Peterson v The Nominal Defendant - [2011] NSWSC 579

Supreme Court

New South Wales

Medium Neutral Citation: Peterson v The Nominal Defendant [2011] NSWSC 579
Hearing dates: 29/11/2010, 30/11/2010, 1/12/2010, 2/12/2010, 7/12/2010, 8/12/2010
Decision date: 16 June 2011
Jurisdiction: Common Law
Before: Hoeben J
Decision:
Judgment for the defendant.
Plaintiff to pay the defendant's costs.
I grant leave to the parties to make further submissions as to costs.

Catchwords: TORT - NEGLIGENCE - motor vehicle accident in South Australia - question of fact - was there another vehicle involved in accident - inherent improbability of presence of other vehicle - whether sufficient evidence to establish negligence - whether the plaintiff was wearing a seatbelt at the time of the accident.
Legislation Cited: Civil Liability Act 2004 (SA)
Motor Vehicles Act 1959 (SA)
Category: Principal judgment
Parties: Qier Peterson - Plaintiff
The Nominal Defendant - Defendant
Representation: Counsel
Mr G Watson SC/Mr S Andrew - Plaintiff
Mr D Trim QC/Mr DM Wilson - Defendant
Solicitors
Wyatt Attorneys - Plaintiff
Hunt & Hunt - Defendant

File Number(s): 2010/44657

Judgment

HIS HONOUR:

Nature of proceedings

On 2 November 2008 the plaintiff was the driver of a Subaru station wagon, registered in the Northern Territory. While the vehicle was travelling in a northerly direction on the Stuart Highway in South Australia, between Coober Pedy and Marla, it left the road and rolled over.

As a result of the accident, the plaintiff was seriously injured and became a quadriplegic.

The plaintiff has brought proceedings in negligence against the Nominal Defendant on the basis that the accident was caused by a large articulated vehicle, probably a road-train, the identity of which is unknown, which overtook the Subaru in such a way as to cause the Subaru to leave the highway and eventually overturn.

The plaintiff particularised negligence in the following respects:

(i) Failing to overtake another vehicle with safety.

(ii) Failing to take proper care in relation to other road users when overtaking.

(iii) Driving too close to another vehicle in the process of overtaking it causing the plaintiff to take evasive action.

(iv) Forcing the plaintiff to move so far to the left of the roadway so that the plaintiff's vehicle left the road surface and drove onto the gravel which ultimately caused the plaintiff to lose control of the vehicle.

(v) Driving at a speed excessively fast in the circumstances.

The Nominal Defendant has defended the proceedings on the basis that there was no truck involved in the accident and that the cause of the accident was that the plaintiff lost control of the Subaru station wagon.

Pursuant to an order of Davies J made on 21 September 2010, the matter proceeded as a hearing as to liability only under Part 28 rule 2 of the Uniform Civil Procedures Rules 2005.

Factual Background

Except where otherwise indicated, I find the facts to be as follows.

Although the Nominal Defendant was involved, it was agreed between the parties that there would be no requirement for the plaintiff to prove "due inquiry and search" (T.8.35). It was also agreed that the law of South Australia, in particular the Motor Vehicles Ac t 1959 (SA) and the Civil Liability Act 2004 (SA), would apply.

At the time of the accident the Subaru station wagon was owned by Mr Addicott. He was born in March 1943 and was a member of the Senior Executive Service of the Commonwealth Public Service. He was a valuer by qualification and was the Valuer General of the Northern Territory. He held that position between June 1999 and June 2009. He and the plaintiff were in a de facto relationship and had been since January 2008. Mr Addicott resided in Canberra, but would spend approximately one week a month in Darwin.

The motor vehicle involved in the accident was a 2004 model white Subaru Outback station wagon. Mr Addicott had been provided with the vehicle as part of his employment entitlement. The motor vehicle was mechanically inspected on 24 September 2008 and no defects were found. It was common ground that the accident was not caused by any mechanical defect in the motor vehicle.

On 25 October 2008 the plaintiff's sister, Su Li Deng (hereafter referred to as Ms Deng) arrived from France at Sydney Airport. Mr Addicott and the plaintiff had driven from Canberra to pick her up. Upon her arrival, they drove her back to Canberra and spent that night there.

On 26 October 2008 Mr Addicott, the plaintiff and Ms Deng commenced driving from Canberra towards Adelaide. Mr Addicott and the plaintiff shared the driving duties. Mr Addicott was to attend a conference in Adelaide, marking the 150 th anniversary of the introduction of Torrens Title. They stayed overnight at Murray Bridge and arrived in Adelaide on 27 October.

On Saturday, 1 November they left Adelaide with the intention of arriving in Alice Springs by the following night. Mr Addicott had work to attend to in both Alice Springs and in Darwin. The work involved a number of complex valuation activities. They stopped at Port Augusta for petrol and stayed overnight at Coober Pedy. The plaintiff and Mr Addicott again shared the driving.

The plaintiff, Mr Addicott and Ms Deng left Coober Pedy at approximately 8am on 2 November. Mr Addicott was driving.

The weather was fine and there was no suggestion that the visibility was other than excellent. In the relevant area the Stuart Highway runs generally in a north-south direction with one lane travelling in each direction. The surface of the road was bitumen and each lane was 3.5 metres wide. There was a gravel shoulder at each side of the highway, which was approximately .75 wide. The speed limit was 110 kph. There was no suggestion that the weather or the condition of the road surface made any contribution to the accident.

After approximately 15 minutes, the plaintiff took over the driving. Mr Addicott said that this occurred because he was familiar with the Northern Territory roads which were more winding and he thought it better that he take over driving once they entered the Northern Territory. Mr Addicott said that he had confidence in the plaintiff's driving. She used regularly drive in Canberra on weekends and on one occasion they had shared the driving on a trip from Canberra to Melbourne.

Mr Addicott's evidence concerning the plaintiff taking over driving duties is controversial on the issue of whether or not the plaintiff was wearing a seatbelt. His evidence on this issue was:

"A. Actually it was a ritual and in this situation it probably sounds a bit ridiculous but we walked around the back of the car, I'd give her a cuddle and a kiss and then walk back. And because she is shorter than me I sat her in the seat and adjusted the seat to the length of her legs and locked it in place and then, as on other occasions, made sure that she and Su Li, who wasn't familiar with Australian road laws and so forth, had their seatbelts done up." (T. 19.21)

"Q. You mentioned something before about checking something. Would you elaborate upon that? Did you say something to somebody? Was it to Qier or Su Li.

A. I have to communicate anything more than the simplest of messages via Qier. I wanted to remind Su Li particularly that she needed to put on a seatbelt and I would do that regularly.

Q. Pausing there. You are not saying this happened at the point of this changeover but at some point during the journey?

A. It was a regular bit of nagging that I would do.

Q. Why is that? Do you have a thing about seatbelts?

A. I do. I had a car accident some 30 years ago where I, while I did have an unfortunate injury with my head hitting the windscreen, but I do believe that the seatbelt prevented me from actually going through the windscreen and possibly wiping myself out.

Q. Just in respect of the seatbelts, do you believe you made any observation about Qier on the day of the accident when she took the wheel, about her and her seatbelt?

A. I certainly for my own satisfaction made sure that her seatbelt was done up." (T.20.5)

The Subaru was fitted with conventional retractable lap sash seatbelts. This model of Subaru contained a warning system when an occupant failed to fasten the seatbelt.

(a) There was a light on the dashboard which would flash;

(b) There was an audio warning, an annoying beep, which would commence when the Subaru drove at 20 kph and would then continue for 108 seconds.

Mr Addicott said that when the plaintiff took over as driver outside of Coober Pedy, he did not hear this beeping sound.

I will return to the question of whether the plaintiff was wearing a seatbelt at the time of the accident in due course.

Although the Subaru had air conditioning, Mr Addicott was not able to say whether the air conditioning was on or off. He was not able to say whether the windows were up or down. After the change of driver, the plaintiff was in the driving seat and Mr Addicott was sitting in the front passenger seat next to her. Ms Deng was sitting in the back seat behind Mr Addicott.

Before the accident Mr Addicott said that he was "very comfortable and content" with the way the plaintiff was driving. Ms Deng was reading Chinese newspapers in the backseat and he was "thinking about the difficulties of the valuation tasks that were in front of me" and looking out to the west (which was to the left of the car). It is common ground that the vehicle was travelling at 90-100 kph immediately before the accident. The accident occurred at about 9am.

