an independent and candid witness. His evidence was not subject to any real challenge. I accept his evidence, but I take into account the fact that what he observed was from some distance away albeit on a flat, straight road. I note that contrary to the opening, he did not give evidence that he had seen the red car “go off to his right … into the shoulder and emerge through a cloud of dust,” although he did state the car had come from the side of the road off the shoulder which was a bit like a gully. He further stated, “And as it came out of the cloud, it was driving along the gully and then pulled up on the road and started accelerating.”
The relevant witnesses called by the defendant who were involved in or observed the accident, were Sharon Finn, Hayden Finn, Adrian Evans, Peter Crane and Hayley Jensen.
Sharon Finn
Sharon Finn was driven to Rockhampton on the day in question by her son, Hayden Finn, for medical treatment. She gave evidence that the treatment did not affect her capacity to observe vehicles in the car mirror, or to be aware of what was occurring. According to Ms Finn, she and Hayden were travelling from Rockhampton back to their residence at 1600 Yeppoon Road, where they had lived for two years at the relevant time. She stated that when they were outside their neighbour’s property, which was approximately 300 metres from their gateway, Hayden turned his right-hand blinker on, and applied his brakes a few times before coming to a stop opposite their driveway. She saw Hayden turning his blinker on and looking at his rear-view mirror. Ms Finn stated that she leaned forward quickly and looked in the left-hand side mirror and saw a white four-wheel drive Toyota Hilux coming towards them. She stated that she had commented on the approaching vehicle to Hayden, and had said “all good” while they were coming to a stop to turn right.[10]
[10]She later clarified that was just an expression of the effect of their exchange, not the words she had actually used.
According to Ms Finn, it was the practice in their family to turn their blinker on when they reached their neighbour’s property because there was no turning lane on Yeppoon Road, and it was a 100 kilometre per hour zone. She stated that she would look in the side mirror when her children were driving to see what was coming behind.
Ms Finn stated that the white Toyota Hilux was the only car she could see in the side mirror, and “there was definitely no car in front of it.” She did not see any red car, as was described by Mr Medlin. She did, however, see a red car parked approximately 200 metres further up the road on the left-hand side, while she and Hayden were waiting to turn right. Ms Finn stated that her attention was drawn to that vehicle because one of the Finns’ responsibilities in managing the property was to look after thoroughbred horses. They were kept in the paddock beside where Ms Finn observed the parked red car. People would pull over and take photos of the horses, or pat the horses, or give them food, “which is a no-no.” Ms Finn saw the red car drive off after the accident when they were standing on the side of the road, and recalled thinking “well that’s just charming. You’ve just left the scene of an accident.” She estimated that the red vehicle left within 10 to 15 minutes after the accident. Ms Finn was adamant that no car went past their vehicle on the left before the impact with Mr Medlin’s vehicle.
In cross-examination, Ms Finn stated that she was in some shock as a consequence of the accident. She said, “I was thinking about what I was having for dinner. The next thing I was facing the other way”. She clarified, however, that she did not have anything on her mind and was just sitting there waiting and watching the road.
Ms Finn’s recollection was that there were three cars coming towards them. She said she thought one pulled over to the side, but said she was a little vague on that part.
In cross-examination, she was insistent that she had looked at the left side mirror and had seen Hayden look in the rear vision mirror. She stated:
“…as we were driving towards, before we pulled up, I saw Hayden look up, look to the right, and he had his blinker on. I made sure of that. And I just leaned over quickly – looked in the left-hand side mirror. There was no other car but a white four-wheel drive. And there was definitely nothing past me on the left, before his car hit us.”[11]
[11]T2-9/13-18.
Ms Finn agreed in cross-examination that she had general discussions with Hayden about the accident but stated that she did not talk about the details of the accident with him. In that regard, she does not believe that she spoke to him about whether or not he activated the blinker but said “he had done it. I watched him do it”. She also stated that she did not talk to Hayden about whether or not he was looking in the rear vision mirror, “…because I saw him do it.”
Ms Finn also agreed that she had discussions with Mr Crane (who was looking at 1600 Yeppoon Road) after the accident. She said that discussion involved just a summary that they were hit by a four-wheel drive and that she did not believe he was watching where he went. She stated she did not believe she spoke to him about whether there was a red car. She said she had asked Hayden after the incident whether he had seen the red car, and he stated, “No. I was too busy watching the cars coming towards me.” No time frame was put as to when that occurred.
Ms Finn agreed she had not said anything about a red car to SC McLennan. In re-examination she stated however that she was not asked any question by the officer about a red car. She stated that she never said anything about the red car being parked further up the road to the police officer because it had nothing to do with the accident.
Ms Finn said that while it was not referred to in the statement that she had observed the white utility that hit them prior to the accident, she had told the police officer that she had done so when he was taking her statement. She stated that that she told the police officer at the police station that she had “looked and had seen the white car coming.” She did not know why it was not included in the statement. She was not sure whether she also said it to the police officer at the accident scene.
Ms Finn became defensive in cross-examination when she gave her evidence, although that appeared to be out of frustration and lack of familiarity with the process. She is pursuing a claim against Mr Medlin for personal injuries, and thus cannot be regarded as an independent witness. I considered her evidence was honest and that she had a reasonable recollection of what had occurred. She did not shy away from the fact she had had general conversations about the accident with Mr Crane and her son after the accident, as one would expect. While she was confident about certain matters in her evidence, she did not simply agree with matters if she did not recall the matter, such as whether she had told police at the scene that she saw the Toyota Hilux coming before the accident, and she made appropriate concessions.
I accept that there was no good reason for her to have told the police about the presence of a red car on the side of the road. The fact she had not informed the police that she had seen a red vehicle parked on the left hand side where the thoroughbred horses were is of little significance given, as she stated, it had nothing to do with the accident. She gave logical reasons for noticing the red car parked near the horse’s paddock, being that they had responsibility for the horses in the paddock. I accept that she was not asked by SC McLennan about the red car. There was no evidence from SC McLennan that he had asked whether she had seen a red car. While Mr Crane said he was asked by police at the scene about a red car, there was no evidence as to why he was asked the question at that time. Notably, at least in relation to the diagram prepared by SC McLennan,[12] a reconstruction of the accident based on what he had been told did not include a third vehicle,
[12]Exhibit 7.
Similarly, the fact that she had asked Hayden Finn whether he saw a red car after the accident is of little significance given the timing of that enquiry was not revealed.
