Motor Accidents (Compensation) Commission v Motor Accidents Insurance Board - [2023] NTSC 40

CITATION:Motor Accidents (Compensation) Commission v Motor Accidents Insurance Board [2023] NTSC 40
PARTIES:MOTOR ACCIDENTS (COMPENSATION) COMMISSION

v
MOTOR ACCIDENTS INSURANCE BOARD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:4/19 (21903729) and 5/19 (21903731)
DELIVERED:  3 May 2023
HEARING DATES:  29, 30 June; 1, 2 July 2020; Written Submissions 28 July; 11 August; 18 August 2020
JUDGMENT OF:  Blokland J

CATCHWORDS:

MOTOR ACCIDENT COMPENSATION LEGISLATION – Liability – Compensation payments – Motor Accident (Compensation) Commission – Interstate insurer – statutory benefits paid to people injured in accident – liability denied by insurer – cause of accident disputed – negligent driving – inattention or over correction – negative damping ratio – spontaneous medical episode – eyewitness evidence – photographic evidence different to eyewitness observations – differing expert opinion – estimate of duration of accident – balance of probabilities – accident not caused by negative damping ratio – accident not caused by spontaneous medical episode – accident caused by inattention or overcorrection – defendant liable as the
insurer of the driver at fault.
MOTOR ACCIDENT COMPENSATION LEGISLATION – Liability – res ipsa loquitur – inferential reasoning process – accident of a kind that does not ordinarily occur without negligence – expert evidence agreeing – cause of accident in control of driver – res ipsa loquitur applies to the benefit of the plaintiff.

MOTOR ACCIDENT COMPENSATION LEGISLATION – Claim for damages – indemnity – statutory benefits – validity – legitimate and permitted payments – reasonable and necessary expenses – commission continues to recover payments – injured persons remain eligible for payments – statutory provision for recovery – does not require each payment to be proven – statutory benefits recoverable in full.
MOTOR ACCIDENT COMPENSATION LEGISLATION – indemnity –
whether statute and regulations complied with – whether non-compliance
with provision requiring a certificate before payment will lead to invalidity
– held, regulatory framework and Act complied with – if in the alternative
there was non-compliance on the part of the commission there is no
invalidity.

Evidence (National Uniform Legislation) Act 2011 (NT) s 79(1)
Government Business Enterprises Act 1995 (Tas) s 6
Interpretation Act 1978 (NT) s 68
Motor Accidents (Compensation) Act 1979 (NT) ss 4, 5, 12, 17, 18, 18BB, 18BD, 25, 38
Motor Accidents (Compensation) Regulations 2015 (NT) s 4D, 4F, 4H, 4K, 5, 6
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas)
Personal Violence Restraining Orders Act 2016 (NT) s 13
Territory Insurance Office Act 1979 (NT) s 4

Ancor Products Ltd v Hedges (1966) 115 CLR 493; Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; Attorney General v Arthur Ryan Automobiles Limited [1938] 2 KB 16; Bennett v Barwick [2000] TASSC 2; Goode v Angland [2017] NSWCA 311; Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72; Joam v Minister for Immigration and Multicultural Affairs [2002] FCA 107; Kalavrouziotis v Howel (1998) 27 MVR 367; Malik v Malik [2001] WASCA 371; Motor Accidents (Compensation) Commission v Insurance Commission of Western Australia & Anor [2019] NTSC 68; Mott v Phillip and Ors [2017] QSC 212; Piening v Wanless (1968) 117 CLR 498; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Prosser v Phillips and Ors [2017] QSC 212; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; Taylor v Owners –Strata Plan No. 11564 (2014) 253 CLR 531; Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288; Victorian WorkCover Authority v ESSO [2001] HCA 58, referred to.

REPRESENTATION:
Counsel:
Plaintiff:A Lindsay SC, J Ingrames
Defendant:R Bönig
Solicitors:
Plaintiff:Hall & Wilcox
Defendant:Finlaysons
Judgment category classification:    B
Judgment ID Number:  BLO2305
Number of pages:  42

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Motor Accidents (Compensation) Commission v
Motor Accidents Insurance Board [2023] NTSC 40

No. 4/19 (21903729) and 5/19 (21903731)
BETWEEN:

MOTOR ACCIDENTS (COMPENSATION) COMMISSION

Appellant

AND:

MOTOR ACCIDENTS INSURANCE BOARD

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered May 3 2023)
Introduction