The circumstances of the accident are controversial. What is relatively uncontroversial is that at a point about 70 kms north of Coober Pedy, the Subaru commenced an erratic path which seems to have been as follows:

(i) A movement to the left so that both left-side wheels of the Subaru entered onto the gravel shoulder of the western side of the highway.

(ii) A correction to the right so that the Subaru crossed the centreline and entered the southbound lane.

(iii) A correction to the left so that the Subaru re-entered the northbound lane.

(iv) A yaw to the right, across the whole of the road surface and beyond the gravel shoulder entering into a rollover.

When the vehicle came to a stop it was on its side, being the driver's side. The front windscreen was broken in the sense that it had a crazed pattern but had not shattered and remained in place. The plaintiff was slumped against the door of the car in the driver's seat on her side. Mr Addicott said that she was within her seatbelt but leaning against the driver's side door. Mr Addicott was retained by his seatbelt.

Following the accident, Mr Addicott tried to get some response from the plaintiff and was successful in getting her to open her eyes. He could also hear Ms Deng moving in the back of the car. He was able to punch out the glass in the passenger window above his head and was able to get out of the car. Either at that time or in the course of the accident, he suffered a gash to his right arm which severed some tendons and which subsequently required an operation.

Mr Addicott was unable to find his mobile phone and commenced walking along the Stuart Highway. Within 5 minutes he was able to stop a car which was being driven by two visitors from France. Ms Deng was able to extract herself from the car without Mr Addicott's assistance. When he returned with the French couple, she was already out of the car. Mr Addicott estimated the time between him exiting from the car and returning with the French couple at about 5 and 10 minutes.

There was an issue between the parties as to the position of the plaintiff's right arm following the accident. This was relevant to the question of whether she had been wearing a seatbelt or not. In cross-examination Mr Addicott's evidence on this issue was:

"Q. When you got back to the car you saw Qier was lying with her arm out the car window?

A. Her arm was somehow under the car. I can't at the moment visualise where it was, whether the car was sitting on her.

Q. When you say the car was sitting on her -

A. Somehow or other she was pinned at that point.

Q. She was pinned at the top of her arm, the right arm?

...

A. I can't remember with any great detail.

Q. We will see if this photograph refreshes your memory. Would you have a look at this photograph, please. Looking at this photograph, take a moment if you would like to carefully look at it. Does that depict the Subaru on its driver's side with Qier's arm protruding out to the right of the top of the car?

A. Yeah, it appears to, yes.

Q. Who is the lady? There seems to be a lady bending over with a black and white striped top on.

A. I don't know who that is.

Q. And the male person with the shorts on the right-hand side of

the photograph is a passerby?

A. I presume so. I was dressed differently to that that day.

Q. The position of Qier's arm as depicted in this photograph, is

that how you recollect how her arm was pinned under the car after

the collision?

A. I don't remember how she was pinned at the time that I saw

her.

Q. But her arm was pinned?

A. The arm appeared to be pinned at the time." (T.32.39 - 33.22)

Some other cars arrived after the French couple and at approximately 10.15am, Constables Baker and Agostino from the South Australian Police Service arrived. The police were the first of the Emergency Services to arrive at the accident scene.

The plaintiff was not able to be released from the Subaru until SES personnel arrived. The plaintiff was transferred directly to the Royal Adelaide Hospital while Ms Deng and Mr Addicott were taken by ambulance to the Coober Pedy Hospital. Ms Deng and Mr Addicott flew to Adelaide the following day. On 18 December 2008 the plaintiff was transferred to the Prince of Wales Hospital in Sydney.

Mr Addicott's evidence

An important question on the issue of liability is how the accident occurred and whether a vehicle, other than the Subaru station wagon was involved. In order to resolve this question, it is necessary to carefully examine the evidence relevant to it. Mr Addicott's evidence as to how the accident occurred was as follows:

"Q. Relevant to the accident what did you first feel, experience,

see or hear?

A. My first feeling was that of buffeting.

Q. Buffeting is a word, what does it mean?

A. It means the shuddering effect, like the effect of which

happened on, blowing on the side of a house or the car, and I

could recognise that as a truck passing us. It, it didn't worry me

particularly at the time because I had experienced it many times

before.

Q. And what did you next see or feel?

A. The next, it, from then on everything started to happen very quickly indeed. Qier moved the car to the left, the passenger side wheel got into the gravel. Her, the driver's side wheel was still on the road, on the bitumen and the, the front of the car was showered with gravel and dirt and my vision was obscured by the, the rear trailer of a vehicle of some kind.

Q. There is a lot in what you just said and I wanted to try and divide it up?

A. Yes.

Q. Are you absolutely confident about the order of events?

A. Yes, it...

Q. The first thing you mentioned as I recall it was the wheels on to the dirt on the left-hand side of the bitumen?

A. I don't know whether it was wheels or one wheel. It was certainly the front passenger wheel. Whether the rear passenger wheel was off the road as well I could not say with certainty. The driver's wheel was certainly on the bitumen and -

Q. Are you able to say now how long that happened?

A. No. Look, I only revisit this time with great difficulty and it all

happened in a very, in a very short period, that is all I can say.

Q. When you said difficulty what did you mean? Did you mean emotionally?

A. Yes.

Q. You then, in the second of three things, mentioned a spray of I

think you said gravel?

A. Gravel and dirt and stuff being flung up in front of the car.

Q. Where did that come from, the left or the ride or straight ahead?

A. It came from directly in front and my vision was obscured. Firstly by the cloud of dust and gravel flying up at the car but through it I could see the rear of a trailer carrying, it was either an enclosed truck or carrying a large container. It was I think a creamy or dirty white colour and there were aluminium strips to each side. But once again it was happening very quickly and this stuff was being thrown up at the car.

Q. Even in that you mentioned a few different things I want to take you back to?

A. Yes.

Q. You mentioned a truck. Were you able to see the automotive force, the vehicle, the prime mover?

A. No, no.

Q. So you have just assumed that what you saw was what you

described as a container?

A. Virtually a container or a rear part of an enclosed trailer, yes.

Q. When you used that expression, container, are you referring to

something?

A. Like a shipping container.

Q. You spoke of the gravel and dust et cetera. Did that impede your view?

A. It did.

Q. Were you able to see any markings on the truck or the trailer or the container?

A. No, I wasn't. It was drawing away but at that time, once again we are talking about a sequence of events, it was drawing away but I was certainly occupied with other things that were happening at that time.

Q. When you first saw the rear of the trailer where was it?

A. It was very close. I'd say within three metres of the front of the

car.

Q. Was it travelling entirely within one lane or was it between

lanes?

A. I'd say it probably had one wheel off the road, too.

Q. On the left-hand side or right-hand side?

A. On the left-hand side.

Q. What makes you say that?

A. Because of the dust that was coming up. If it was completely on the bitumen I doubt there would have been that kind of stuff being thrown at us.

Q. And when you say you saw the rear of it, you said that it was moving away. How rapidly was there a distance being created between the car in which you were travelling and the container?

A. It was moving away very quickly. I can't say what speed and certainly, as I say, I was distracted by other things going on at the same time.

Q. What happened to the car in which you were placed?

A. Qier got the car back on to the road, got all wheels back on to the road. At that time it, it was as if the car was on ice. It, it serious simply seemed to be running down the road. She was clinging to the wheel and I said "Are you okay?" And she said "No" and I just realised there was nothing I could do to help her. I couldn't interfere in any way and that is something that I've held myself guilty for since.

And the car continued down the road. Even if I'd been driving I don't believe I could have controlled it and then gradually, or not gradually, I'm sure it was very quickly in a time sequence, it veered to the right and was heading into the dirt and gravel on the right-hand side of the road.

I had this vague hope that the effect of driving into dirt would slow the car down and reduce its momentum but it, it started to turn over. I had this vision of the ground coming up towards me, the red ground coming up towards me. As the car turned it rolled to the left." (T.22.39-25.15)

Under cross-examination Mr Addicott described how the accident occurred as follows:

"Q. You told us as your car neared where the accident occurred you felt the sensation of buffeting?

A. I did.

Q. You've described to us what that is. At that time you didn't see anything that was causing the buffeting?

A. I didn't, because I've felt that motion on many previous occasions driving up and down that road, so it didn't in itself particularly alarm me and I was concentrating on some fairly thorny issues, but I probably would have - the sequence of events

that I did describe happened in quick succession from that point onwards.