I consider it was likely that Ms Finn looked in the rear vision mirror and saw the Toyota Hilux travelling behind. I do not accept the plaintiff’s counsel’s submission that her evidence was implausible because she would have panicked had she seen the Toyota Hilux coming down upon them. That fails to take account of Ms Finn’s evidence as to timing. Her description of complacency is explicable by the fact that her evidence was that she had looked in her mirror at the time Hayden was slowing and was putting his indicator on, which was said to be when they reached the gate of the prior property, rather than just before the collision. She estimated that the property next door was about 300 metres from their property. Her comment about thinking about what was for dinner was in the context of just prior to impact when they were waiting to turn and then finding herself facing the other way.
Her evidence as to the dangers of travelling on Yeppoon Road with no turning lane when the speed limit was 100 kilometres per hour, and the precautions taken, accord with what one would expect in terms of drivers acting cautiously when readying to turn into their driveway in such a position, particularly a mother travelling with her son. Her evidence as to watching what Hayden was doing and checking the rear vision mirror is inherently probable, given she is his mother and the fact that they lived on a busy road with a 100 kilometre per hour speed limit.
I do not infer that she was distracted and did not make the observations of Hayden, or that she did not look in the side mirror. It was not suggested to SC McLennan that she had not told him that detail when he was recalled by way of rebuttal.
Hayden Finn
Hayden was driving the white Ford Falcon utility which was hit. He was approximately twenty years of age at the time. He gave evidence that he was returning to the family property at approximately 3:15pm. He said he had regularly driven along Yeppoon Road. He stated that as they left the overtaking lane, he slowed down to let as many cars through as possible. He stated that he did that as a safety precaution coming up to their property. He stated he was travelling at approximately 90 kilometres per hour after the overtaking lane when Yeppoon Road became a single lane. When he reached their neighbour’s gate, which he estimated was 200 metres before their gate, he put his blinker on so as to notify people as early as possible that he was turning and started slowing down to turn right into their gate. He then had to stop for oncoming traffic.
He looked down to see if the blinker was on, and he was then hit from behind. He stated he was watching the traffic and looked in his rear view mirror, and saw a white utility before he turned. He stated that when he looked in the rear-view mirror, the white Toyota Hilux was approximately 50 metres behind him. He said that he had a discussion with his mother about the white vehicle while he was waiting to turn right into the property, and she had commented that there was a white utility behind them.
Hayden Finn stated that there was no red vehicle between them and the white Toyota Hilux at any point after the overtaking lane. Hayden stated that there were no vehicles that went around to the left at all. He stated that he did not see any red vehicle at all because he was watching the traffic.[13]
[13]This is consistent with what his mother stated he had told her. His evidence drew a distinction between whether there was a red car between them and the Toyota Hilux as opposed to whether he saw any red vehicle.
Hayden agreed in cross-examination that he had spoken to the police office at the scene. He agreed that he did not tell the police officer that he had seen the white Toyota Hilux prior to the collision. He denied the suggestion that the reason why he had not told the police officer that was because it was untrue. He stated that the police statement, was prepared before he attended the police station. [14] He could not recall when he had a conversation with the police officer other than at the scene. The statement was signed in June 2015.
[14]Exhibit 11.
The dangers for the Finns turning right into their driveway from Yeppoon Road with no turning lane and 100 kilometre per hour speed limit are obvious. They had lived at that residence for two years and Hayden Finn was familiar with the road. His evidence about the steps he took to allow cars to go past, braking a number of times before coming to a stop, and putting his right hand blinker on early accords with his awareness of the dangers posed by the road when he was at the neighbour’s property.
The fact he had his blinker on was supported by the evidence of Ms Jensen.
Although Hayden Finn also has a claim against Mr Medlin as a result of the accident, I found him to be a very candid witness who made proper concessions. He readily accepted that he omitted to tell the police that he had seen the Toyota Hilux prior to the collision. It does not appear that his statement was the result of detailed questioning. According to Hayden, the statement was already prepared when he attended the station and was not produced as a result of sitting with the officer and answering questions. I accept he did look in his rear vision mirror and had seen the Toyota Hilux prior to the accident. I accept his evidence that he had looked in the rear-view mirror quickly but was otherwise watching the approaching traffic coming towards them. I do not find that his recollection was affected or directed by discussions with his mother.

However, given both Ms Finn and Hayden Finn are making claims against Mr Medlin, I have considered their evidence bearing that interest in mind.
Peter Crane
Peter Crane was working at 1600 Yeppoon Road when the accident occurred. It was his uncle’s property. He had been watching for the return of the Finns, because they were bringing some screws and other materials back, which he needed to carry out the work they were doing. He stated that every now and then he would look up to see if they were coming, because they were quickly running out of screws. He stated that he saw the Finns coming and was relieved because they were going to be able to keep going with their work. He stated that the Finns were approximately 150 to 200 metres from the driveway when he looked up, saw them and looked back down. After that, he heard the collision. He jumped down from where he was working and went to the check on the Finns and the other driver. He estimated that it would have taken him five to ten minutes to get to the site of the accident. When he arrived, he checked on the Finns to see if they were okay, because they were the closest car. He then ran across to the Toyota Hilux to see if the driver was okay. He said that Mr Medlin was in agony. He noticed a mobile phone sitting half in the console and half hanging out with the screen lit up. Mr Medlin was asking for his phone.
Mr Crane said that there was so much traffic he caused the Finn’s car to be pulled off the road so traffic could keep moving and he began to direct the traffic. He stated only then did he look up the road and he then saw there were four cars parked up the road. One of them was red. He said that all the vehicles drove off after the accident. He stated that the red car that he saw was on the Yeppoon side of the accident scene, approximately 150 metres away from the accident just near a bridge.
Mr Crane stated that he did not have full vision of the road from where he was working, and that he could only see from the edge of the concrete walls down the road. He stated that he was not paying any attention to other vehicles on the road. Mr Crane did not observe the vehicles parked further up on the Yeppoon side of the road until after he had checked on the Finns and Mr Medlin. He stated that he was asked by the police officer on the day of the accident about the red car, which is why it was referred to in his police statement.
Peter Crane was a very straight forward witness. His evidence was of limited assistance given he did not observe the collision itself or have a full view of the road when he saw the Finn’s vehicle. It is of some relevance that he had observed a number of vehicles parked on the side of the road and that Yeppoon Road was very busy when he was attending the collision.