This action was commenced by the plaintiff, the Motor Accidents (Compensation) Commission, seeking an order that the defendant, Motor Accidents Insurance Board, indemnify it for payments made to Mrs Stella Sullivan and Mr Arthur Sullivan following a tragic motor vehicle accident that occurred on 22 July 2016.
The Second Amended Statement of Claim for each file sets out the following points and gives context to the discussion of evidence below.
The plaintiff is a corporation established under s 4 of the Territory Insurance Office Act 1979 (NT), capable of suing and being sued in its corporate name and style, and a Commission within the meaning of the Motor Accidents (Compensation) Act 1979 (NT) (‘the Act’).
The defendant is a corporation established under s 6 of the Government Business Enterprises Act 1995 (Tas), capable of suing and being sued in its corporate name and style, and the board within the meaning of s 4 of the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) (‘the Tasmanian Act’).
At all material times, the defendant was the third party insurer of a Land Rover Discovery motor vehicle, bearing Tasmanian registration EC2101 (‘the motor vehicle’) and a Millard caravan bearing Tasmanian registration UT 5047 (‘the caravan’) pursuant to s 20(1) of the Tasmanian Act. The defendant insured the owner of the motor vehicle and the caravan, Mr Douglas Cooper, for any liability incurred by him in respect of the personal injury to a person resulting directly from a motor vehicle accident involving the motor vehicle and caravan. The defendant accepts these preliminary elements of the claim.[1]
The defendant does not accept that Mr Cooper is a person who would, assuming the Act never existed, be liable in tort for the Sullivans’ injuries, loss and damage, and denies Mr Cooper was negligent,[2] thus denying liability as the indemnifier under s 38(1)(b)(ii) of the Act. Sadly, Mr and Mrs Cooper suffered fatal injuries at the time of the accident. As discussed below, the cause of Mr Cooper’s death is contentious as between the parties.
The plaintiff seeks to recover the payments made to the Sullivans following their application for statutory benefits under the Act on 25 November 2016. The payments made to Mr Sullivan between 13 September 2016 and 21 November 2018 total $133,695.98, particularised in the Second Amended Statement of Claim. The payments made to Mrs Sullivan during the same period total $1,348,617.74, particularised in the relevant Second Amended Statement of Claim.[3]
The action is brought pursuant to s 38 of the Act which provides statutory indemnity for benefits that have been paid, and an action in the nature of recovery of a debt. It is generally accepted that such avenue for recovery exists under the Act and stems from common law principles.[4] The defendant denies liability, denying that Mr Cooper was negligent as alleged by the plaintiff and denies a number of particulars of the claim, which will be discussed further. An alternative to negligence is reliance on res ipsa loquitor, denied by the defendant. Additionally the defendant claims Mr Cooper suffered an unexpected and unexplained medical event resulting in his death, hence he had no control over events leading to the collision.[5]
The Motor Vehicle Accident
Evidence tendered or given at the hearing showed Mr Cooper and his wife left Tasmania on 3 July 2016 and travelled north on the Stuart Highway into the Northern Territory, as they had done on previous trips. They had completed a number of long trips throughout Australia, including in 2011, 2012, 2014 and 2015.[6] Mr Cooper was the sole driver on this trip, as Mrs Cooper was not driving due to a diagnosis of Parkinson’s disease.[7]
Mr Cooper had been certified fit to drive to commercial standard on 29 February 2016,[8] and did not have any medical conditions which were found to adversely impact his regular normal driving ability.
The Coopers left Alice Springs on 22 July 2016 at about 8.45am, with plans to drive to Tennant Creek. They planned to travel about 500 kilometres that day. The motor vehicle was observed by a witness Mr Neil Coates to be travelling at approximately 90 kilometres per hour.[9] The Coopers had a morning stop approximately one and a half hours after leaving Alice Springs, and were observed leaving a wayside stop at about 10:30am.[10]
At about 1:30pm, Mr Cooper was driving the motor vehicle towing the caravan in the northbound lane of the Stuart Highway. This was around three hours after he had taken the morning break, with no other known breaks. The collision took place 6.5 kilometres north of Barrow Creek (approximately 290 kilometres north of Alice Springs). On the plaintiff’s case, the caravan began to sway, on Mr Sullivan’s evidence to “wobble”, a sign that the proper control may have been compromised. The motor vehicle towing the caravan moved towards the left verge of the northbound carriageway, then both the motor vehicle and caravan moved to the right within the northbound carriageway before again moving to the left, and then moved again to the right, crossing the centre line and entering into the path of oncoming traffic in the southbound carriageway. The motor vehicle and caravan driven by Mr Cooper collided with the oncoming Fiat Ducato van (NSW registration CRV 88M) (‘the van’) driven by Mr Sullivan. Mrs Sullivan was a passenger in the front seat.
Several diagrams of the positions of the two vehicles and the caravan at the time of the accident were made and were before the Court. It is agreed by reconstruction experts that figure 4 in exhibit P1 is an accurate representation of the angle of the car and the caravan before impact. It is accepted here that essentially the van hit the driver side of the motor vehicle and spun slightly before making contact with the rear side of the motor vehicle. This resulted in the motor vehicle separating from the caravan, and rolling through the air at a height of approximately 6 feet, before landing off the road and immediately catching alight.
As mentioned, Mr Cooper and his wife were deceased at the scene. In the Draft Amended Second Defence the defendant denies that Mr Cooper suffered fatal injuries as a result of the accident. The defendant accepts that he was discovered deceased at the scene of the crash. No autopsy or toxicology analysis was performed as both deceased were badly burnt, due to their vehicle catching alight immediately after the accident.[11] This is relevant to one of the defendant’s contentions about the cause of the accident, which is discussed further below.
Mr Sullivan suffered right femur fractures and a right hip soft tissue injury. Mrs Sullivan suffered a traumatic brain injury, left middle artery infarct and a right tibia plateau fracture. The nature of their injuries is not contentious.
There is nothing controversial about any of the vehicles involved in the sense that there is no suggestion the cause of the accident could be associated with mechanical failure. The Land Rover was manufactured to be suitable for towing, and had been maintained by the same mechanic since 2009, with careful and regular maintenance and with genuine parts. It was last serviced two weeks before the Coopers left Tasmania.[12] Some repairs were conducted while in the Northern Territory, but are immaterial to these proceedings.[13]
The accident and preceding circumstances were investigated by Territory Major Crash Investigations, led by Detective Senior Constable Sean Alia. In addition to the Territory Crash report received in evidence with some redactions by consent as Exhibit P1, Detective Alia gave evidence in the proceedings.
Eyewitness Evidence