Q. The first time you saw what you say appeared to be the back of a truck, that image was in front of your car?

A. That's right.

Q. You never saw a vehicle to the right-hand side of your car at the time you felt the buffeting?

A. I didn't look that way, no.

Q. When you first saw what you say you thought was the rear of the truck in front of you, how far was it, that is, the rear of what you say you thought was a truck, from the front of your car?

A. I hesitate to estimate but it looked very close. It was filling my field of vision so I would imagine it was something like three metres at that point and drawing away.

Q. So that's three metres between the front of your Subaru?

A. The front of the car, not where I was sitting, of course.

Q. The front of the car and what you thought was the back of the

truck?

A. Yeah.

Q. Between the front of the car and the back of the truck, as I understood your evidence, your view was obscured by dust and gravel being thrown up?

A. Absolutely, yes.

Q. At this point part of the Subaru is off the left-hand side of the

road?

A. Certainly the passenger side wheel was off the road, the front

wheel. I'm not sure about the back.

Q. And at this time the effect of your evidence is, as I understood it, that the truck had to be off, that is, the left-hand wheels at least, off the side of the bitumen to create this dust and gravel that was obscuring your vision?

A. Yes.

Q. Was the truck that was occupying your field of vision directly in front of the Subaru at the time you saw it for the first occasion?

A. As far as I could tell.

Q. Did you see the truck continue to move away from the front of the Subaru from that very first moment you saw it?

A. It was moving away but I was distracted immediately by the sequence of events that was happening in my car at that stage.

Q. And that sequence of events was triggered by Qier turning the wheel of the Subaru sharply to the right?

A. No, not sharply. She pulled it back on to the road but it wasn't a sharp movement.

Q. Could you describe the path of the Subaru when it went back on the road?

A. How would I describe it?

Q. Yes.

A. When it went on to the road or as it was on the road?

Q. From the moment it came on to the road, that is, back on to the road having been partially off to the left-hand side, could you describe the path of the Subaru from that point?

A. It seemed to be more or less straight. It wasn't weaving. The car was out of control at that point. It would have been out of control for anyone at that point. As I say, it just felt like the car was on ice and Qier was holding grimly to the wheel.

Q. And the vehicle went off to the right, that is, the eastern side of the road?

A. To the eastern side of the road but it did run down what would probably be the centre of the road for some distance.

Q. But out of control?

A. Apparently out of control, yeah.

Q. When you say apparently, was it your impression that the driver, that is, Qier, had lost control of the car at that point?

A. Well, I don't know if she lost control, she was still retaining the steering wheel, but the car was not responding.

Q. It went up, that is, the car, up about the middle of the road?

A. It came back on to the road, got about towards the middle of the road, I would say, and then slid - well, went on its way down the middle of the road until it veered to the right. It wasn't a sharp -neither movement off from the left to the road nor the movement off the road was sharp." (T.30.8 - 31.48)

"Q. I want to take you back to the moments leading up to the car leaving the road. To recap, you first saw the truck you say that was involved in this incident when it was directly in front of your car?

A. Yes.

Q. You didn't hear any sound from the truck before you saw it in front of you?

A. I didn't.

Q. And you were not aware of its actual physical presence until you saw it three metres in front of your car?

A. I was aware of the buffeting effect and presumed that it was a truck of some kind because I had experienced that sensation before on a number of occasions driving up and down the Stuart Highway.

Q. But you didn't even turn your eyes or avert your gaze to the

right?

A. Not at that point, because everything was happening very

quickly after that.

Q. Was this the first occasion that Qier had driven with you on this

length of road?

A. On this length of road?

Q. Yes.

A. Yes.

Q. After you, as you say, felt a buffeting sensation, did you hear Qier say anything?

A. I don't recall her saying anything until I asked her when the car was careering down the road after she got back on to the bitumen, all wheels back on to the bitumen when I could see there was nothing I could do, I said, "Are you okay?" And she said "no".

Q. That's all she said, "no"?

A. She was hanging on for grim death and sailing down the road

clutching the steering wheel and obviously highly stressed.

Q. I put it to you, Mr Addicott, that in fact you didn't experience any buffeting sensation immediately before Qier lost control of the car, that's not the truth of it.

A. I am sorry?

Q. I am putting to you that you did not experience any buffeting sensation in the car immediately before Qier lost control of the car?

A. Well, I did." (T.55.6 - .48)

There is a major difficulty with the evidence of Mr Addicott as to how the accident occurred and the presence of an overtaking truck. The difficulty is that on a number of occasions following the accident, when he was asked how the accident occurred, he made no mention of any other vehicle. On some occasions he denied that another vehicle was involved.

Constable Baker spoke to Mr Addicott at the accident scene and asked him how the accident had occurred. Constable Baker took notes in dot point form of what he was told. Mr Addicott told him that the plaintiff had "lost control" (T. 141.11) and made no mention of there being any other vehicle involved in the accident. Although he had spoken to Mr Addicott for only a short period of time, Constable Baker said that Mr Addicott "didn't appear to be exhibiting any signs of being too distraught" (T.134.9).

While Constable Agostino made no notes of her observations or

discussions at the accident scene, she had a clear recollection of having spoken to Mr Addicott. Her evidence on this issue was:

"Q. What did you ask?

A. Along the lines of what happened, and --

Q. Do you remember his response?

A. To the effect, not exact words, that he didn't know what had caused the accident, that one moment they had been driving along the road and the next moment they were rolling off it or involved in an accident.

Q. When abouts did this conversation take place in relation to your initial arrival at the scene?

A. I can't remember whether I had it immediately with him. I had a conversation with him, I remember he was being treated by the ambulance while sitting at the side of the ambulance. I can't remember whether that conversation was part of that or whether it was before the ambulance got there, but it was at some point at the scene.

Q. And do you have a clear recall of this conversation now?

A. Yes." (T.158.44 -159.11).

When Mr Addicott was cross-examined as to these conversations, his response was:

"Q. Was it firmly burnt in your mind at that time, though, that the

cause of Qier leaving the road had been the overtaking heavy

vehicle?

A. I don't remember what my comprehension of the situation was

at that time. As I say, my foremost thought all the time was Qier's

safety.

Q. Is it the case that it has been firmly fixed in your mind since this incident that the cause of Qier leaving the roadway was the actions of the driver of this truck?

A. As I have been able to reflect on the accident, after that initial period of trauma, I suppose, when I simply just didn't know what was going on at all, I didn't have myself together, I can sequence the events and say that yes, the intimidating effect of the truck would have caused that deviation off the road to the left and then back on to the road.

Q. And that's a clear image you have fixed in your mind after this initial trauma, as you've called it?

A. Yes.

Q. And this initial trauma, what sort of period are we talking

about?

A. I would say I was at that level of trauma that I am describing, it

would have persisted for a fortnight to three weeks. I was still

taking medication for pain for my arm injury, I was still vomiting

and fainting. Su Li had to wash me and help me dress. I had no-

Q. Do you recall two police officers being the first emergency personnel who arrived at the accident?

A. I do, yes.

Q. A male and a female?

A. Yes.

Q. And they both asked you how the accident happened?

A. They - my memory is not clear on the process, but they would

have, no doubt.

Q. To the female police officer you said you didn't know what had

happened?

A. I don't remember.

Q. Do you remember the male police officer having a notebook

with him?

A. No, I don't remember.

Q. He may have had but you don't now recall?

A. I don't recall that, no.

Q. He asked you specifically how the accident had happened, did he not?

A. I can't remember. As I say, my memory of those subsequent events is kind of limited.

Q. I put it to you that male police officer specifically asked you how the accident happened and you said that Qier lost control?

A. If that's his recollection I probably did.

Q. You didn't have any notion of how the accident occurred at the scene of the accident, did you, you simply knew that Qier had lost control?

A. No. At the time my main priority was Qier and I was only answering questions that were put to me in the words that I could find at the time. I remember thinking I've got to keep myself together, I've got to keep myself together, but that certainly was a very extraordinary time." (T.34.41 - 35.48)

Ms Ralph, a case manager with the Australian Taxation Office, gave evidence concerning her contact with Mr Addicott following the accident. As a case manager, her objective was to return Mr Addicott to work as soon as possible. This involved discussing with him what his injuries were, looking at whether a rehabilitation provider should be engaged and whether medical assessments were necessary. She had an independent recollection of Mr Addicott because "it is the only motor vehicle accident that I've had to deal with and also because Mr Addicott was a Senior Executive Service level officer, which is quite high in the ATO, quite a fuss was made at the time to look after him" (T.191.13).