Hayley Jensen
Hayley Jensen was travelling towards Rockhampton at the time of the accident. She was driving to work. She was travelling at approximately 100 kilometres per hour as that was the speed limit. She noticed that a vehicle was stationary on Yeppoon Road when she was approximately 200 metres away, which she thought was strange. As she got closer, she observed that the car had its indicator on, and she then realised it was turning. She then noticed that there are a lot of properties along the road, so she made the connection that the car was turning into a driveway. She thought she would have been about 100 metres away when she saw the right-hand indicator in operation. She continued past the turning car and had just passed it when she heard a very loud bang. She looked in her rear-view mirror and saw that two cars had collided. She stated she was barely past the turning stationary vehicle when she heard the collision.
Ms Jensen stated that when she came towards the stationary vehicle, she did not observe a red vehicle swerve dangerously to the left, go off the bitumen surface on the side of the road and drive backwards towards Yeppoon. Nor did she see a red car embarking upon such a manoeuvre or travelling away from the accident scene when she looked in her rear-view mirror when she heard the collision. Nor did she see a cloud of dust as was observed by Mr Spence.
Ms Jensen recalled speaking to an investigator from a loss adjustor’s office. She agreed that she would have told the loss adjustor that she was not paying attention to other vehicles on the roadway at the time, because it was quite busy. She agreed she would have also told the loss adjustor that she did not recall seeing Mr Medlin’s vehicle that hit the Finn’s vehicle. In relation to her evidence that she had not seen a red car, she stated that while she may have advised the investigator that she was not paying attention as to whether or not there were other cars at the time, that “I imagine that I would recall a vehicle wildly swerving around a car, because that would be something that I would recall and be worried about my own safety for if that vehicle was about to hit me. That’s probably a little bit different to noticing general road traffic.” That observation is consistent with her being placed on alert when she saw a vehicle which was stationary.
Ms Jensen was an impressive alert witness who gave cogent reasons for observing the Ford Falcon utility being stationary and also as to why she would have thought she would have observed a vehicle swerving around the Ford Falcon utility even though she agreed that she was not taking notice of vehicles other than the Ford Falcon utility.
Adrian Evans
Mr Evans also gave evidence. His evidence was subject to considerable challenge in cross-examination.
On the day in question, Mr Evans stated that he was driving back to Yeppoon, after he had finished teaching at Allenstown School. He stated that he was coming off the double passing lane when the white Toyota Hilux overtook him. He thought the Toyota Hilux was going a bit too fast. He stated he was doing on, or just under, 100 kilometres per hour. He stated that he knew his speed because he had put his cruise control on when the Toyota Hilux overtook him. He saw it approaching another utility very fast. He stated that he observed the first utility slow down as if it was looking for a turn off, although he did not see brake lights or an indicator. Mr Evans noticed Mr Medlin’s white Toyota Hilux was travelling fast and drawing away from him. The next thing that Mr Evans saw was the Toyota Hilux driving straight into the back of the Ford Falcon utility, which then spun 180 degrees. He said he could see the accident “vividly in front of me like a movie.” He did not see Mr Medlin’s vehicle swerve or slow down, nor did he see a red vehicle between Mr Medlin’s vehicle and the Ford Falcon utility. He stated that there was nothing obstructing his view.
Mr Evans pulled up just past the accident, having driven through the two vehicles, and rang “000.” He estimated he pulled up 150 metres away from the accident. As he saw other cars also pulling up, Mr Evans did not stop because he had to pick up his granddaughters from school.
Mr Evans gave two estimates of his distance from where the collision occurred, one of 200 metres and one of 350 to 400 metres. He stated he had just enough time to start to brake. Mr Evans saw a lot of debris had fallen off the Toyota Hilux onto the bitumen. He had to concentrate for the last second or so on getting his wheels either side of a fairly large object on the side of the road.
Mr Evans thought that he did not have a conversation with the police officer until some six months after the accident. He said that a police officer did ring him and asked him about being the first person to make an emergency call, and said that they wanted him to make a statement. He accepted that it could have been on the evening of the accident.
Mr Evans stated he could see the utility that got hit the whole time, because he was contemplating where he would pass the vehicle if Mr Medlin passed it.
Mr Evans stated in cross-examination that he had a pretty good memory of what he saw on that day and could “see it vividly in front of me like a movie”. He stated that he had given a version to the insurance adjustor in January 2017 which was pretty much accurate.
Mr Evans agreed he had signed a police statement in May 2015. Mr Evans stated that he had later gone into the Yeppoon Police station and signed a statement. He said that the statement had already been typed out for him to sign. He said that when he went into the police station, the girl behind the counter had passed him the statement and said “sign here,” which he did. No explanation was given to him about the statement. It was put to him in cross-examination that SC McLennan took his statement from him when he attended the station, which he denied, saying the statement was already there to sign. In that regard, his recollection proved to be correct and was supported by the evidence of SC McLennan in that regard.
He said that having re-read the statement, he found that there were several inaccuracies in the statement, including the date of the accident, which was said to be 2014 not 2015.
He was taken through his statement in cross-examination. He stated that paragraph 5 of the statement, which stated that he could not see the other utility prior to the accident, was incorrect. He stated he could see both the Toyota Hilux and the Ford Falcon utility. He stated that he had also already seen the other white utility some seconds before Mr Medlin went past. He stated that paragraph 6 which states that “I did not see any other vehicles” was correct insofar as he did not see any other vehicle at the time of the accident. He stated that paragraph 7, which referred to him “waiting on scene until emergency services arrived” was incorrect, because he had to go and get his granddaughters. He stated he had a conversation with a police officer, but it was not at the scene of the accident. He said he received a call from a police officer saying, “You were the first person to make an emergency call’ and wanting him to make a statement and go in and sign it at some stage.
He accepted he could have spoken to a police officer on the evening of the accident although he could not recall it.
While he agreed he would have told the police officer he was travelling on Yeppoon Road towards Yeppoon and that he was travelling behind a Toyota Hilux, he did not agree that he told the police officer that the Toyota Hilux was travelling quickly but he did not think the Toyota Hilux was speeding. He also disagreed that he said “All I saw was his vehicle hit another utility, but I couldn’t see the other ute before the accident,” because that was not correct and he could see the utility all the time.
SC McLennan gave further evidence by way of rebuttal to the above. He stated that he typed the matters in paragraph 84 directly into the police system when he spoke to Mr Evans that evening.
Mr Evans said that he was not really happy with his statement at the time he signed it. He said that there was not enough detail in it, and he should not have signed it. He said he didn’t think someone would put something in front of him, especially a police officer, that wasn’t true. He said, looking back, he realised there were things in the statement that weren’t true, and he should not have signed it. Mr Evans said he sent an email to one of the lawyers after he was sent a copy of the police statement, stating he was not happy with it.