At the time of the hearing, there were two surviving eyewitnesses. First, Neil Coates, an off duty Victorian police officer, who gave evidence at the hearing that he was following the caravan travelling at approximately 90 kilometres an hour.
Mr Coates said that he saw the caravan initially drive to the left side of the road then move to the right towards the centre of the road. It then moved back at a greater angle to the left, before an even larger swaying motion back to the right which saw the caravan cross the centre line on to the opposite side of the road. The car and caravan then moved back towards the correct side of the road, but not in time to avoid a collision. He caught glimpses of the car, visible enough to determine its colour, before seeing it totally when the caravan had swung onto the other side of the road.
Mr Coates’ initial impression was that the caravan initially ‘got out of shape’ by a ‘small fish tail’[14] and then the driver overcompensated in each steering input causing the increasingly larger swerve motions.
In cross-examination Mr Coates accepted that the motor vehicle appeared to be travelling in a straight line and that the whiplash motion of the caravan may have pulled the car around with it.[15]
Mr Coates found it difficult to estimate the time that elapsed between the first movement of the caravan and the collision.[16] He said “it all happened very quickly”.[17] He drew a diagram following the collision that indicated the angles of the caravan at each swing.
The other eyewitness, who also gave evidence, is Mr Sullivan, who had a clear front on view of the motor vehicle and caravan from the driver’s seat of his own van. Mr Sullivan saw the motor vehicle before it became out of control, and was concentrating on it to make sure he gave it enough room to pass (noting that the caravan was wider than the towing vehicle).[18] He then saw that the caravan had a ‘wobble up’.[19] He then had the impression that the passenger side wheels of the caravan went into the dirt, before he saw the motor vehicle come across onto his side of the road.[20]
He told the Court that he was watching intently because he was trying to ascertain if he could take evasive action to avoid the collision. This evidence is readily accepted.[21]
Mr Sullivan also found it difficult to estimate the time that elapsed between his first observation of the caravan “wobble” and impact, and gave an estimate of approximately 10 seconds.[22] He conceded in cross-examination that the time elapsed could have been less than four seconds.[23]
At the last moment before impact, Mr Sullivan saw Mr Cooper clearly from a distance of about one metre. He said he could see Mr Cooper in an upright position, and that it looked like he was fighting for control of the motor vehicle and caravan.[24]
Mr Sullivan said he was “heavy on the brakes”.[25]
It was not put to Mr Sullivan in cross-examination that his recollection of the events was unreliable due to the short time frame or their horrific nature.[26] I do not accept the defendant’s submission that Mr Sullivan’s recollection has become blurred and that he has truncated the path of the caravan and the motor vehicle.[27]
I accept the evidence of both Mr Coates and Mr Sullivan as clear and reliable. Both gave consistent statements fairly soon after the accident and their accounts substantially confirm each other, being mindful of their respective viewpoints. I will discuss their slight inconsistencies regarding the motion of the motor vehicle and the timing further.
I prefer the evidence of Mr Sullivan in terms of his view of the path of the motor vehicle as he had a clear, frontal view and was paying close attention. This is further supported by the fact that the caravan was wider than the towing vehicle, and Mr Coates only caught brief glimpses of the motor vehicle.
Neither Mr Coates nor Mr Sullivan experienced a gust of wind prior to the collision, nor did they recall a large vehicle, such as a road train, passing by.[28]
What is ultimately determinative of the issue of liability is the cause of the initial small fishtail described by Mr Coates which increased in angle until the collision.
Expert Evidence
Each party called expert witnesses to give evidence as to the cause of the initial sway. The plaintiff called Detective Alia, the investigating officer, and a reconstruction expert, Mr McDonald. The defendant called a reconstruction expert, Mr Hall.
Detective Alia was the only expert witness who had physically been to the crash site. He gave evidence of his observations of the northbound road surface in the lead up to the point of collision. On the same date as the collision, Detective Alia and Sergeant Chris Wilson,[29] inspected approximately 100 metres of the road surface and did not observe any noticeable undulations or other defects.[30]
Detective Alia subsequently returned to the collision site with Sergeant Schumacher, the Sergeant in charge of the Alice Springs major crash unit, and checked the road more thoroughly for a number of kilometres.[31] The aim of that investigation was to try and identify what had caused the caravan to sway. They took photos of the road to show that there were no undulations.[32] Detective Alia said, “There was no major up and down to the road, there was nothing, it was relatively flat. No (inaudible) potholes.”[33]
I do not accept the defendant’s submission that it is more likely Detective Alia was looking for potholes,[34] but do accept that Detective Alia has less experience than Mr Hall with the technicalities of dealing with the causes of collisions of this nature, and might not have been aware of the same subtleties in the road surface that could affect vehicles of this nature.
Detective Alia’s ultimate opinion was that the accident was caused by the driver overcorrecting after the initial sway, which meant the vehicle ended up on the wrong side of the road. He gave evidence to this effect on the basis of his investigation of this collision, and his subsequent experience.[35] He also gave evidence that, in his experience, a very common cause of accidents in the Northern Territory is vehicles overcorrecting.[36]
I permitted Detective Alia to give opinion evidence as an expert, although he did not have relevant tertiary qualifications and at the time of the investigations did not have high level experience. However, s 79(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) allows evidence of opinion to be given if a person has ‘specialised knowledge’ based on ‘training, study or experience’. In my view, Detective Alia’s training and experience, particularly by the time he gave evidence, amounted to ‘specialised knowledge’ and was appropriately commensurate with the opinion evidence he gave. Broadly, it was consistent with the balance of the evidence and I give it some but not overwhelming weight. I do not think the weight should be diminished to the degree suggested by the defendant. Much of his evidence relevant to the investigation involved matters of fact in any event from which reasonable inferences may be drawn by the Court, particularly when taken with other evidence.
Mr McDonald gave evidence for the plaintiff and expressed the same view as Detective Alia that the initial movement was consistent with inattention and subsequently overcorrection led to the collision.[37] He added that within what appeared to be, in his opinion, the most reasonable duration of the incidents, the movements were consistent with active steering input.
He also gave evidence that the ability to estimate distance of something travelling directly towards a person driving or directly away from them can be quite poor.[38]
It is acknowledged that Mr McDonald’s first report left out a partial oscillation,[39] but is accepted that he corrected this in his last report and in his oral evidence.