This recollection was supported by entries which she made under a computerised system known as "PIE" (People Issues Escalation System). Her entries into the computer system were based upon handwritten notes taken at the time but subsequently destroyed. These computer printouts became exhibit 10. This contact with Mr Addicott took place in November 2008.

Her evidence concerning what she was told by Mr Addicott was:

"Q. Do you recall whether on that occasion you in fact inquired of

him as to the circumstances of the accident that had led to his

claim?

A. Yes, I do believe I did and Mr Addicott told me that the accident

happened about 100 kilometres north of Coober Pedy, that Ms

Peterson had been driving and that she had skidded on the gravel

on the side of the road and lost control of the car." (T. 192.25)

In relation to Mr Addicott's emotional state, Ms Ralph said:

"Q. And when you say you saw Mr Addicott, you said he was upset, did you have any concerns about the cogency or the reliability of the description of the accident he gave you?

A. No, he was able to discuss what had happened, even though he was obviously distressed, because he was very concerned with Miss Peterson's welfare and he didn't really want to have to come into the office to do all the admin side of things." (T. 196.41)

One of the computer entries in exhibit 10, made by Ms Ralph, described the accident in the following terms:

"The accident occurred at - 9am on Stuart Highway on 2.11.08 - a 100 km north of Coober Pedy. Qier was driving at the time of the accident. Neither Graeme nor Qier had consumed any alcohol in the 24 hours prior to the accident. Graeme believes Qier skidded on the gravel shoulder of the road, and over-corrected which caused the vehicle to roll. There was no other vehicle involved. The vehicle was "written off'.

That entry was made on 13 November 2008.

Mr Addicott was cross-examined as to his contact with Ms Ralph:

"Q. Do you recall Ms Ralph asking you how the accident

happened?

A. I don't recall the conversations, no. I, I know she was

extremely worried about Su Li and attempting to find someone

who could speak French to her.

Q. Do you recall anything you might have said to Ms Ralph about how the accident had occurred?

A. I don't, to be honest, at that time. It was all part of that overriding emotional pain I was feeling. I just felt that I was living in a nightmare at that point.

Q. But you remember the fact of the matter being that she actually

raised with you how did the accident happen?

A. I don't remember her doing so but I presume she would have done.

Q. I put it to you when you saw her on the occasion I directed your attention to, you told her that the accident occurred approximately 9am on the Stuart Highway on 2 November about a hundred kilometres north of Coober Pedy, that is correct?

A. I don't remember how accurate the time or the distances are but that is the circumstances of the case.

...

Q. And then I put it to you on this occasion you went on to tell Ms Ralph that you believed Qier skidded on the gravel shoulder of the road and overcorrected which caused the vehicle to role?

A. I don't recall those words, no. I don't recall saying that.

Q. Do you accept you may have said that to her?

A. Because I can't remember that I did, I can't say.

Q. You see, Ms Ralph will tell the court that you went on to say to

her there was no other vehicle involved?

A. It was in that sense. I meant there was no collision.

Q. Is that what you told her? That there was no other vehicle

involved?

A. In the sense that there was no collision, that was my

understanding of her question.

Q. I see. You remember the question now, do you?

A. No, but that would be my understanding of that question.

Q. Didn't you think it important if you were asked that question to explain that Qier had been forced off the road by a large truck?

A. I don't remember at that time, I'm sorry." (T.38.34 - 39.34)

Evidence was given by Ms Bright, who in November 2008 was a customer services officer with a company called Sureplan. Sureplan was an organisation which lodged insurance claims in respect of car accidents involving vehicles made available to Senior Executive Service Officers such as Mr Addicott. While Ms Bright had no independent recollection of what she had been told by Mr Addicott, she clearly recalled speaking to him and being provided by him with details of the accident. Those details she recorded by way of computer entries which became exhibit 8.

The computer entries which were made in mid November 2008 variously described the accident as follows:

"The passenger (custodian) is out of hospital and can be contacted. I spoke with him today and he provided a similar description of the accident (which has been added to file) but cannot account for the initial swerve by the vehicle that caused the driver to over correct."

"The passenger's (OC) version - 100 km north of Coober Pedy. The passenger was looking out the window when the car swerved (OC does not know why but confirmed the driver was not distracted). After the car swerved, the driver attempted to correct it but has lost control and the car has left the road on the right hand side and has started to roll several times, with the resultant damage."

"The incident reporter was not provided with complete information.

The custodian (passenger) advised there appears to be no mechanical fault. He believes the driver over-corrected after skidding on some gravel and has left the road, rolling the vehicle."

Mr Addicott was cross-examined in relation to his contact with Ms Bright as follows:

"Q. I put it to you on 18 November, that is 2008, some 16 days after the accident, Ms Bright of Innovations Sureplan contacted you about processing the claim for insurance and asked you for a description of the accident?

A. I, once again I have no memory of that conversation.

Q. I put it to you that in such a phone call she told you that the, the description of the accident that was available to her was that about a hundred kilometres north of Coober Pedy the passenger was looking out the window, and that was you. When the car swerved, you didn't know why but confirmed the driver was not distracted after the car swerved. The driver attempted to correct it but lost control and the car has left the road on the right-hand side and started to roll several times with the resultant damage. And you advised there appears to be no mechanical fault and you believe the driver overcorrected after skidding on some gravel and left the road, rolling the vehicle. And that you communicated, when describing the accident, the circumstances that both you and Qier were in hospital. I'm putting to you that is the effect of what Ms Bright said was a description of the accident available to her from the records that she had control of?

A. That was her summary of what that conversation was, are you saying?

Q. I'm saying that is what she put to you. This is the conversation

to which I directed your attention which I'm suggesting to you

occurred on 18 November 2008?

A. I don't remember the conversation but the point was that I was

not in hospital. I'd been operated but I was not admitted to

hospital.

Q. Putting that to one side the description of the accident that I'm

putting to you that Ms Bright recited to you was to the effect that

I've just put to you. Do you recall that occurring?

A. I don't recall that conversation and that apparently is her

summary of what she understood to be the subject of the

conversation.

Q. You accept that that may have been put to you in a

conversation you do not now recall?

A. I don't recall the conversation so I can't accept or deny.

Q. Isn't that description of the accident that I've just put to you

which was summarised to you by Ms Bright, isn't that in fact what

occurred?

A. Not so. Only partially. If the car left the road to the left, came

back on the road and then was out of control, those elements are

right. The car turned over. Qier ended up in hospital. I spent a

few hours in hospital but that, that's...

Q. Yes, but in the description that I put to you and suggest that it was in turn put to you by Ms Bright, there is no mention of another vehicle at all, is there?

A. Apparently not.

Q. When you spoke to Ms Bright in this conversation which you

say you do not recall, I put to you that you added, when you spoke

to her, that you could not account for the initial swerve by the

vehicle that caused Qier to overcorrect?

A. I can't recall a conversation, that's all I can say." (T.41.17 - 42.18)

Evidence was given by Ms Neil, who in November 2008 was employed by the Royal Adelaide Hospital as a compensation officer. Her role was to determine whether a patient at the hospital had a claim for compensation with any insurer throughout Australia. Ms Neil said that apart from documents which she had completed in relation to the plaintiff's claim she had quite a specific recollection concerning the events relating to the claim (T.179.9). Because the plaintiff was too injured to complete the forms relating to the accident, Mr Addicott completed them on her behalf.

Ms Neil remembered Mr Addicott coming to her desk on 14 November 2008 with the vehicle accident form and asking her what needed to be done in relation to it. She had filled in the form for him and said that all of the information on the form had been provided to her by him. In relation to the question on the form about details of the accident, Ms Neil's evidence was:

"Q. Do you have a recollection of speaking to Mr Addicott about this question?

A. I do.

Q. And can you tell us then, please, what question was asked by you and what answer was provided by Mr Addicott which permitted you to answer the question in that fashion?

A. I asked him the details of the accident and he advised me that he had spoken to his wife that morning and she had told him that she had swerved to miss a kangaroo and because this form is just a generalisation for our hospital we then normally just put the details like "driver, single vehicle accident" or "lost control", but he did tell me that she had swerved to miss a kangaroo.

Q. As a result of what he said you wrote "driver lost control"; is

that right?