He said that he did not read the statement at the time he signed it. The only thing he noticed at the time was the fact that the statement said his occupation was unknown. He couldn’t understand that because he had been a teacher in the district for a long time. He just glanced at the statement and signed it. He thought there was a lack of detail in it. He agreed that he was careless. He noted that the statement was brief, but he did not read it through and did not even notice that it was the wrong date. He stated that he did not read paragraphs one to eight of the statement. He stated that if he had read it, he would have corrected it at the time, but he did not. He further stated he didn’t sign it knowing it contained false statements.
Mr Evans agreed that when he spoke to Mr O’Sullivan and his instructing solicitor on 21 October 2020, he had described the car that overtook him as a grey car which was a sedan. He stated that was the first time somebody had spoken to him about the accident for six years, and he had not read any of his statements. He stated that when he read his statements, he realised it was a white utility. In that regard, it is apparent Mr Evans refreshed his recollection prior to giving evidence from a statement provided to an insurance assessor.
Mr Evans agreed he told Mr O’Sullivan and his solicitor that he was one kilometre behind Mr Medlin. He said that he was approximately one kilometre behind Mr Medlin after he had passed him. He stated that Mr Medlin had accelerated past him. He stated, however, that he was much closer to Mr Medlin when the accident occurred. He stated that he probably would have been about 300 to 400 metres away. That would suggest Mr Medlin was not speeding, or Mr Medlin had slowed down.
Mr Evans rejected any suggestion that there was a red vehicle that swerved left onto the shoulder in front of Mr Medlin. Mr Evans stated that the only vehicle that he saw swerve to the left was Mr Medlin’s Toyota Hilux after he collided with the other vehicle. He rejected the suggestion that there was a red vehicle that went through a cloud of dust and disappeared into the horizon.
Mr Evans said that the whole incident happened so quickly, and that he did not have time to stop before running over a windscreen, which had popped out and was lying on the road, even though he estimated that he saw the accident when he was approximately 200 to 300 metres away and when he was travelling at 98 kilometres per hour. He stated that he thought at the time, the best approach was to go through the accident site because there was a clear run up the road, and to try and straddle whatever was on the road and then pull up a safe distance further down the road so he did not cause another accident.
Mr Evans could not recall seeing another vehicle coming towards him from Yeppoon at the time of the accident. He saw a vehicle approximately five minutes after the accident, which stopped on the left-hand side of the road having gone through the accident.
Counsel for Mr Medlin contended that Mr Evans was an unreliable witness and to the extent that any weight could be given to his evidence at all, it should only be to what he told SC McLennan on the evening of the accident over the telephone. Counsel pointed to the version of events provided by Mr Evans in Court, compared to what SC McLennan had recorded that Mr Evans had said in a telephone conversation with him that evening. SC McLennan recorded that Mr Evans had stated that he saw the collision, he had not seen the Ford Falcon utility before the collision and that the Toyota Hilux wasn’t speeding. He then signed a statement reflecting those matters. He denied, however, that was what he had told police.
There was evidence that Mr Evans’ recollection of events was affected by the passing of time given his confusion as to the vehicles when he misdescribed Mr Medlin’s car as grey and a sedan when he spoke to Mr Medlin’s legal team and his differing estimates of distance. Mr Evans attributed this to the fact that he had not revisited the events of 2015 for years or had not re-read his statement, which he had given to a loss assessor in 2017, before he spoke to Mr Medlin’s legal team.
There is no question of Mr Evans’ honesty, but rather a question arises as to the reliability of his evidence given the matters raised in cross-examination where he has seemingly departed from initial statements made to the police on the day of the accident and his signed statement and his confusion when he spoke to the plaintiff’s legal representatives. There is no doubt his evidence suffered from a level of dramatization in some of his descriptions of what occurred, suggesting some exaggeration in his evidence. His estimations of distance, particularly from the collision, which changed during his evidence, could not be regarded as accurate. However, there are features of his evidence which are corroborated by other witnesses’ recollections and are matters of which he would not have been aware if he had not made the observations that he gave evidence about.
I am not satisfied that all Mr Evans’ evidence should be treated as unreliable, particularly his statements made closer in time to the accident. He had no link to any party and some of the things described in his evidence were supported by other matters.
To the extent his recollection was that he had not told SC McLennan the Toyota Hilux was speeding and he told him he had not seen the utility prior to the accident, I accept that was what he had told SC McLennan who gave evidence that he typed what he was told contemporaneously into the police system.
I accept Mr Evans’ evidence however that it was a mistake that he told SC McLennan that he had not seen the utility prior to the accident and it may have been the result of a misunderstanding, given the phone call did not take place until the evening of the accident when one would expect both parties to be tired.
While Mr Evans may be fairly criticised for not paying closer attention to the contents of his statement before signing it, his evidence that it was just at the front counter for signing, and that SC McLennan did not take him through the statement and he was told to sign it by the officer on the front desk, was supported by SC McLennan. He also provided compelling reasons to support the fact that he rang 000 after observing the collision, but did not speak to police at the scene, even though his statement stated that he waited at the scene until emergency services arrived, namely that he had to pick up his granddaughters from school. Mr Evans’ complaint that the statement lacked detail is evident from the statement itself. Unfortunately, in the present case, it is evident that the police involved were overstretched at the time and the investigation and taking of statements appears to have had been given less attention than it warranted. Therefore, I have attached less significance to what was said in police statements than what I otherwise would have. It also contained obvious errors, such as the date of the accident, which supports the fact that Mr Evans did not read the statement in any detail before signing it. To an extent, this can be explained by the fact that the statement was just handed to him to sign some six months after the accident, and he was not taken through it, nor was the significance of signing it explained.
I accept that he had seen the Ford Falcon utility and had seen it slow down and come to a stop. The description is also consistent with the evidence of the Finns that the Ford Falcon utility began to slow at the neighbour’s gate before it came to a stop and the evidence of Ms Jensen to the extent that she saw the vehicle when it had come to a stop. The fact he stated he had seen the Ford Falcon utility earlier when there were still two lanes correlates with what one would reasonably expect he could have seen when there were two lanes, particularly when they were joining as was conceded by Mr Medlin himself.
I do not however accept his evidence that Mr Medlin may have been speeding at the time of the accident. Although he had his cruise control on, his evidence that he gained on Mr Medlin suggests that Mr Medlin was not speeding at all, or that he had slowed his speed as he suggested.