Mr McDonald accepted in cross-examination that the initial sway could have occurred without driver input,[40] but in re-examination clarified that he would rate that likelihood as a low probability in the absence of evidence of another trigger.[41]
He agreed with the proposition put to him that if the motor vehicle continued on a straight trajectory and only the caravan swayed then the sway was not due to driver steering.[42] It was not put to him that his hypothesis was wrong, other than if a different estimate of time or distance was applied.[43]
His evidence was, having mind to the observations of the eyewitnesses, that the time estimate was wrong, rather than the observations.[44]
The defendant’s expert, Mr Hall, agreed in cross-examination that, outside of a time frame of four to five seconds, inattention and subsequent overcorrection was a realistic explanation for what occurred.[45] It is acknowledged here that Mr Hall is a highly regarded and recognised expert in the field of accident reconstruction and associated fields of study. However, his opinion must be considered with and against the other evidence before the Court.
Mr Hall’s preferred explanation, with a time frame of under five seconds, was that an external force resulted in the caravan and towing vehicle entering a negative damping ratio, where essentially the caravan is steering the motor vehicle rather than the other way around. He gave several explanations for the external force, namely an errant micro gust of wind, wind force from a passing vehicle, or most plausibly in this situation, a road surface undulation or undulations. He accepted that a quick change in the direction of the tow vehicle can also be a cause.[46]
Mr Hall agreed that without concrete evidence of an errant micro gust, and accepting the observations from Mr Coates and Mr Sullivan that there were no road trains passing Mr Cooper preceding the sway, that the explanations of a micro gust or air force from a passing vehicle are unlikely to have caused this accident.[47] Mr Hall focused on an undulation or series of undulations in the road surface being the most likely cause. This will be discussed further.
Positions of the Parties Regarding Liability
The parties’ contentions in terms of liability for the accident arise from differing explanations as to the cause of the sway of the caravan and the loss of control of the motor vehicle.
The plaintiff’s position is that the accident was a result of Mr Cooper’s driving, advanced on two slightly differing contentions regarding his conduct. The defendant’s position is that the accident occurred either as a result of some external force, uncontrollable to Mr Cooper, impacting the damping ratio of the caravan; or that Mr Cooper suffered an incapacitating medical episode while he was driving that was outside of his control.
The plaintiff submits that the accident was the result of negligent driving by Mr Cooper. Negligence is said to arise in two ways, either from inattention or from overcorrection of Mr Cooper. From the plaintiff’s Second Amended Statement of Claim, a summary of the particulars of negligence are as follows:
That Mr Cooper drove the motor vehicle without due care or attention. Specifically, that Mr Cooper steered the motor vehicle and caravan from the left verge to the right of the northbound carriageway and then back to the left before crossing the centre line into the path of oncoming traffic, and that manner in which he did so was the result of fatigue or inattention. This is asserted to be a failure of Mr Cooper to use the motor vehicle without due skill, attention and care for other road users, particularly the Sullivans.
That the speed in which Mr Cooper drove the motor vehicle was excessive for the towing of the caravan in the circumstances.
That the steering inputs by Mr Cooper led to the out of control movements of the motor vehicle and caravan in the manner already described and into the path of oncoming traffic.
That Mr Cooper failed to maintain effective control of the caravan by overcorrecting the steering of the motor vehicle, causing the movements described, and that he caused the motor vehicle and caravan to veer into the southbound carriageway.
That Mr Cooper failed to brake, slow or swerve the motor vehicle and caravan so as to avoid the collision.
In my view, given the overall state of the evidence and its cumulative force, the failure to drive without due care, skill and attention was well made out as was the failure to maintain effective control and overcorrecting leading to crossing the line into the path of Mr Sullivan’s vehicle.
The plaintiff alternatively relies on the doctrine res ipsa loquitur and submits that the facts show a motor vehicle accident of a kind that does not ordinarily occur without negligence.
Unexplained Medical Event
I will deal briefly with the proposition raised by the defendant of a medical episode being causal in the collision. The difficulty here is that an autopsy was unable to be performed on Mr Cooper.
It is accepted that Mr Cooper had previously been diagnosed with type-2 diabetes, and had experienced atrial fibrillation, leading to a prescription of the anticoagulant medication Pradaxa.
After the evidence of Dr Loughhead, the only slightly plausible medical explanation raised was that Mr Cooper had suffered a stroke as a result of atrial fibrillation which caused a sudden and significant loss of motor function which rendered it impossible for Mr Cooper to maintain control of the vehicle. It was accepted by Dr Loughead in cross-examination that if Mr Sullivan’s observations of Mr Cooper were accepted, this was unlikely to have occurred.[48]
The defendant has appropriately abandoned the contention that Mr Cooper may have died instantaneously from a stroke or suffered syncope.
The defendant’s position on a medical episode is in contrast with the evidence given by the plaintiff’s expert neurologist, Dr Spira. It is also inconsistent with the opinion of defendant’s crash expert Mr Hall that “the change in dynamic stability did not occur due to incorrect or excessive driver input”,[49] as might be expected if Mr Cooper had, for example, suddenly lost control of one side of his body.
In the absence of any reasonable medical evidence to support this assertion, and with reliance on Mr Sullivan’s evidence of seeing Mr Cooper alert and wrestling for control of the vehicle, I find it essentially impossible to conclude that an acute medical incident caused instantaneous incapacity to Mr Cooper. The assertion of a medical episode beyond the control of Mr Cooper which resulted in lack of control of the vehicle as the cause of the accident is rejected.
Change to the damping ratio
The conditions of the road were a point of contention. It is accepted that the collision occurred in the day time, and that were no obvious adverse weather conditions to impact visibility or the road surface.
Drawing from Mr Hall’s report,[50] I note the following. Caravans are inherently unstable, but in general there is sufficient damping in the system (a combination of the tow vehicle, hitch and caravan) to smooth out slight oscillations relatively quickly, and not enable them to grow into large oscillations. There is a critical speed, above which there is a negative damping ratio so that, if a sway develops while the vehicle is travelling above that critical speed, the caravan will rapidly develop high amplitude, uncontrollable sway which will generally result in a vehicle running off the roadway and/or rolling over or colliding with roadside objects, irrespective of driver input. Mr Hall’s evidence was that once the combination vehicle and caravan entered this negative damping ratio, it would be luck rather than any ability of the driver to stop the oscillations.[51]
It is not possible to determine the actual critical speed or damping ratio at a particular speed unless that particular combination of vehicle and caravan is tested out on the road.[52]
Mr Hall gave evidence that he would expect a caravan of this kind to be safely towed at 90 kilometres an hour, and that it is unlikely to enter the negative damping ratio at that speed without some other external cause.[53]
Mr Hall conceded that for a small undulation to force the caravan to enter the negative damping ratio, the combination of motor vehicle and caravan would already have to be very close to the critical speed.[54]
The undulations alleged to have caused this change in critical speed are drawn from the slightly wavy appearance of the fog line in some of the photos tendered during the proceedings. This assertion was founded primarily on regular wear and tear on the left side of a road surface on which large, heavy vehicles regularly travel.
Mr McDonald was not prepared to say that the photographs he was shown depicted undulations.[55]
In cross-examination, Detective Alia was asked to review a photo of the area of the crash looking south from the impact site (the direction from which Mr Cooper was travelling). Detective Alia accepted that the particular photographs he was shown appeared to show the road dipping up and down slightly, but he was clear that his physical inspection did not reveal undulations.[56] Detective Alia was not cross-examined on photograph P2 in Exhibit D8, which looked north towards the point of impact, although this photo was relied upon by Mr Hall.
It is acknowledged photographs can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council,[57] where the Court said that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance.
In Townsend v O’Donnell,[58] photographs which were in evidence were taken after a motor accident and depicted the place where the accident occurred. It was sought to use these photos to estimate how long the respondent in that case had had to take evasive action. The Court said:
… great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct.
In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd,[59] which concerned a motor vehicle accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. The Court stated:
The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved. (Citations omitted)
While I accept that Detective Alia’s experience is not as substantial as Mr Hall’s in terms of questions of reconstructions of causes of accidents, I am reluctant to, and do not, dismiss Detective Alia’s direct physical observations in favour of a reproduced photograph,[60] in which it was accepted by the defendant’s expert that the depth of field or inattention of the line marker may account for the perceived variations in the road surface.[61] Mr Hall gave evidence that these sorts of deviations in the white lines might be found anywhere on the Stuart Highway.[62]
Balancing the evidence of Mr Hall that he would expect the caravan to be safely towed by this motor vehicle at that speed, and for such a minor undulation to make the caravan enter the negative damping ratio the towing combination would have be very close to the critical speed already,[63] I do not accept on the balance of probabilities that undulations are the explanation for the accident.
Given the evidence that the slight deviations in the white lines pictured could be found anywhere on the Stuart Highway, I struggle to make a causal connection between this particular section of highway and a mild undulation suddenly impacting the damping ratio of the caravan and spontaneously forcing it into a negative ratio.
I am not prepared to find on the balance that there was some undulation or other defect of the road surface that forced the caravan into a negative damping ratio or that such circumstances account for the movement of the caravan outside of the control of Mr Cooper.
Causal Negligence
As noted, the plaintiff’s pleadings essentially allege that the accident occurred as a result of negligence by Mr Cooper, either through inattention or overcompensation. This was the opinion of the plaintiff’s crash reconstruction expert Mr McDonald.
The defendant’s expert, Mr Hall, agreed in cross-examination that, outside of a time frame of four to five seconds, inattention and subsequent overcorrection was a realistic explanation for what occurred.[64]
The defendant’s contention is derived from Mr Hall’s estimation of the time elapsed from the distances travelled at the relative speed of the vehicles.[65] This estimate was made by Mr Hall which described the two vehicles approaching each other at a distance of 100 yards at a relative speed of 180 kilometres an hour.[66] However, accepting that Mr Sullivan was ‘heavy on the brakes’,[67] I find it difficult to conclude that the estimations that both vehicles were travelling at 90 kilometres an hour for the entirety of the time they approached each other is accurate. I also note Mr McDonald’s observation that the ability to estimate distance of something travelling directly towards another driver or directly away from them can be quite poor.[68]
Slowing this relative speed or increasing the distances travelled will obviously increase the time frame in which the motions were observed to occur.
Mr Sullivan’s evidence was that the whole sequence of events took place within approximately 10 seconds, although he conceded it could have been shorter.[69] Given the observations made by Mr Sullivan, and the evidence of his own thought process (being that he observed the wobble, was considering driving on to the other side of the road to try and avoid the collision and was heavy on the brakes), I am reluctant to truncate the series of events to a period of two or three seconds. This is also consistent with Mr Coates’ ability to assess the specific angles of the swings of the caravan.
This conclusion is supported by the plaintiff’s expert, Mr McDonald’s opinion that he considered it unlikely that “the entire sequence would take only two or three seconds given the witness had time to perceive each motion and the approximate angles of the caravan during each phase”.[70]
I find that it is more likely that a period of at least 5 seconds can be found to have elapsed, if not longer. This, along with the concession by Mr Hall, allows me to conclude on the balance that the initial sway of the caravan originated from Mr Cooper’s inattention or overcorrection, and the plaintiff succeeds on this pleaded cause of the accident.
Res Ipsa Loquitur
The plaintiff pleads in the alternative the inferential reasoning process of res ipsa loquitur. It is accepted that it is open to the plaintiff to rely on this principle even though the plaintiff has pleaded particulars of negligence on the part of Mr Cooper.[71] If I have been in error by concluding that negligence has been proven and the collision was caused by driver fault on the part of Mr Cooper, res ipsa loquitur would be open for consideration.
There are three essential elements of res ipsa loquitur.[72]
The first is that there must be an absence of explanation for what occurred. If the Court was unable to make a finding on the balance of probabilities between whether the causal act was negligent or the result of the caravan entering a negative damping ratio, this element would be satisfied.
The second element is that the occurrence must have been of such a kind that it does not ordinarily occur without negligence. The plaintiff submits that this element can be made out as a matter of common experience,[73] or on the evidence given by the witnesses. Evidence to that effect was given by the eyewitness Mr Coates,[74] the investigating officer Detective Alia,[75] and both the plaintiff’s reconstruction expert Mr McDonald,[76] and the defendant’s expert witness Mr Hall.[77] I accept the opinion of Detective Alia and particularly the reconstruction experts, and find this element satisfied.
The third element requires here that the instrument or agency that caused the accident must have been under the control of Mr Cooper. This is a question based on the specific facts of each case, but I note that it has been applied to circumstances of vehicle drift,[78] or where there are multiple possible causes.[79] Accepting Mr Sullivan’s evidence of seeing Mr Cooper alert, I can find no reason not to believe that Mr Cooper was not in control of the motor vehicle.
If I have been in error on the finding of negligence res ipsa loquitur would be available to the benefit of the plaintiff regarding the question of liability. In any event, as above I am of the opinion that the accident was, on the balance, caused by Mr Cooper’s negligence.
Validity of statutory benefits
The defendant raised a number of questions over the validity of the payments made by the plaintiff.
The payments made to Mr Sullivan total $133,695.98, particularised in the Second Amended Statement of Claim. The payments made to Mrs Sullivan total $1,348,617.74, particularised in the same form on the documents relating to that file. The amounts are claimed by the plaintiff from the defendant in accordance with s 38 of the Act.
Section 38 of the Act states the following:
38 Indemnification of the Commission for statutory benefits
(1)A person (the indemnifier) is liable to indemnify the Commission for statutory benefits paid to another person in relation to the death or injury arising from a motor accident if:
a.The motor accident was caused by, or arose from, the use of a motor vehicle registered in another jurisdiction; and
b. The indemnifier is:
i.A person who would, assuming this Act had never existed, have been liable in damages, in tort or contract, for the death or injury arising from the motor accident; or
ii.A person who is liable to indemnify such a person for that liability under an insurance contract or a statutory insurance scheme.
…
Statutory benefits are defined under the Act as compensation or other benefits payable under this Act.[80]
Section 12 of the Act states:
12 Rights to benefits to be determined by Commission
(1)The right of any person to, and the amount of, a benefit under this Act shall be determined by the Commission, and regulations under this Act may prescribe the manner in which such determination is to be made.
(1A)The regulations may provide for the manner in which the Commission determines whether a benefit is necessary and reasonable
…
Relevant also is s 18 of the Act which provides:
18     Medical and rehabilitation expenses
(1)Compensation is payable under this section for the reasonable cost of medical and rehabilitation services that are necessary and reasonably required by an eligible person as a result of an injury arising from the motor accident.
(2)     Medical and rehabilitation services are:
(a)     medical, surgical and dental treatment; and
(b)nursing and other professional care (not including attendant care services); and
(c)training and education (not including attendant care services) for rehabilitation of the injured person; and
(d)conveying the person to and from a hospital or other place for treatment, training, education or care referred to above; and
(e)hospitalisation, or accommodation in some other institution for the treatment, rehabilitation or care of injured persons.
(3)If the cost of accommodation, treatment or care in an Australian hospital, or an Australian institution for the treatment, rehabilitation or care of injured persons, is compensable, the compensation must, wherever practicable, be paid directly to the hospital or other institution.
(4)In determining whether the cost of medical and rehabilitation services is reasonable, the Commission will, where relevant, apply the Casemix system or other appropriate objective criteria.
(5)     No compensation is to be paid under this section for:
(a)     attendant care services; or
(b)     services provided outside Australia.