A. Yes. He said that she had lost control." (T.181.25)

On the form (exhibit 1 and exhibit 9) the question asked was "Details of accident: (e.g. car lost control and hit stobie pole, other vehicle went through red light, etc.)" the response is recorded as "Driver lost control". Later in the same form in answer to the question "If you are not entitled to a claim through Third Party Insurance, please state reason why? i.e. driver of single vehicle, lost control" the response set out on the form is "Driver lost control". The form was signed by Mr Addicott.

In answer to a question about whether she had been told anything about another vehicle, Ms Neil's evidence was:

"Q. Just pausing there, if something was said by Mr Addicott to you about the involvement of a road train or a truck or some other vehicle, how would this form have been filled out differently?

A. It would be completely different. Because of my knowledge with CTP, compulsory third party, if there's any mention of another vehicle involved or a cow or anything like that it changes the whole perspective of the claim. If a vehicle is involved then I do advise them that they are possibly entitled to a claim." (T.182.5)

Mr Addicott was cross-examined in relation to the Vehicle Accident Form and the evidence of Ms Neil:

"Q. And do you recall attending at a desk in the finance department of the Royal Adelaide Hospital and speaking to a lady about completing this form?

A. I don't, I'm sorry. I remember going to the finance department but I don't remember the purpose or the, to whom I spoke.

...

Q. Did it occur to you that it would be important to the hospital to know whether there was some compensation that might be

received by Qier as a consequence of the accident from which the hospital could seek reimbursement of its costs?

A. Certainly not.

...

Q. You will see about four lines from the top there is a typed question, Details of Accident. I won't read the rest of the words. Do you see that?

A. Yes.

Q. The words are not in your handwriting?

A. No.

Q. But in some other person's handwriting, "Driver lost control"?

A. Mm.

Q. Is that not the detail you provided to a lady in the finance department at the same time that you attended there and in fact signed the bottom of this document?

A. Well, it must have been if she got that information but I don't recall that, those conversations, I'm sorry.

Q. And you will see the same answer appears opposite a question halfway down the page which I will not read out in its entirety. See it starts "If you are not entitled to a claim". Do you see that?

A. I see that. I don't remember that, answering that question as such. I think that must have been filled in.

Q. Aren't the two answers on this page about how the collision occurred in fact the truth of it. That Qier just lost control of the car she was driving north on the Stuart Highway?

A. Not so.

Q. In fact you tell us you don't recall this occasion when you signed the document but you acknowledge it is your signature?

A. That is my signature, yes.

Q. I put it to you that what you told the lady who completed the form for you and in front of whom you signed it, was this: You said that your wife was now able to speak to you and that very morning she had told you that she had swerved to miss a kangaroo?

A. No, I never, Qier never said that to me.

Q. Never?

A. Never." (T.43.12 - 44.37)

I do not accept the evidence of Mr Addicott as to the presence of another vehicle immediately before the accident. I am of the opinion that Mr Addicott did not see another vehicle and was unaware of the presence of another vehicle immediately before the accident.

On that issue, I prefer the evidence of Constables Baker and Agostino and of Ms Ralph, Ms Bright and Ms Neil. I found those witnesses to be impressive, particularly Constable Agostino and Ms Neil. I formed a clear impression as to each one of them, that they were doing their best to assist the Court and to accurately set out their recollections of the events of November 2008. None of those persons had any motivation to mislead the Court. Where their evidence conflicts with that of Mr Addicott as to the presence of another vehicle immediately before the accident, I accept their evidence and reject that of Mr Addicott.

Constable Baker, Ms Ralph, Ms Bright and Ms Neil were able to explain clearly the documents which comprise exhibits 1, 4, 8, 9 and 10. Those documents were consistent with their evidence as to what they were told by Mr Addicott.

I do not accept that Mr Addicott was so traumatised by the accident that he was incapable of properly describing the accident. I do not accept that he was unable to refer to a large truck driving so close to the white Subaru that it caused the Subaru to partly move off the bitumen surface of the highway to the west. Mr Addicott struck me as being a careful and meticulous person who, had he made such observations of another vehicle, would have communicated that fact certainly to the police and to at least one of Ms Ralph, Ms Bright or Ms Neil.

I do not accept his explanation that when asked whether another vehicle was involved in the accident he interpreted this question to mean whether there had been a collision with another vehicle. I am satisfied that had Mr Addicott seen and felt another vehicle as he described in his evidence, he would have said something about it to at least one of Constables Baker and Agostino and Mses Ralph, Bright and Neil.

I have concluded that Mr Addicott did not see or feel the presence of another vehicle immediately before this accident.

That finding was implicitly accepted by senior counsel for the plaintiff in the course of oral submissions. There, counsel said:

"COUNSEL FOR PLAINTIFF: ... I am not standing here to say he should be treated as a liar. I am going to put a submission now that is capable of explaining the circumstances, that Mr Addicott may, an enormously emotional matter for him, have reconstructed this. I am not also going to put to your Honour that Mr Addicott gave accounts under some disadvantage because he was frightened, shocked, emotional, et cetera. They went on for too long.

HIS HONOUR: That's the troubling feature. Had it just been what he said to the police followed up a few weeks later by a change, you may say, well, that may well be a very fraught situation, but to do it three or four times.

COUNSEL FOR PLAINTIFF: Your Honour anticipated that that may be my answer. It is not. I will tell you what my answer is. We submit that the probability with Mr Addicott is that he did not see what happened. He was probably distracted. Probably alerted to it and when it happened he did not see what happened.

Is there a possibility that in the agony of that moment the car, losing control, he looking at his wife - they had not been together all that long - and he did not see what happened.

Imagine for the moment if Graeme Addicott had come before your Honour and said: I was looking there, thinking about some tricky valuation I had had to carry out and she lost control of the car. It began swerving across the road, it rolled out over the other side of the road. I don't know what caused her to lose control. That could be consistent with there being no truck but it also could be consistent with there being a truck which he did not see. That is our explanation and that is what we ask your Honour to find. But that is all I can say about it." (T.280.41 - 281.17)

Similar observations were made in the plaintiff's written submissions:

"36 It is accepted that Mr Addicott's evidence has problems and the absence of a contemporaneous account by him means that his evidence is of very limited value.

37 This is not an acceptance that Mr Addicott is a liar - far from it. Rather, his evidence probably suffers from the problem that it is a reconstruction, built upon the observations of Ms Peterson and Ms Deng. It is submitted that Mr Addicott is a careful and considerate man, who was truthful when he says that he bears some guilt in relation to the incident.

38 The Court may prefer to put Mr Addicott's evidence aside and to test Ms Peterson's case by reference to the other evidence. Putting Mr Addicott's evidence aside does not damage Ms Peterson's case. The balance of the evidence is sufficient to prove the case."

The problem created by Mr Addicott's evidence is not as simply resolved as the plaintiff's written submissions would have it. It is not just a question of putting Mr Addicott's evidence concerning another vehicle to one side. If, as I have found and as appears to have been conceded by the plaintiff, Mr Addicott did not see or feel a truck passing the Subaru, the question remains how could that be so if in fact a truck did pass the Subaru in the manner described by the plaintiff and Ms Deng.

Mr Addicott's failure to see any such truck needs to be reconciled with the evidence of the plaintiff and Ms Deng.

The Plaintiff's evidence

The plaintiff was born in July 1962 in Shenyang, a city in China. Her principal language is Mandarin. She speaks a little English. She married a Mr Peterson, who was a student living in China and came to Australia with him in August 1993. That marriage broke down and they were divorced. While living in Darwin, the plaintiff met Mr Addicott and they commenced living together in 2008 in Canberra. At the time of the accident, the plaintiff had had an Australian driver's licence for over 10 years.

It was her evidence that she put on a seatbelt when she became the driver of the Subaru after leaving Coober Pedy. She said that because Mr Addicott's legs were longer than hers, she moved the seat forward. She said that she wore a seatbelt every time that she drove a motor vehicle. She said that immediately before the accident, the vehicle was travelling a little over 90 kph.

The plaintiff's description of how the accident occurred was as follows:

"A. After I started driving it wasn't long, not more than half an hour. I saw from the rear view mirror that a big truck was approaching behind. I saw the truck about 50 to a hundred metres behind.

Q. What happened after that?

A. I, because of the truck was travelling at a fairly high speed, I moved, I moved my car to the side a bit to try to give way to the truck. I don't know how, how far the truck was behind me.

...

Q. When you first saw the truck did you do anything about your

speed?

A. I increased my speed to some extent and moved, while I

moved to the side of the road.