Given Mr Evans was coming from behind, I do give some weight to his evidence that he saw no other vehicle, other than the Toyota Hilux, prior to the collision and that he did not see a red vehicle swerving out behind the Toyota Hilux. While any vehicle travelling in front of the Toyota Hilux may well have been obscured by the Toyota Hilux, it is likely that if a vehicle had swerved suddenly around the Ford Falcon utility, it would no longer have been obscured by the Toyota Hilux and would have been visible to a vehicle travelling behind. It is also likely that if it had “ripped across the road”, as described by Mr Medlin, it would have caught Mr Evans’ attention. That is given some support by the fact that Mr Evans saw Mr Medlin veer left, which is consistent with Mr Medlin’s version of events and the opinion of Dr Grigg. He also stated the Toyota Hilux went off the bitumen onto the grass verge, which is consistent with the evidence of SC McLennan and Mr Crane.
Other witnesses
Kylie Medlin

The plaintiff also called Kylie Medlin. She did not witness the accident. She described her husband’s driving practices. She gave evidence that she had been a passenger in vehicles driven by her husband over many years, including on country roads. She described his driving as “safe, conscientious, aware of his surroundings.”[15] She stated, “He never travels too close to vehicles.” According to Kylie Medlin, he is always three seconds away from vehicles, and that “he doesn’t speed or anything like that.”[16] Her evidence was not subject to challenge and was relied upon as evidence of habit. It is of limited relevance, but I do give her evidence of some weight.
[15]T1-45/19.
[16]T1-45/25.
Senior Constable McLennan
SC McLennan, one of the attending officers at the accident, was also called to give evidence. He stated that he took some notes of what parties had described occurring at the scene of the accident, although they were fairly scant. There is a good explanation for that. SC McLennan explained that the police had no other support at the time he attended the accident, due to officers being diverted to another incident. SC McLennan and his partner therefore had to deal with the traffic, and were not able to carry out extensive investigations of the accident. Nor did he appreciate that was of greater importance than was appreciated, given he was not aware that Mr Medlin had been badly hurt. By the time SC McLennan arrived, the Ford Falcon utility had been shifted off the road towards 1600 Yeppoon Road. The Toyota Hilux was also off the road, on the left-hand side on the gravel. The evidence supported the fact that is where it had come to a stop, whereas the Ford Falcon utility had been pushed off the highway. SC McLennan produced a diagram showing where the vehicles might have collided,[17] and where they ended up after the event. The diagram did not make reference to the red car. It depicted the Toyota Hilux colliding with the back of the Ford Falcon utility and ending up on the shoulder of the road off the bitumen. That is not a matter of any great weight, given the lack of investigation at the time.
[17]Exhibit 7.
He contacted some of the witnesses to the accident later on the evening of the accident, which included Mr Evans. That appeared to involve making a cursory note on the basis of a phone conversation, rather than taking a detailed statement.
SC McLennan gave candid evidence, but it was of limited assistance given the lack of investigations done at the scene of the accident and the limited details taken from witnesses at the scene of the accident.
Reports of experts
Both Mr Medlin and the Nominal Defendant relied on expert reports, to a limited extent. Neither report was given much emphasis by either side nor was either expert cross-examined.
The plaintiff provided the report of Mr John Ruler. According to what Mr Medlin told Mr Ruler, he saw the red hatchback swerve and the stationary Ford Falcon utility at the point of two guideposts, just west of the driveway at 1600 Yeppoon Road. Mr Ruler measured that distance to be 81.3 metres from the point of the collision.
According to Mr Ruler, accepting that the Toyota Hilux was travelling at a speed of between 85 and 95 kilometres per hour, it would have taken the Toyota Hilux 3.1 seconds (if travelling at 95 kilometres per hour) to 3.4 seconds (if travelling at 85 kilometres per hour) to travel 81.3 metres. In order to stop without taking into account reaction time, Mr Ruler estimated it would have taken 50.8 metres to come to a stop, or 3.4 to 3.8 seconds.
The defendant provided the report of Dr Frank Grigg. He considered that there was insufficient evidence to do any meaningful calculation as to the speed of Mr Medlin’s vehicle, but noted that, based on the damage sustained, it was unlikely that Mr Medlin was exceeding the speed limit. Dr Grigg considered that Mr Medlin may have been travelling at a speed that was less than 95 kilometres per hour. He stated that if the Toyota Hilux was two to three car lengths, or 10 to 15 metres, behind the hatchback and travelling at between 85 to 95 kilometres, it would only have been half a second from when the hatchback swerved until it reached the stationary Ford Falcon utility. Given reaction times are generally less than one second, he considered there is a low probability that Mr Medlin would have been able to implement any evasive action under those circumstances. It is difficult to marry up Dr Grigg’s calculation and Mr Ruler’s calculation. Dr Grigg does not set out the basis of his calculation that Mr Medlin would have had only a half a second reaction time after the red hatchback swerved before hitting the Ford Falcon utility, even though the plaintiff’s own version of events was that the red hatchback swerved some 80 metres before the point where the accident occurred. Dr Grigg does not set out whether his calculation is based on the same or a different distance. Although little turns on it, I prefer Mr Ruler’s evidence in that respect.
He considered that the damage suffered by the two vehicles indicates that Mr Medlin did make some movement to the left prior to colliding with the Ford Falcon utility.
Onus of Proof
The onus lies with the plaintiff in the present case. Proof on the balance of probabilities requires actual persuasion.[18] In terms of the approach to be adopted, some assistance is derived from Dixon CJ in Jones v Dunkel,[19] where his Honour stated that:
“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd which is referred to in Holloway v McFeeters by Williams, Webb and Taylor JJ. The passage continues: “All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.” But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
[18]Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [44]-[52] per McDougall J (with whom McColl JA and Bell JA agreed).
[19](1959) 101 CLR 298 at 304- 305.
One of the key factual underpinnings of the plaintiff’s case is the presence of a red car between Mr Medlin and the Finns. Unsurprisingly, as is evident from the above, that requires considering different snapshots of what occurred from different perspectives of various witnesses and weighing up and, to the extent possible, reconciling differing recollections of witnesses from some time ago of an event that took place in a matter of seconds. To the extent evidence of the various witnesses was challenged, cross-examination on behalf of both parties was directed to the reliability of the evidence given, not generally the honesty of the witnesses.
Issue 1 -Was the plaintiff following a red car that swerved late and dangerously?
Although the parties frame the above issue as if it is a single issue, there are two sub-issues which require consideration, namely:
(a)Was there a red vehicle between the Toyota Hilux and Ford Falcon utility?
(b)If so, did the red car swerve late and dangerously?
Was there a red vehicle?
Contentions
It is contended on behalf of the plaintiff that that Mr Medlin’s version of events that there was a red vehicle should be accepted. The plaintiff contends that Mr Medlin’s evidence is supported by the fact he is an experienced driver, familiar with the roads, and by the evidence of what is said to be his habits in driving, namely that he would not tailgate cares, would drive two to three seconds behind cars and would not speed.