The defendant submits that the plaintiff has not complied with the statutory requirements as there was no certificate and no ‘FIM’ assessment made under the Regulations with respect to Mrs Sullivan and, with respect to both Mr and Mrs Sullivan, non-compliance with Regulation 4D of the Motor Accidents (Compensation) Regulations 2015 (NT) (‘The Regulations’). The defendant adds that only legitimate and permitted payments pursuant to the Act can be the subject of the indemnity provided by s 38.[81] As a broad proposition that may be accepted, however further analysis is required with respect to each relevant section and legislation.
The defendant’s conclusion is drawn in part from the reasons of his Honour Associate Justice Luppino in Motor Accidents (Compensation) Commission v Insurance Commission of Western Australia & Anor.[82] The defendant drew attention to the following portion of this decision:
[35]The third basis on which the futility principle was argued relates to section 17(5) of MACA which is in the following terms:-
17 Compensation for loss of limb or other permanent impairment
(1-4) Omitted.
(5)Compensation for a permanent impairment may only be paid under this section to, or for the benefit of, a person who is, at the time of the payment, in Australia.
[36]That provides that the statutory benefits to which that section applies are only payable to a person who is in Australia at the time of the payment. The claimant moved back to his native France sometime after the accident and some payments in respect of which the Plaintiff claims indemnity were paid after that time. The Defendants argue that as the claimant was not entitled to a payment pursuant to section 17 of MACA for that reason, the Plaintiff cannot claim any amount representing that payment against the Defendants pursuant to the indemnity. The Defendants argue effectively that only legitimate and permitted payments pursuant to MACA can be the subject of an indemnity. On its face that would appear to be trite.
It is clear in those circumstances that the claimant was initially entitled to statutory benefit under the Act, but became ineligible upon moving back to France.
The defendant’s reliance on this passage takes the matter much further than the ambit of the reasoning of Associate Justice Luppino, in a context where his Honour was considering an argument based on futility and s 17(5) specifically provides compensation ‘may only be paid’ to a person in Australia.
Regardless, Motor Accidents (Compensation) Commission v Insurance Commission of Western Australia & Anor may readily be distinguished. On the facts in this case there were not relevant disentitling factors, hence Mr and Mrs Sullivan were, and remain eligible for payments in accordance with the Act. There have been no payments made to either of the Sullivan’s that they have not been eligible for. I would think it uncontroversial that an Australian who suffers a traumatic brain injury in an accident for which they have no fault, is a person envisaged to be entitled to compensation under the Act. These are not the kind of benefits that the Act and its associated Regulations permit commutation of.[83]
As is well known, the Act removed certain common law rights. The Sullivans have no cause of action outside of the confines of the Act. They are entitled to benefits under the Act for life.[84] The Act should be interpreted in that overall light, including issues of appropriate recovery which is what is attempted here.
The plaintiff submits that any restrictions on the indemnity must be found in the statutory provision that creates the indemnity, in this case s 38 of the Act. As the High Court said in Victorian Workcover v Esso Australia Limited:[85]
“Some of the indemnity provisions in workers compensation statutes have been interpreted as conferring direct rights of action against the tortfeasor which arise when each compensation payment is made by the employer or insurer and which will succeed if the other conditions laid down in the provision are satisfied”
The plaintiff submits that the preconditions in s 38 are, as mentioned above, that statutory benefits have been paid, that they relate to an injury arising from the motor vehicle accident, that the motor vehicle accident was caused by the use of a motor vehicle registered in another jurisdiction and that a person in Mr Cooper’s position would have been liable in tort for the injuries.[86] Further, the nature of statutory indemnities of this kind is that any restrictions placed on the indemnity must be found in the provision which creates the indemnity.[87] There is no relevant statutory restriction which applies to the eligibility of the benefits here.
The defendant did not accept that such payments have been made, but I am satisfied the payments have been made based on the evidence of Mr Moss, the manager of claims within the motor accident compensation team at TIO, and particularised in the Scott Schedules. Fully itemised lists of the payments were tendered in exhibits P24 and P25, and exhibit P26 contained many of the invoices themselves.
It is accepted here, as submitted by the plaintiff, that s 38 does not go so far as to require the plaintiff to reprove the purpose and legitimacy of each individual payment for the benefit of an indemnifying tortfeasor.[88]
The defendant contends that to comply with s 38 the plaintiff must prove that each payment made to the Sullivans was necessary and reasonable.[89] As is pointed out in the submissions, there is much common law on what is ‘necessary and reasonable’. The defendant argues the combination of s 38 and the need for compliance with relevant parts of s 18 of the Act underline the need for proof by the plaintiff that each item was ‘reasonable and necessary’. Section 38, however concerns indemnity and debt. The whole purpose is to relieve the plaintiff from the burden of reproving each payment. To apply s 38 the way contended for by the defendant would render it pointless when other conditions are met.
I do not see the need to elaborate further on the meaning of ‘necessary and reasonable’. There is plenty of authority that confirms that ‘necessary’ generally conveys the medical necessity of the treatment of injuries and ‘reasonable’ conveys an exclusion of exorbitant costs, taking into account all of the features of the person being treated. The available evidence points to the fact, and I accept, that the payments required for the medical care of Mr and Mrs Sullivan have been shown in any event to be reasonable and necessary.[90]
It seems illogical, and overbearing, to require, for example, the Commission to produce medical certificates and other relevant documentation of the type argued by the defendant in relation for each payment made,[91] regardless of the amount, in order to recover the cost.
The defendant argued the plaintiff failed to establish the Commission considered factors listed in Regulation 4D of the Regulations. Regulation 4D sets out what the Commission must consider when assessing whether medical and rehabilitation services are ‘reasonable and necessary’ under s 18(1) of the Act. The construction urged on behalf of the defendant places too much stock on the term ‘statutory benefits’ which means ‘compensation or other benefits under the Act’[92] by suggesting that by not establishing recourse to the factors in Regulation 4D, the payments are not ‘statutory benefits’ and are not recoverable under s 38. I do not accept such a convoluted construction and consequential process was intended under the Act. This in turn requires focus on the meaning of indemnity and debt in the context of this particular statute.
Submissions made on behalf of the plaintiff explain in illuminating detail the reasonably complex origins of elements of the current Act.[93] The defendant does not appear to disagree with the history as set out. In my view it is clear, in part by having regard to those matters but primarily the words of the Act itself, that the plaintiff Commission is to determine which services generally are reasonable and necessary, a determination that can be made from time to time and by reference to types or categories of services.
If any doubt remains as to the interpretation of the Act, it must be remembered the Act is beneficial legislation which removed common law rights. Regulations 4D and 4H, the latter which applies to attendant care services are not prescriptive and largely adopt what might be contemplated in the cases as ‘necessary and reasonable’. It is only consideration of the listed factors which is required by the Regulations. There is no requirement for the plaintiff Commission to weigh each potential factor for consideration before acceptance or rejection. Some factors may well be routine. Not all of the factors listed in Regulations 4D and 4H will be relevant to each decision on the provision of a service. The practical and administrative considerations and costs are also relevant regarding decisions made on providing medical care, treatment and attendant care. I accept the plaintiff’s submission that the Regulations represent an example of a provision where it is permissible to read in words to the effect ‘must consider where appropriate, each of the following’.[94]
Those words are necessary here to ensure the plaintiff Commission does not take into account irrelevant or unnecessary considerations and that the Regulations conform comfortably within the scheme of statutory benefits under the Act and the statutory indemnity.
There was no meaningful challenge by the defendant of Mr Moss’s, evidence. He gave evidence of his training and general practice of how he determines the provision of services and their costs under the Act. No evidence contradicting his evidence was given. Although liability was disputed, the defendant admitted liability for all payments made before the initial discharge of Mr Sullivan and Mrs Sullivan. This concession was made without the defendant requiring specific information to establish Regulatory compliance. The opposite view seems to have been taken by the defendant to the balance of the payments, yet the same or similar process was engaged by the plaintiff Commission.