Q. Do you know how fast you were going when you increased

your speed?

A. About a hundred.

Q. And when you increased your speed to a hundred the truck

continue to gain on you?

A. Yes. It was very close and also very high speed.

Q. You say you moved your car to the left. When you moved your

car to the left where was the truck?

A. The truck was behind me and it, it honked its horn once.

Q. I did ask you, when you moved your car to the left where was the truck? Was it still behind you? Next to you? Where was it?

A. It was overtaking me.

Q. From where you were sitting in your car how far away, you can indicate this with your hands or by whatever means, how far away was the truck from your car?

A. When I moved my car to the left side the truck then overtook me from my right side.

Q. Now, I'm asking you at the time you moved your car to the left. How much distance was there between your car and the truck?

A. Are you asking about the distance between these two vehicles when it overtook me?

Q. Yes. How far was between the two vehicles?

A. About that distance.

COUNSEL FOR THE PLAINTIFF: A metre and a half.

COUNSEL FOR THE DEFENDANT: Yes.

Q. Could you feel anything in your car when the truck was next to

you?

A. My car was shaking.

Q. Could you control it?

A. At that time I could control it.

Q. Why did you move your car to the left?

A. Because after the front of the truck passed me the rear part of the truck was very close to my car. If I didn't move to the left the truck would have hit my car.

Q. In terms of moving to the left, when you moved to the left how close was the truck to your car?

A. I showed you before, it was that close when the truck overtook me. Because the truck was travelling very fast the rear part of the truck was going to hit my car. If I didn't move my car to the left the truck would have hit my car, so to avoid the collision I moved to the left and I moved to the left further. The wheel at that time left the road and was actually on the dirt and the grass part of the road.

Q. Compared to the speed of your car, was the truck going faster? A. Very fast.

Q. After you felt your wheels leave the road surface and go on to the dirt and grass, what happened next?

A. Then I swerved to the right to try to correct the car. It went to the right and rolled over.

Q. Could you describe to the judge what the truck looked like?

A. The truck was very big, very long. It was around the end of the first trolley.

Q. Could you start that again?

A. It was very big, very long. It was around the end of the first

trolley and the beginning of the second trolley.

Q. I don't understand that. Could you describe what you mean by a trolley?

A. The trailer part of the truck, there is a truck cabin at the front and then the trailer part.

Q. And with the trailer part, were there different parts to the

trailer?

A. I don't understand what you mean.

Q. You said there was a cabin part?

A. The cabin and then three parts of the trailer part of the truck."

(T.61.22 - 64.6)

The plaintiff was cross-examined as to how the accident occurred. She said that she first observed the truck in her internal rear view mirror. The truck was about 50 -100 metres behind at that time and she observed its cabin to be white in colour. She said that the truck was directly behind her vehicle when she first saw it. She looked in her rear vision mirror when she heard the truck sound its horn.

The plaintiff's further evidence under cross-examination was:

"Q. At that time when you looked in your mirror and saw the truck after that honk, what side of the road was the truck?

A. When I heard the honk I moved my car to the left and then the truck started overtaking me.

Q. I want to know when you looked in your rear vision mirror when you heard the truck honk its horn, was it straight behind your car or was it on the wrong side of the road?

A. After I heard the honk I started to move into the left. The truck moved forward some more and it started overtaking me.

Q. Did you see the truck move to its wrong side of the road?

A. The truck didn't move into the wrong side of the road. When it, the road had two lanes, one for each direction. When the truck overtook me I increased my speed and went forward and the truck overtook me but it stayed, the truck stayed in the right lane at all times.

Q. When you say the right lane?

A. Correct. The correct lane.

...

A. Before the truck overtook me it was in the same lane as I was travelling. When the truck overtook me I'm not too sure whether it went over the midline into the wrong lane. I didn't know about that.

...

Q. And you have told us about the honk you heard. Was that a

very loud noise?

A. The normal, the normal sound of a honk.

Q. Did it startle you?

A. No, it did not. I just moved to the side and increased speed a

bit.

Q. Was there only one honk that you heard from the truck?

A. Yes, that is correct.

...

Q. When you first felt this movement you have told us about in your car, where was the front of the truck in relation to where you were seated in your car?

A. Not far away.

Q. Was it in front of where you were seated, that is your position in the car? Or was it behind where you were seated in your car? I'm talking about the front of the truck?

A. It was, I felt the movement when it was very close to where I was sitting.

Q. When you felt this movement you have told us before it was shaking, where was the left-hand side of your car?

A. At that time I had already moved to the left a bit. They were still on the left side of the road.

...

Q. You mean your car was on the left side of the road but was it

all on the bitumen?

A. One wheel was very close to the grass already.

Q. Do you mean front left-hand wheel of your car?

A. Yes.

...

Q. I'm asking about the cabin. How close was the side of the cabin of the truck to your side of the car as the cabin went past your car? A. About that.

COUNSEL FOR DEFENDANT: Witness indicating a metre. About a metre?

COUNSEL FOR PLAINTIFF: Yes." (T.65.46 - 68.35)

"Q. Are you sure there were three trailers behind the cabin of the truck that passed you?

A. I think so.

Q. And all three trailers eventually got ahead of your car after the truck passed?

A. The three trailers passed me only after I moved to the left. When I was going straight the trailers hadn't passed me yet. I moved to the left and then moved back.

Q. Ever since the accident has it been your memory that there were three trailers being towed by the cabin?

A. Yes.

Q. You have never been uncertain as to whether there were three

trailers or just a large truck?

A. No, I have never been uncertain. It was three, three trailers."

(T.71.32 -.49)

Q. Why did you increase the speed of your car if it was obvious the truck was going to pass you?

A. Because the truck honked its horn behind me so I just moved, moved forward further.

Q. Why did you not slow down your car to make it easier for the truck to go past you?

A. Because I thought if I slowed my car down it would be dangerous because the truck was very close to me already.

...

Q. Can you tell us how much faster the truck was going than your

car?

A. I think it was about 120.

Q. When you last saw the truck, where was it?

A. The final position?

Q. Yes. The very last time you saw the truck it was in front of

your car?

A. The truck cabin was in front of my car.

Q. Where was the back of the truck at the time you last saw the truck?

A. About that (demonstrating).

COUNSEL FOR DEFENDANT: Two-thirds of a metre?

COUNSEL FOR PLAINTIFF: I thought it was a metre.

HIS HONOUR: I don't think it was a metre. It was more like two-thirds of a metre.

Q. But that wasn't the back of the truck you are talking about. Aren't you talking about the side of the truck?

A. I was talking about the section between the end of the first trailer and the front of the second trailer.

Q. Did you see the whole of the truck, including the trailers, go past the front of your car?

A. At that time I started moving to the left. If I didn't, the truck would have definitely hit my car.

Q. Could you just listen to the question carefully, please. Did you see the whole of the truck, including the trailers, pass in front of your car?

A. No.

Q. So when you last saw the truck, part of the trailer or a trailer was next to your car?

A. The truck cabin passed. It was between the end of the first trailer and the front of the second trailer. Then I moved to the left because it was too close.

Q. And you did not see the truck again after you moved to the

left?

A. I moved to the left and then moved to the right again. My car

was in a straight position briefly and then moved to the right and

then fell to a lower ground.

Q. You mean on the other side of the road when you say lower

ground?

A. I moved of to the left then moved to the right. The car was in a

straight line position briefly, then the car was sort of - I sort of lost

the control of the car. The car then fell to the lower ground.

...

Q. When you moved back on to the bitumen when you turned to the right you did not see the truck again. Is that your evidence? A. At the time I was anxious to turn the wheel back. I didn't see the truck." (T.73.23 - 75.5)

The plaintiff was asked a number of questions about whether she had spoken to Mr Addicott whilst a patient at the Royal Adelaide Hospital. The plaintiff said that she could not remember and that she had no clear recollection of events until she was in the Prince of Wales Hospital.

The plaintiff was asked some questions directed to when she first told anyone about a truck being involved in the accident. Implicit in the questions was a suggestion that she had only spoken about a truck being involved after she had seen a lawyer. On this issue, the plaintiff said:

In reaching that conclusion, I have taken into account the evidence of Dr Ling. In one respect this evidence provides strong support for the plaintiff's case. Dr Ling was clearly independent and was an impressive witness. Her evidence is consistent with there being another vehicle involved in the accident.