The plaintiff contends Mr Medlin’s evidence is also supported by the evidence of Mr Spence. The plaintiff submits that the dust seen by Mr Spence was created by the red car and probably carried by wind at the scene and, for that reason, appeared as was observed by Mr Spence. According to the plaintiff, in any event, it does not matter whether the dust cloud was carried from the collision between the vehicles or from the red car going off the shoulder of the road. This is said to be the case because Mr Spence’s evidence supports the fact that the red car was close to the collision point, which was consistent with Mr Medlin’s evidence. It contends that because of the timing and placement of the red vehicle, as observed by Mr Spence, it is reasonable for the Court to infer that the red car must have been involved in the accident in the way that Mr Medlin stated.
The plaintiff contends that, in relation to the other defence witnesses who did not see the red car, Mr Evans’ evidence was unreliable and Ms Finn’s evidence should be rejected in so far as she stated she looked in her rear vision mirror prior to the accident. The plaintiff submits that the evidence of Ms Jensen and Hayden Finn is not inconsistent with Mr Medlin’s evidence when viewed in context. According to the distances Mr Medlin had worked out with Mr Ruler, the expert who gave an opinion on behalf of Mr Medlin, 80 metres prior to the accident the red car had moved over violently to the left of the Toyota Hilux. The plaintiff therefore contends that if the Toyota Hilux was 50 metres behind the Ford Falcon, when Hayden Finn said he had looked in his rear vision mirror, he would have seen the white utility, but not necessarily the red car, given it had swerved to the left by that stage. Mr Medlin’s counsel also contends that by the time Ms Jensen looked in her rear vision mirror after hearing the commotion, the red vehicle would have been disappearing into the horizon. The swerving of the red car would have been initiated some 80 metres prior to the point of collision, given it takes approximately three seconds to travel 80 metres.[20] The red vehicle would have been well on the other side of the collision heading towards Yeppoon. Counsel for Mr Medlin also submitted that Ms Jensen would not necessarily have seen the red car swerving around the Ford Falcon utility because she was not looking at other cars apart from the Ford Falcon utility.
[20]Assuming the red car was travelling at a speed of 85 kilometres per hour to 95 kilometres per hour.
As to Mr Crane’s evidence, it is submitted on behalf of the plaintiff that it did not add anything because he did not have an opportunity to have a good view of the road. As to Mr Evans, the plaintiff submits that his evidence is unreliable, given the inconsistency of the versions of events given by him at different times. Counsel for Mr Medlin contends that the Court could, at best, only have regard to the version of events Mr Evans gave to SC McLennan, given it was provided a relatively short time after the events in question. This version of events was that that Mr Evans did not see any car other than the Toyota Hilux.
The plaintiff contends that Ms Finn’s version of events in relation to looking in the side mirror and not seeing the red car is also unreliable. The plaintiff relies on the fact that she omitted telling police that she had seen the white Toyota Hilux before the accident, or that she had looked in the left-hand side mirror when giving her statement. The plaintiff further submits that her evidence is implausible because if Ms Finn had looked in the side mirror, she would have been thinking that they were in trouble, rather than thinking about what they were going to have for dinner, as she had stated in her evidence.
The Nominal Defendant, however, contends that the Court cannot be satisfied on the balance of probabilities, that there was a vehicle, red or otherwise, present between Mr Medlin’s vehicle and the Finn’s vehicle, which was causative of the accident, given the evidence of the Finns, Ms Jensen and Mr Evans. The Nominal Defendant submits that Mr Medlin’s evidence should not be accepted. The Nominal Defendant contends that Mr Medlin is confused, or has a false memory as to what occurred on the day in question.
In particular, the Nominal Defendant contends that the red car that Mr Spence saw cannot have been the car Mr Medlin was referring to, because if it was a red car in front of Mr Medlin, it would have been well clear of the accident.
According to the Nominal Defendant, it is not open on the evidence for the Court to reasonably infer that the red car caused the commotion. It contends that the red car had to be travelling at least at the same speed as Mr Medlin. On that factual scenario, the alleged late violent manoeuvre done at speed by the red car some 80 metres before the point of collision would have resulted in it going past the Finn’s vehicle before the cloud of dust seen by Mr Spence could be created. It contends that there is no evidence to support the plaintiff’s submission that the cloud of dust must have moved with the wind. It also submits that, accepting Mr Medlin’s sequence of events, the red car would have been emerging in front of the Ford Falcon utility as Ms Jensen approached the stationary Ford Falcon utility. The defendant contends that the red car would have therefore been seen by Ms Jensen if it was present. Ms Jensen, however, did not recall any red vehicle. She stated that had there been a red vehicle acting in the way that was put to her, she considers she would have recollected that. The defendant submits that the red car seen by Mr Spence could have been an additional red car to that observed by Ms Finn that had been parked on the side of the road, or one that drove through the accident.
Findings of Fact
There is no question that on the day of the incident, the conditions on Yeppoon Road were clear and dry. The accident occurred at approximately 3:15pm. The road in the relevant area was long and flat. A number of photographs were admitted into evidence showing the nature of the road (which witnesses stated had not changed significantly between the time of the accident and the time when the photos were taken). No witness suggested that they had difficulty making observations because of the position of the sun.
As set out above, what occurred on the day in question relies on the recollection of witnesses. While I consider that all witnesses were honest and generally reliable, as is often the case with events that take place in a matter of seconds, what witnesses saw, and their recollections, are piecemeal.
As I have stated Mr Medlin’s evidence up until the point of impact was generally consistent with what he told police in February 2015, and what was then recorded in his police statement. However, Mr Medlin told police there was approximately five seconds between when the car swerved and when he hit the Ford Falcon utility. The description of the swerving by the vehicle in front of him was also not as dramatic. Nothing was made of these points of difference in cross-examination.