I will not summarise all of the relevant evidence save to say the TIO’s manager of claims, Mr Moss, gave a substantial amount of evidence on the usual business practice engaged when assessing the medical and other expenses. This included production of business records, training, the process of decision making and how staff meet the objectives, in general, of the regulatory framework. Detailed evidence of relevant care plans for both Mr and Mrs Sullivan was given. Mrs Sullivan’s hospital, medical and treatment history is complex which culminated in community care plans and reviews. Regrettably, Mrs Sullivan has required re-hospitalisation from time to time which was well documented. I do not accept the convoluted arguments put forward by the defendant on the construction of the Act and Regulations. I do not accept the intention of the Legislature was that payments would be invalid if not shown to expressly consider the criteria under Regulation 4D and 4H. In my opinion, a failure to expressly consider that criteria does not oust the right to a benefit, nor the s 38 indemnity. In any event, as indicated, the services provided were reasonable and necessary.
In relation to Regulation 4H, necessary and reasonable attendant care services, the first of the defendant’s arguments requires consideration of Short-Term benefits for attendant care. Section 18BB(1) of the Act provides for short-term attendant care benefits. Essentially this covers benefits on available information without recourse to the Regulations for 12 months. The Commission assessed Mrs Sullivan as eligible for short-term benefits. The initial 12 months was for short-term benefits, not interim benefits. Short-term benefits commenced on 14 October 2016. Those benefits were converted to interim benefits on 13 June 2017.
The criteria for interim benefits is similar to short-term benefits, save that interim benefits under s 18BD(1)(c) of the Act require criteria under Regulation 4F to be considered. The Commission must be satisfied that the person has suffered an injury listed in Schedule 1,[95] that the criteria for the injury is satisfied and the person’s condition is not permanent and stable.
Dealing with a brain injury, the criteria includes a period of post-traumatic amnesia of 7 days or more, or significant brain abnormality and having a score of 5 or less on any item on the ‘FIM’ Guide.[96] The evidence from Mr Moss and Ms Courts established the criteria that the condition not be permanent and stable at the time of assessment. At that time Mrs Sullivan was still in an active stage of treatment.[97] Certain behaviours or symptoms meant that at that time she was eligible for interim, rather than long-term, attendant care services. Interim benefits are payable for up to three years from the date of claim.[98] The defendant argued that Regulation 4F(2) requires a ‘FIM’ assessment to be taken at the same time as the assessment which leads to certification. I disagree. Regulation 4F(2) and (5) require that the Commission be satisfied that the eligibility criteria ‘are met on the date the Commission assesses the persons eligibility’, meaning that the criteria are met at the time of the assessment. Judith Courts’ evidence sufficies on this point that the ‘FIM’ had not changed.
Regulation 4F(4) states the Commission must obtain a certificate from a medical specialist stating that the medical specialist has assessed the injured person who had suffered an injury of the type described within the Schedule 1 criteria. The defendant argued the requirement to obtain a Certificate is mandatory and strict compliance is required as s 18BD(1)(c) states benefits are payable if ‘the criteria prescribed by regulation for this section are satisfied’. Regulation 4F(4) states ‘the Commission must obtain a certificate from a medical specialist approved by the Commission’. The defendant emphasises the mandatory nature of the word ‘must’.[99]
I accept there is an expectation of compliance when the word ‘must’ is used by the legislature. The consequences of non-compliance are not however always clear cut. So much is made clear in the often quoted Project Blue Sky Inc v Australian Broadcasting Authority[100] where it was observed:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by the reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition.
The context and statute as a whole and the objectively ascertained intentions of the legislature if there is failure to comply are all relevant matters.
The plaintiff points out that the certificate is not part of the criteria for eligibility. Regulation 4F(4) instructs a certificate ‘must’ be obtained, however that adds nothing to the criteria to be considered. The consequences for people who otherwise qualify for benefits would be severe if the defendant is correct. Needless to say, because of the way the plaintiff Commission operates, the relevant medical information would already have been obtained before the benefit is assessed and paid. There is no prescribed form for the certificate. The plaintiff points out that an accepted dictionary meaning, from the Macquarie Dictionary states:
A Certificate in the ordinary meaning of the term is a writing on paper certifying the truth of something.[101]
Further, s 68 of the Interpretation Act 1978 (NT) provides strict compliance with prescribed forms under an Act is not necessary and substantial or sufficient compliance will suffice. Of course here there is no prescribed form, just a document or documents certifying the truth should amount to compliance. The certifying must be done by a ‘medical specialist’ defined under Regulation 4F(6) as ‘a medical practitioner who holds specialist registration under the Health Practitioner Regulation National Law in a recognised specialty that is relevant to the injury.’ The plaintiff tendered a number of reports which in my view would substantially meet the description of certificate and sufficiently address the injury and criteria in Schedule 1 of the Regulations.[102]
I am satisfied that an appropriate certificate or certificates have been obtained for the purposes of Regulation 4F(4), however if I am wrong, I do not accept the defendant’s argument that failure to comply, albeit with an apparent mandatory condition will lead to invalidity. It is highly unlikely that was the legislature’s intention given the beneficial subject matter. The fact the obligation falls on the Commission which in the ordinary course has gathered the same information that would be in its own interest to obtain and given the Act is for the benefit of an injured claimant likely to need attendant care services all points to such a conclusion. The structure of the Regulation does not readily lean to a reading that would treat the certificate as a condition precedent to validity of payments, when the person is otherwise eligible. There is some basis for accepting the defendant’s claim that attendant care is likely to be the most costly component of the claim, however that will not always be the case. In any event that argument does not persuade me a claim should be invalidated because the Commission did not obtain the certificate as required. Finally, there is nothing in the Regulation to indicate payments will not be paid as a consequence of non-compliance by use of words such as those used in Regulation 4K(5) that benefits ‘are not payable’ in certain circumstances.
Both broadly and in respect of the component parts of the claim, I accept the evidence of the plaintiff and find that the requirements under the Regulations were appropriately and adequately considered before statutory benefits were paid.
As above, the question of liability for the accident has been resolved in favour of the plaintiff. Accordingly, I find the statutory benefits paid are to be recovered in full from the defendant.
Disposition
Consistent with the reasons, I make the following findings:
a.Mr Cooper was liable for the motor accident on 22 July 2016 involving his use of a motor vehicle registered in Tasmania;
b.The motor accident caused the injuries of Mr and Mrs Sullivan;
c.Statutory benefits were paid by the Commission to Mr and Mrs Sullivan for those injuries;
d.Mr Cooper would have been liable to the Commission for the statutory benefits paid; and
e.The defendant is a person who is liable to indemnify Mr Cooper for his liability to the Commission, arising under the Act, under its own statutory insurance scheme; and, consequently
f. The defendant is a person liable to indemnify the Commission for statutory benefits paid to Mr and Mrs Sullivan in relation to their injuries arising from the motor accident.
Orders
I make the following orders, save that as I understand it, the defendant wishes to make submissions on interest.
1.   In claim 4 of 2019 (21903729) judgment for the plaintiff against the defendant in the sum of $1,342,083.99;
2.   In claim 5 of 2019 (21903731) judgment for the plaintiff against the defendant in the sum of $133,695.98;
3.   The defendant pay the plaintiff’s costs of each of the proceedings to be taxed or agreed.
4.   The matter is certified fit for Senior and Junior Counsel.
5.   I will reserve on the question of interest as it is understood counsel for the defendant wishes to make further submissions about interest. Further, as these reasons have been delayed I invite further brief submissions on the question of interest related to that factor.
----------------------
Note
The reasons and judgement have been delayed due to illness and absences from the Territory. A letter will be sent to counsel in that regard.