The difficulty for the plaintiff is that Dr Ling did have a knowledge of Mandarin and was very definite as to what the plaintiff told her, i.e. that there was a truck travelling in the opposite direction which forced the plaintiff's vehicle off the road. If that is an accurate record of what the plaintiff told her, it is quite inconsistent with the plaintiff's evidence at trial.

The plaintiff cannot have it both ways. If the Court is to accept Dr Ling (as I am prepared to do) the Court should accept her as being an accurate witness. There is no basis for the Court to speculate, as it has been invited to do, that Dr Ling only partially understood what she was told by the plaintiff because of language difficulties. Dr Ling struck me as the sort of person who would have made it clear to the Court if there were any problem or ambiguity in her understanding what the plaintiff said.

On the contrary, the final question and answer put to Dr Ling was:

"Q. And you are crystal clear that she mentioned a truck coming in the opposite direction?

A. Yes." (T.115.14)

Accordingly, Dr Ling's evidence does not overcome the difficulties which I have identified in the plaintiff's evidence.

There was expert evidence at trial but that expert evidence was not of a kind as to overcome my rejection of the plaintiff's evidence. It was equally consistent with an articulated truck passing the plaintiff's car as with there being no other vehicle involved in the accident.

The two experts who gave evidence were Grant Johnston, a chartered professional engineer with a particular interest in motor accidents, and Christopher Hall, a mechanical engineer with a particular interest in motor vehicle accident reconstruction. The evidence of those experts was taken concurrently.

In their joint report (exhibit A), question 6.3 and its response was as follows:

"6.3 Is it possible to say (and if so, please do) whether the loss of control of the Subaru indicated by the northern set of tyre marks would be more consistent with:

6.3.1 The Subaru being forced off to the left of the bitumen by an unidentified vehicle;

6.3.2 The Subaru travelling off the left of the bitumen during a period of driver inattention;

6.3.3 The Subaru driver swerving to avoid an object (not being a vehicle) or an animal on the roadway; or

6.3.4 The Subaru drifting onto the incorrect side of the roadway during a period of driver inattention?

A. All of the above explanations are consistent but on the basis of the physical evidence alone (ignoring the statements) it is not possible to say which is more likely."

Was there evidence of negligence

There was evidence from the experts concerning what was a safe distance between a car such as the Subaru and a large articulated vehicle overtaking it.

"HIS HONOUR: Perhaps I'm not making myself clear and that's my fault, not yours. What troubles me is one of the allegations of negligence is that this truck, be it one of those three types, in carrying out the overtaking manoeuvre, was too close to the overtaken vehicle so as to cause the driver to get into difficulty and then roll, as we know occurred. I don't have any direct expert evidence and perhaps it is not a matter of expertise, as to, for the truck driver carrying out that manoeuvre, how close one would need to be to render that overtaking manoeuvre unsafe, and if it varies from truck to truck, I would be grateful to know that, that is, of the three trucks we are considering.

WITNESS HALL: In a way it is not at all - it is not easy to determine what that separation might be. What we can say is, unless the vehicle was within half a metre of each other, the buffeting is not going to cause a loss of control. So we are then talking about what did cause the loss of control. And that would seem to then, if the separation was greater than half a metre, that would suggest that it has been driver input that has caused the loss of control. It is then difficult to ascertain, because each driver is different, what would be an unsafe separation between the vehicles.

HIS HONOUR: Are we agreed between you both that if it was half a metre, that is just too close for a big truck, be it a B-Double, a double trailer or a triple trailer?

WITNESS JOHNSTON: Yes, anyone I think would panic at that scenario.

HIS HONOUR: So outside of half a metre, then you'd say, Mr Hall --

WITNESS HALL: Your Honour, if we look at what a normal situation might be, a semi-trailer in the middle of its lane overtaking in the overtaking lane will sit about, on a roadway of this width, 3.5 metres, will sit about 1 metre away from the - sorry, half a metre from the centre line and then the other, the vehicle being overtaken sitting in the middle of its lane, will be about say 800 millimetres from the centre line. So under typical circumstances we are looking at about 1.3 metres separation and that's just a normal overtaking situation.

WITNESS JOHNSTON: Yeah, I think I agree with that and at 1.3 metres it is not inherently unsafe. I don't think it's the distance that's the issue. I would be not - I would be completely comfortable a truck overtaking me 1.3 metres away. My mother-in-law, on the other hand, would require me to slow down and move further left. She is not comfortable at all around trucks in that particular scenario. So the issue is not what the spacing was, but what the spacing becomes. I was always of the view the spacing was closing and closing and closing as they moved left. That gave them little opportunity but to move left. If she was uncomfortable with a metre or even uncomfortable with a metre and a half and then moved, she was in the middle of her lane on that assumption, gave herself the other .8 of a metre and drove on the left edge of the road, but then the truck moved to within another metre, then you moved again, that is more the issue that you are consuming her, the driver's fat margin of safety, because they are not comfortable with the valuation distance.

HIS HONOUR: That also would seem, if the distance is closing in that way, that would seem to presuppose some failure to take reasonable care that the truck driver is really not very conscious of what his trailers are doing.

WITNESS JOHNSTON: Yeah, the back of the vehicle's coming back too quick, if that perception is of course correct.

HIS HONOUR: Mr Hall?

WITNESS HALL: Yes, I agree with what Mr Johnston has said. In terms of what the trailer will be doing, at a speed of 100 kilometres an hour, 110 kilometres an hour, the trailer will follow the front of the semi-trailer very closely. It is not going to swing in any further than the prime mover would. So the path that the prime mover takes, the trailer will follow that very closely.

WITNESS JOHNSTON: Yeah, that is pretty much correct. Indeed, it is slightly outside. When you are at a high speed turn, you actually have a slightly positive off track, but it is only centimetres. " (T.231.44 - 233.12)

The importance of that evidence is that even on the plaintiff's version of events, there were real difficulties in establishing negligence on the part of the overtaking truck, if in fact there were such a truck. The plaintiff's estimate of distances varied in her evidence. In chief she indicated that when the cabin of the truck passed the Subaru it was approximately 1.5 metres away. Later she suggested 1 metre. On the expert evidence, the trailers would have followed the prime mover and would have followed the same track as the prime mover. That places considerable doubt on the plaintiff's evidence that she moved to the left of the road because she thought if she did not do so she might collide with the rear of the truck, i.e. the rear trailer.

Of course the plaintiff gave another version which had the Subaru moving to the left even before the truck had commenced overtaking. On that scenario, negligence on the part of the truck driver is even more difficult to establish.

If, contrary to my primary finding, there was an overtaking truck involved with this accident I am not satisfied that, on the basis of the plaintiff's evidence, negligence could be established against the driver of such a truck. The manoeuvre undertaken by the driver of the truck was a legally permissible one and would not be regarded as unreasonable in circumstances where the plaintiff was travelling at about 90 kph in an open roadway with a speed limit of 110 kph.

It is not clear from the plaintiff's evidence whether she moved to the left of the road after, during or before the truck passed. She gave all three versions in evidence. Her estimates of the distances between the overtaking truck and the Subaru varied between 1.5 metres and 1 metre. These were very general estimates made by reference to objects in the courtroom. On the plaintiff's evidence what seems to have occurred is that the plaintiff over-reacted to seeing the approach of the truck, causing her to drive off the highway and then lose control when she attempted to correct that manoeuvre.

The plaintiff's evidence of accelerating to a 100 kph when she saw the truck approaching in her rear mirror is a somewhat odd reaction. It is also consistent with the plaintiff over-reacting to the presence of the truck.

In any event, for the reasons indicated, the plaintiff is the only source of evidence as to the movement of the truck. Her evidence on this issue is vague in the extreme and to the extent that there is any clarity, it is internally inconsistent in significant ways. At no point, however, does her evidence indicate in the way described by Mr Johnston that the truck as it overtook the Subaru was getting closer and closer to it so as to take up or occupy the space available to the Subaru in its lane thereby forcing the Subaru to drive off the highway.

Although speed was particularised as an element of negligence, there is no evidence from the experts or from the plaintiff that the speed of the truck made any contribution to the accident. On the plaintiff's evidence the only basis upon which negligence could be established against the postulated truck driver was that in overtaking the Subaru he travelled too close to it.

Another difficulty for a court in making a finding against the suggested overtaking truck is that there is no clear evidence as to the location of the Subaru at any given time, and there is no clear evidence as to the location of the truck at any given time. What the Court is left with are conflicting estimates of the distance between parts of the truck and the Subaru at different and imprecise points in time. Such a variation in distance during the overtaking manoeuvre is not supported by the evidence of the experts set out above, i.e. the trailers would follow the track of the prime mover.