There was no evidence suggesting that Mr Medlin was distracted by anything prior to the point of impact. While there was evidence from Mr Crane that the mobile phone screen had been lit up and Mr Medlin had been asking for it when Mr Crane went over and checked on him after the accident, the evidence was that the mobile phone was hands free and no phone records were produced suggesting he was on the phone at the time. I do not find that there is any basis for inferring that Mr Medlin was on the phone at the time of the accident. As to whether he was travelling at excessive speed, he stated that he was not. The only evidence suggesting that he may have been travelling at excessive speed came from Mr Evans. Dr Grigg stated that the damage to the vehicles did not suggest that Mr Medlin was travelling at a speed greater than 95 kilometres per hour. I do not accept Mr Evans’ evidence insofar as he suggested that Mr Medlin may have been travelling in excess of the speed limit. Mr Evans suggested Mr Medlin had been travelling at excessive speed when passing him and while pulling away in the overtaking lane. This was based on Mr Evans having set his cruise control at 98 kilometres per hour. The best evidence that was available, based on questioning of Mr Medlin, was that the overtaking lane was 1.3 kilometres away from the site of the accident. I do not consider Mr Evans could reliably estimate Mr Medlin’s speed at the time of the accident, particularly given it appears to be contrary to what he told police and inconsistent with Mr Evans’ evidence that Mr Medlin was one kilometre ahead of him, having passed Mr Evans in the overtaking lane, but only 200 to 300 metres ahead when the accident occurred. Given Mr Evans stated he didn’t have time to stop, and drove through the debris after the collision, I consider the estimate of 200 to 300 metres is likely to be the more accurate estimate. If Mr Medlin had been speeding past Mr Evans earlier, he must have slowed his speed for Mr Evans to close the gap between them to that extent.
Mr Medlin was not challenged on his evidence that he generally travelled two to three seconds behind the car in front of him. Nor was Mrs Medlin’s evidence to the same effect, based on her observations while driving with Mr Medlin, the subject of challenge. That evidence generally supports the fact that Mr Medlin is in the habit of being a careful driver who maintains a reasonable distance from the car in front of him. However, while evidence of habit is admissible and can be relied upon, there were witnesses to what occurred in the the present case and Mr Medlin had some recollection of what occurred. This is in contrast to the case of Kerle v BM Alliance Coal Operations Pty Ltd & Ors,[21] where McMeekin J took into account evidence of the plaintiff’s driving where there was no direct evidence of what occurred. Nor is the evidence of habit of the strength of that considered in Pell v R,[22] which was of religious ritual and practice.[23] Nevertheless it is something to which I have regard in assessing the evidence.
[21](2016) 262 IR 381; [2016] QSC 304.
[22](2020) 94 ALJR 394.
[23]Pell v R (2020) 94 ALJR 394 at [93].
While Mr Medlin’s evidence as to what occurred is clearly possible, I am not persuaded that the collision occurred such that the red car was present between Mr Medlin’s vehicle and the Finns’ vehicle. In my view while he was an honest, his memory of what occurred is not in fact occurred. While Mr Medlin was clear in his recollection that he was travelling behind a red car, and that the red car suddenly veered to the left without warning, his evidence of what occurred, and the presence of the red car, is not generally supported by other witnesses, including Mr Spence.
While Mr Spence gave clear and unchallenged evidence, which I accept, his evidence as to what he observed, particularly the emerging red car, I am not persuaded it was the red car which Mr Medlin said he observed in front of him. While the fact he saw a red car in proximity to the accident superficially gives support to Mr Medlin’s version of events, upon proper analysis, the sequence which he described does not support Mr Medlin’s evidence.

According to Mr Medlin, he was maintaining some two to three car lengths, or two to three seconds, behind the red car, which would be a distance of approximately 10 to 15 metres according to Mr Ruler. His recollection was that the red car swerved some 80 metres before the collision occurred, referencing guideposts along the road, and went off the road. If that is so, even taking into account the red car swerving, assuming[24] it was travelling at approximately the same speed as Mr Medlin, it would have been some distance in front of the Ford Falcon utility by the time that the accident occurred, not just emerging through a cloud of dust at the same time as the Ford Falcon utility spun across the road.
[24]As one would infer from Mr Medlin’s evidence if the red car was present.
It is submitted on behalf of the plaintiff that the cloud of dust was created by the red car, and that it travelled forward with the wind. While Mr Medlin’s evidence was that the red vehicle went off the side of the road. There was no evidence as to whether it travelled right to the edge of the bitumen, or onto the gravel shoulder. Nor was there any evidence of the weather conditions to support a suggestion that the wind moved the dust cloud forward with the red car to explain the appearance of the red car on the premise it created the cloud of dust. Even if the red car had gone off the road and travelled on the side of the road which could have affected how quickly it would have returned to the marked lane, but it is likely that it would have still been well past the Ford Falcon utility by the time the accident occurred, given the red car was 10 to 15 metres in front of Mr Medlin and Mr Medlin stated he was at the guide posts when the red car swerved, some 81 metres before the Ford Falcon utility
While Mr Spence was clear that there was a cloud of dust, he could not give evidence as to the cause of the dust, nor its direction. As the defence submitted, there was no evidence supporting the plaintiff’s submission that wind had caused the dust cloud to travel, nor that it was caused by the red car. Mr Spence stated the dust cloud, the white car and the red car were all part of the same event. However, earlier in his evidence, he described having seen a big cloud of dust, a white vehicle move across the lane that was in front of him and “out of the edge of the dust on the right-hand side of the road in the – in the gully or …the edge of the road there was a little red car that came up … onto the road and passed me.” He also described the vehicle as having slowed and was accelerating. According to Mr Medlin, the red car “sort of violently ripped it off to the left-hand side of the road”, which would suggest if the red car was the one observed by Mr Medlin it would not have been slowing down as Mr Spence observed. It is also unlikely that the red car would have continued to keep driving on the gravel shoulder for some distance given the evidence of Ms Finn and Mr Crane, which I accept, that cars were parked on the side of the road some 200-300 metres from the point of collision.
If the cloud of dust was created by the collision of one of the cars involved in the collision, the red car would have been well past the vehicles when they collided, and it would not have been just coming through the cloud of dust. In that regard, it is more likely that the cloud of dust was created by the spinning of the Ford Falcon utility which Mr Spence observed spinning through the cloud of dust or the Toyota Hilux, which drove off the bitumen onto the side of the road where it came to rest, as was identified in the photographs taken by SC McLennan and his diagram reconstructing the accident.[25] Again if that had been the case the red car would have been well past the collision by that time, not coming out of the dust at the same time as the collision occurred.
[25]Exhibit 5.
While the plaintiff suggested that the proximity of the red car to the accident regardless of whether the dust is caused by the red car or the collision supports Mr Medlin’s version of events, there are other plausible explanations for the sighting of a red car in proximity to the accident that was not the red car described by Mr Medlin. While the colour of the car described by Mr Medlin and Mr Spence was red (although the statement of claim referred to it as being maroon or red), there was no other evidence to suggest it was the same car such as a similar model. Mr Medlin described the car as a small red hatchback, whereas Mr Spence referred to a little red car. There was evidence not only from Ms Finn but also from Mr Crane, which I accept, of cars parked on the side of the road near the horses and further up. While the red car observed by Mr Spence could not have been the red car observed by Ms Finn or Mr Crane,[26] given Mr Spence’s description that the red car he saw came up from the gully and then accelerated away,[27] Mr Crane observed other cars and it is open to infer that there could have been another red car that was parked somewhere on the side of the road near where the collision occurred and that it came back onto the highway at about the same time as the accident occurred. That is supported by the fact that he saw the car come out of the gully at the side and it was accelerating onto the road past him.