[1] See Second Amended Defence (No 4 of 2019) and the Amended Defence (No 5 of 2019).

[2] Section 38(1)(b)(i).

[3] The file relating to Arthur Sullivan is No 5 of 2019, (21903731); the file relating to Stella Sullivan is No 4 of 2019, (21903729).

[4] As discussed in Victorian WorkCover Authority v ESSO [2001] HCA 58 (‘Victorian Workcover’) and in accordance with the National Injury Insurance Scheme Agreed Minimum Benchmarks.

[5] Second Amended Defence at [10].

[6] Exhibit P1, the report by Territory Major Crash Investigations, prepared by Detective Senior Constable Sean Alia was a primary source of evidence in the proceedings, tendered by consent; page 63, 83, 132-134.

[7] Exhibit P1 at 64.

[8] Plaintiff’s Chronology.

[9] Exhibit P5 at [11].

[10] Exhibit P4 at 2 and P5 at [8]-[9].

[11] Exhibit P1 at 13.

[12] See overview of material relevant in Plaintiffs submissions at [5.3] and Exhibit P1.

[13] See overview of material relevant in Plaintiffs submissions at [5.5] and Exhibit P1.

[14] Exhibit P4 at 3 and 13.

[15] Transcript of Proceedings, Motor Accident (Compensation) Commission v Motor Accident Insurance Board, (Supreme Court of the Northern Territory, No 4 of 2019, 21903731; No 5 of 2019 (21903729), Blokland J, 29, 30 June; 1, 2 July 2020) (‘Transcript’) at 37-38.

[16] Exhibit P5 at [35].

[17] Transcript at 38.

[18] Exhibit P2 and Exhibit P3 at [11].

[19] P3 at [12].

[20] Ibid.

[21] Transcript at 28.

[22] Exhibit P3 at [19] and Transcript at 29.

[23] Transcript at 31.

[24] Transcript at 26; Exhibit P3 at [14].

[25] Transcript at 29.

[26] As pleaded by the defendant at paragraph 15 of the written submissions.

[27] Defendant’s written submissions at [15].

[28] Transcript at 25 and 36.

[29] An experienced crash scene investigator; Transcript at 14.

[30] Transcript at 60.

[31] Transcript at 47.

[32] Ibid.

[33] Transcript at 59.

[34] Defendant’s written submissions at [44].

[35] Transcript at 53.

[36] Transcript at 48.

[37] Transcript at 56-57, 70, 71, 73.

[38] Transcript at 91.

[39] Defendant’s written submissions at [34].

[40] Transcript at 82.

[41] Transcript at 93.

[42] Transcript at 82.

[43] Transcript at 90-91.

[44] Transcript at 94.

[45] Transcript at 220,222 and 224.

[46] Exhibit D34 at [8.13].

[47] Transcript at 204.

[48] Transcript at 183.

[49] Exhibit D34 at [8.25].

[50] Exhibit D34.

[51] Transcript at 194.

[52] Transcript at 193.

[53] Transcript at 193.

[54] Transcript at 209.

[55] Transcript at 85.

[56] Transcript page 60 and 63.

[57] (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 (per Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) at [69]-[72].

[58] (2016) 78 MVR 283; [2016] NSWCA 288 (Sackville AJA, with Beazley J and McColl JA agreed) at [52].

[59] [2016] NSWCA 72 (Sackville AJA, Ward JA and Garling J) at [42].

[60] Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955 at [69]-[72] cited with approval in Goode v Angland [2017] NSWCA 311 at [93].

[61] Transcript at 211.

[62] Transcript at 208.

[63] Transcript at 209.

[64] Transcript at 220,222 and 224.

[65] Reply to plaintiff’s submissions at [13].

[66] Transcript at 199.

[67] Transcript at 29.

[68] Transcript at 91.

[69] Transcript at 31.

[70] Exhibit P12 at [29].

[71] Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at [25].

[72] Ibid citing Piening v Wanless (1968) 117 CLR 498, and Ancor Products Ltd v Hedges (1966) 115 CLR 493.

[73] See for example Kalavrouziotis v Howel (1998) 27 MVR 367.

[74] Transcript at 40.

[75] Transcript at 48.

[76] Transcript at 74.

[77] Transcript at 213.

[78] See for example Kalavrouziotis v Howel (1998) 27 MVR 367; Bennett v Barwick [2000] TASSC 2; Malik v Malik [2001] WASCA 371.

[79] Mott v Phillip and Ors [2017] QSC 212 at [82]; Prosser v Phillips and Ors [2017] QSC 212.

[80] Section 4 of the Act ‘definitions’.

[81] Defendant’s written submissions at [66].

[82] [2019] NTSC 68.

[83] Motor Accident (Compensation) Regulations 1984 (NT) s 5 and 6; s 25 of the Act.

[84] Section 5.

[85] [2001] HCA 53 at [18]; this proposition can also be drawn from Attorney General v Arthur Ryan Automobiles Limited [1938] 2 KB 16.

[86] Plaintiff’s written submissions at [13.15].

[87] Attorney General v Arthur Ryan Automobiles Limited [1938] 2 KB 16.

[88] Plaintiff’s written submissions at [14.8].

[89] Defendant’s written submissions at [14].

[90] Primarily the evidence of Ms Courts and Mr Moss.

[91] Defendant’s written submissions at [79].

[92] Section 4.

[93] Plaintiff’s written submissions at [16]-[17].

[94] Taylor v Owners – Strata Plan No. 11564 (2014) 253 CLR 531.

[95] Regulation 4F(1).

[96] Exhibit P25.

[97] Exhibit P15.

[98] Motor Accidents (Compensation) Act 1979 (NT) s 18BD(3).

[99] Defendant’s written submissions at [73] citing Mildren AJ in Atkinson v Bardon & Anor [2018] NTSC 9 concerning the mandatory nature of ‘must’ used in s 13 of the Personal Violence Restraining Orders Act 2016 (NT).

[100] [1998] HCA 28; (1998) 194 CLR 355 at [91].

[101] Accepted in Joam v Minister for Immigration and Multicultural Affairs [2002] FCA 107 at [14].

[102] Exhibit P23, in the description on imaging of brain abnormalities; Exhibit P15 and FIM assessments; Dr McCarthy’s report as a rehabilitation physician.