Accordingly, even if I accepted the plaintiff's evidence as to the presence of an overtaking truck immediately before the accident, her evidence is not such as would enable me to find negligence on the part of the driver.

Although it is not necessary for the Court to provide an explanation for how the accident occurred, the likelihood seems to be that postulated in the questions put to the experts, i.e. inattention on the part of the plaintiff as driver allowing the vehicle to move to the western side of the highway and then a loss of control when she tried to rapidly correct that movement by turning the steering wheel to the right.

Perhaps the most accurate description of what occurred is that given by Mr Addicott to Constable Agostino when she spoke to him at the accident scene:

"A. To the effect, not exact words, that he didn't know what had caused the accident, that one moment they had been driving along the road and the next moment they were rolling off it or involved in an accident. " (T.158.48)

It follows that there must be a verdict entered for the defendant.

The seat-belt issue

For completeness, I should deal with an issue that took up some time in the trial, i.e. whether the plaintiff was wearing a seatbelt at the time of the accident.

I have concluded that if the plaintiff were not wearing a seatbelt this would only have occurred by way of a deliberate choice on her part. I have reached that conclusion because of the noisy beep which would have continued for approximately 108 seconds if the driver were not wearing a seatbelt. Mere inadvertence or oversight could not explain it.

The plaintiff's evidence was unequivocal that she attached the seatbelt when she took over driving from Mr Addicott. Mr Addicott's evidence is to similar effect. He said that he had a clear recollection of the plaintiff attaching the seatbelt since it was necessary for him to adjust her seat to enable her to drive more easily. Ms Deng gave evidence to similar effect. The plaintiff said that she continued to wear the seatbelt until the accident occurred.

Mr Addicott said that after the accident he observed the plaintiff to be still within her seatbelt but that her right arm appeared to be pinned by the car. He could not remember exactly how the arm was pinned.

Ms Deng gave evidence, in considerable detail, as to how she unbuckled the plaintiff's seatbelt following the accident (T.81.38, 82.15, 91.31). She denied that the plaintiff's right arm was pinned (T.85.32). She said that she moved the plaintiff's right arm on a number of occasions and put a cushion and clothing underneath it (T.87.39, 88.37).

I have already indicated why I do not accept Ms Deng's evidence about what happened at the accident site after the accident. There are, however, some other difficulties with her evidence concerning unbuckling the seatbelt.

The expert evidence was that the moment the seatbelt was unbuckled it would have retracted as far as it was able. Having then retracted, it would not have been possible for the seatbelt to have been extended again. In other words, it would have been extremely difficult, if not impossible, for the plaintiff to have been extracted from the seatbelt in its partially retracted state. The fact that Ms Deng made no mention at all about the seatbelt retracting when she unbuckled it and made no mention of any difficulties she experienced as a result of the seatbelt becoming partially retracted, leads me to conclude that she did not in fact unbuckle the plaintiff's seatbelt following the accident.

Accordingly, I reject Ms Deng's evidence on this issue. This analysis confirms my earlier rejection of her evidence concerning her recollection of events which occurred at the accident scene after the accident.

The evidence of Constable Baker was equivocal on this issue. He had indicated on the accident report form that the plaintiff was wearing a seatbelt. He was, however, unable to recall the basis upon which he made that entry. He said that if the plaintiff had not been wearing a seatbelt, he would have expected much more trauma about her head, face and body (T.133.5). On the other hand, he had a clear recollection of her right arm being pinned (T.138.29, 139.3, 139.15, 142.32). Constable Agostino also had a recollection of the plaintiff's right arm being trapped (T.158.4, 158.8, 158.14). She did, however, say that if she had noticed that the plaintiff was not wearing a seatbelt, she would have recorded this (T.161.46).

The significance of the observations of Mr Addicott, Constable Baker and Constable Agostino that the plaintiff's right arm was pinned or trapped was that the experts agreed that if that were so, it would not have been possible to remove the seatbelt without cutting it. The photographs made it clear that the seatbelt was in its retracted position and had not been cut.

The photographs taken at the accident scene were inconclusive. They were consistent with the plaintiff's right arm being pinned by part of the car. They were also consistent with there being some space between the car and the plaintiff's right arm. One of the difficulties with the photographs was that it was not known exactly when, in relation to the sequence of events following the accident, they were taken. The photographs show what could be a cushion or clothing around the plaintiff's right arm, but do not provide sufficient detail so as to indicate whether the cushion/clothing was actually underneath the arm.

Both Mr Johnston and Mr Hall put forward, albeit somewhat tentatively, theories as to the interpretation of the photographs in relation to whether the plaintiff was wearing a seatbelt at the time of the accident. Mr Johnston opined that his theory was consistent with the seatbelt being worn while Mr Hall reached the opposite conclusion. I do not find it particularly profitable to analyse these competing theories.

As indicated, neither theory was put forward with great conviction and both theories depended upon the interpretation of photos which both experts agreed involved a significant risk of error.

The final piece of evidence on this issue was exhibit K. This was an ambulance report which noted that a seatbelt had been worn. The author of that report did not give evidence and the basis for that notation on the report is not known.

The significance of whether or not the plaintiff was wearing a seatbelt arises from s49(3) of the South Australian Civil Liability Act . That section provides that where a seatbelt is not worn, there will be a finding of 25 percent contributory negligence against the plaintiff. As with New South Wales law, the defendant carries the onus of establishing that a seat-belt was not worn.

On this issue I have concluded that the defendant has failed to establish that the plaintiff was not wearing a seatbelt. My reasons are these.

As I have already indicated, I found both police officers to be impressive witnesses, who were impartial and who were doing their best to assist the Court. In that regard, I accept the comment by Constable Agostino that if she had noticed that the plaintiff was not wearing a seatbelt she would have made a note of it. It seems to me that there is a certain practical common sense in the evidence of Constable Baker that had the plaintiff not been wearing a seatbelt, he would have expected to see far more trauma about her head and the rest of her body.

I also found the evidence of Mr Addicott on this issue to be persuasive. One of the matters which counted against my acceptance of his evidence as to the existence of a truck is the very reason why I accept his evidence on this issue. I found Mr Addicott to be a rather meticulous and careful person. I accept that he would not have allowed the plaintiff to drive without wearing a seatbelt.

I accept that there is a significant body of evidence to the effect that the plaintiff's right arm was pinned in some fashion beneath the car but that evidence is of a general kind and does not indicate the extent to which the right arm was pinned or trapped. For the reasons already indicated, the opinions of the experts based as they are on the photographs and on unestablished assumptions are not decisive. It would, of course, be quite unsafe for the Court to try to reach its own conclusion based on the photographs.

On balance, therefore, I have not been persuaded that the plaintiff was not wearing a seatbelt at the time of the accident. Accordingly, the defendant has not established contributory negligence on this basis.

Conclusion

I make the following orders:

(1) There will be judgment for the defendant.

(2) The plaintiff is to pay the defendant's costs.

(3) I grant leave to the parties to make further submissions as to costs, should they wish to do so.

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Decision last updated: 16 June 2011

Medium Neutral Citation:	Peterson v The Nominal Defendant [2011] NSWSC 579
Hearing dates:	29/11/2010, 30/11/2010, 1/12/2010, 2/12/2010, 7/12/2010, 8/12/2010
Decision date:	16 June 2011
Jurisdiction:	Common Law
Before:	Hoeben J
Decision:	Judgment for the defendant. Plaintiff to pay the defendant's costs. I grant leave to the parties to make further submissions as to costs.
Catchwords:	TORT - NEGLIGENCE - motor vehicle accident in South Australia - question of fact - was there another vehicle involved in accident - inherent improbability of presence of other vehicle - whether sufficient evidence to establish negligence - whether the plaintiff was wearing a seatbelt at the time of the accident.
Legislation Cited:	Civil Liability Act 2004 (SA) Motor Vehicles Act 1959 (SA)
Category:	Principal judgment
Parties:	Qier Peterson - Plaintiff The Nominal Defendant - Defendant
Representation:	Counsel Mr G Watson SC/Mr S Andrew - Plaintiff Mr D Trim QC/Mr DM Wilson - Defendant Solicitors Wyatt Attorneys - Plaintiff Hunt & Hunt - Defendant
File Number(s):	2010/44657