[26]As both stated the car they were referring to left after the collision had occurred
[27]Given both Ms Finn and Mr Crane stated that the red car left after the accident had occurred.
The fact that the red car observed by Mr Spence is not the vehicle described by Mr Medlin is also supported by Ms Jensen’s evidence. Although she focussed on the Ford Falcon as she was approaching the scene, and not on any other vehicles, I accept her view that it is likely she would have observed a red vehicle suddenly and dangerously swerving around the Ford Falcon utility, which based on Mr Medlin’s evidence as to the sequence of events, is likely to have occurred just before Ms Jensen passed the Ford Falcon utility, given her evidence she had just passed the Ford Flacon utility when she heard the bang. While she stated that she had not been focussed on other vehicles when she resolved why the Ford Falcon utility was stationary, her attention being drawn to the Ford Falcon utility that was stationary on a highway where the speed limit was 100 kilometres per hour shows she was alert to what was happening on the highway.
Similarly, had a red car suddenly swerved around the Ford Falcon utility, it is likely it would have moved outside the line of the Toyota Hilux and Mr Evans would have been able to see it, given he was travelling behind the Toyota Hilux on a straight flat road and looking ahead. Even if one only accepted what he said to SC McLennan as being accurate, which I have not, he would, given his position, likely have observed a red car violently swerving to the left to the edge of the road. The fact he did not see any vehicle, other than the Toyota Hilux, further supports the fact that there was not a red car travelling in front of the Toyota Hilux immediately before the accident that violently swerved to the left.
Ms Jensen and Mr Evans are both independent witnesses who had no interest in the outcome of the litigation. They both had clear views of what occurred in the lead up to the collision and in Mr Evans’ case of the collision and Ms Jensen’s case before and immediately after the collision. As I have set out above the evidence of Mr Spence who was also an independent witness does not give significant support to Mr Medlin’s recollection of events as I am unpersuaded that the red car observed was likely to have been the red car Mr Medlin thought was in front of him.
Although I have approached the evidence of Ms Finn and Hayden Finn with circumspection given their litigation arising out of the accident the evidence of Ms Finn provides further support to the fact there was not a red car present between Mr Medlin’s car and their car.
The absence of the red car is also supported by the evidence of Ms Finn. As was conceded by the plaintiff’s counsel, if Ms Finn had looked in the side mirror as she said she had, which I have accepted, it is likely she would have seen the red vehicle if it was travelling behind her.
While Hayden Finn did not see a red car, I do not give that great weight as it is possible that he would not have seen it if such a red car did exist. He estimated that he looked in his rear vision mirror and saw the Toyota Hilux approximately 50 metres away, by which time the red car would, on Mr Medlin’s evidence, have swerved away to the left.
Even if I did not accept the evidence of Ms Finn that she looked in the side mirror I would not have reached a different conclusion for the reasons set out above.
In all of the circumstances, I am not persuaded, on the balance of probabilities, that Mr Medlin’s recollection that there was a red car between Mr Medlin and the Finns’ vehicle, which swerved suddenly in front of Mr Medlin just prior to the accident, is accurate. While I have had regard to his evidence, and that of Mrs Medlin about his usual driving practices, and the fact that he had travelled the road many times and that he was not speeding, I have given greater weight to the direct evidence of witnesses who observed the accident and did not support and in some cases contradicted his version of events. Even the most cautious of drivers can have lapses in concentration and have accidents. Although there was no evidence of any distractions and Mr Medlin stated he was following the flow of traffic, given Mr Medlin had recalled driving home being very excited about his new job and thinking about how proud he was to be working with the public service, he may have been lost in thought on a road he knew well, rather than focussing on what was ahead of him. I consider that it is more likely that he was confused about the presence of the red car in front of him, or that he rationalised what occurred on the basis of the involvement of the red car and convinced himself that was what happened when reconstructing the events. As I set out above there was evidence of reconstruction in the evidence he gave. Although his evidence was that he had not seen a red car parked on the side of the road, he did not recall the point of impact and what happened immediately after and it is possible he saw a red car parked on the side of the road, which stuck in his mind or saw one pass through after the accident.
I find that there was no red car involved in the accident, and that when Mr Medlin realised the Ford Falcon utility was stationary, he swerved to the left to attempt to avoid the accident, which was unsuccessful. My answer to issue one is, therefore, no.
Given my answer, it is unnecessary to deal with the remaining issues which the parties identified.
Conclusion
I do not find that there was another vehicle in front of Mr Medlin behind the Ford Falcon utility which swerved to the left, causing Mr Medlin to collide with the Ford Falcon utility. I will therefore dismiss the claim.
I will list the matter at a date convenient to the parties for submissions to be made as to costs.

CITATION:	Medlin v Nominal Defendant [2021] QSC 186
PARTIES:	DARREN GEORGE MEDLIN (Plaintiff) v NOMINAL DEFENDANT (Defendant)
FILE NO/S:	RS 463 of 2017
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	5 August 2021
DELIVERED AT:	Supreme Court at Brisbane
HEARING DATE:	3, 4 and 11 December 2020
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. The claim is dismissed; and 2. The parties are to provide written submissions as to costs within 14 days.
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE TORTS – NEGLGIENCE – OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES – ROAD ACCIDENTS Where the Plaintiff was driving a utility and collided with another vehicle – where the circumstances of the collision were the subject of controversy – where the Plaintiff alleges the crash was caused by an unidentified red vehicle – whether the Plaintiff was following a red vehicle that swerved late and dangerously – whether the unidentified red vehicle owed the Plaintiff a duty of care Civil Liability Act 2003 (Qld) ss 11, 22, 23, 24 Jones v Dunkel (1959) 101 CLR 298, cited Kerle v BM Alliance Coal Operations Pty Ltd & Ors (2016) 262 IR 381; [2016] QSC 304, cited Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, cited Pell v R (2020) 94 ALJR 394, cited
COUNSEL:	M T O’Sullivan for the Plaintiff G O’Driscoll for the Defendant
SOLICITORS:	Shine Lawyers for the Plaintiff Jensen McConaghy Lawyers for the Defendant