Petracho v Daniel John Griffiths by his tutor Barbara Griffiths

[2007] NSWCA 302

New South Wales

Court of Appeal

CITATION:	Petracho v Daniel John Griffiths by his tutor Barbara Griffiths [2007] NSWCA 302
HEARING DATE(S):	16 March 2007
JUDGMENT DATE:	26 October 2007
JUDGMENT OF:	Beazley JA at 1; McColl JA at 2; Basten JA at 80
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS – negligence – contributory negligence – road accidents – Motor Accidents Compensation Act 1999 s 138 – whether plaintiff wearing a seatbelt at the time of the accident – onus on defendant to prove failure to wear seatbelt – onus not discharged. EVIDENCE – admissibility and relevance – opinion evidence – whether in the absence of expert evidence from the plaintiff the primary judge was obliged to accept defendant’s expert opinion – no such obligation – weight to be given to the evidence a matter for the primary judge. APPEAL – facts – whether expert evidence established incontrovertibly that plaintiff not wearing seatbelt.
LEGISLATION CITED:	Evidence Act 1995 Motor Accidents Compensation Act 1999
CASES CITED:	Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
PARTIES:	Loredano Isabella Petracho - Appellant Daniel John Grifiths by his tutor Barbara Griffiths - Respondent
FILE NUMBER(S):	CA 40399 of 2006
COUNSEL:	BR Toomey QC with PN Khandhar - Appellant AJ Lidden SC with JM Baxter - Respondent
SOLICITORS:	McLachlan Chilton - Appellant Brydens Law Office LP - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1408 of 2004
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	2 March 2006

CA 40399/06
DC 1408/04

BEAZLEY JA
McCOLL JA
BASTEN JA

Friday 26 October 2007

Loredana Isabel PETRACHO v Daniel John GRIFFITHS by his tutor Barbara GRIFFITHS

Judgment

1 BEAZLEY JA: I have had the opportunity of reading in draft the reasons of McColl and Basten JJA. Each has dealt comprehensively with the issue on the appeal in ways that are not materially different and I agree with each of their reasons and the orders proposed by McColl JA.

2 McCOLL JA: This is an appeal from a judgment of Murrell DCJ awarding Daniel John Griffiths, the respondent, $2,100,518 damages in respect of injuries he received in a motor vehicle accident on 26 August 2000. Loredana Isabel Petracho, the appellant, was the driver of the motor vehicle.

3 The defence pleaded that the respondent was guilty of contributory negligence in that he failed “to wear a properly fastened seatbelt”. The trial was conducted, however, on the basis that the plea was, in fact, that he had failed to wear a seatbelt at all, a plea presumably intended to invoke s 138(2)(c) of the Motor Accidents CompensationAct 1999. The primary judge held that the appellant had not established that the respondent was not wearing a seatbelt. Her Honour also concluded that had he not been, she would have reduced the judgment by 25 per cent on account of his contributory negligence.

Statement of the case

4 Early in the morning of 26 August 2000 the respondent and his uncle, Anthony Hide, accepted a lift home from a hotel in a car driven by the appellant. The car was a 1980 Mazda 323. There were five occupants in the car: two in the front, the appellant and a front seat passenger, and three in the back, the respondent and his uncle who sat on the offside and nearside respectively, and a passenger in the middle. The car had manually adjustable lap-sash seatbelts fitted in the rear outside seats, and a lap-belt in the middle.

5 While driving along a suburban street the appellant began to swerve the vehicle, which mounted the gutter and hit a tree. According to the police sketch of the accident, the vehicle rotated approximately 90 degrees clockwise after the initial impact with the tree.

6 The accident occurred at 6.20am. The ambulance records show the ambulance was called out at 6.22am and arrived at the accident scene at 6.29am. It departed the accident scene at 6.54am and arrived at Liverpool Hospital at 7.02am.

7 The respondent suffered a depressed fracture of the skull. The diagram completed by the ambulance officers shows his injury was in the centre of his forehead. The ambulance notes recorded, relevantly,

“Facial/head injury … this 18 yr [male] still in rear of vehicle, Code 9 by confinement only. Pt was Rear passenger of vehicle involved in high speed impact [with] tree (head-on). Pt states he was wearing safety belt, ?LOC. Pt [with] depressed # frontal region [with] open laceration. Face and hair blood soaked – unable to determine other obvious injuries. Pupils = and reacting …No obvious limb injuries Pt vomiting on scene. Assistance requested. En route to LDH whilst passing Code 3; pt became cerebrally irritated removing all straps, collar. Pt then fitted was trismus and cyanosed (L) pupil dilated and haemorrhage ↑ from head wound.”
“LOC” refers to “loss of consciousness”

8 The appellant suffered lacerations and bruising in the accident and was also taken to Liverpool Hospital for assessment. The front nearside passenger suffered soft tissue injuries and bruising, described by the police as “seatbelt injury”. Mr Hide also suffered soft tissue injuries and bruising. The rear centre passenger suffered a severe laceration to her face and associated bruising. The police notes recorded her injuries as being “severe lac to right forehead…”.

9 Constable Scott Gane attended the accident, arriving at 6.30am. He apparently prepared a statement dated 18 November 2000, which was not included in the Combined Appeal Book, but was provided to one of the appellant’s experts, Mr Michael Griffiths, who extracted the following information:

“Upon my arrival … I saw a white Ford Laser with extensive front-end damage on the front lawn of the residential premises of 75 Reilly Street, Liverpool. The vehicle was facing a large tree which it appeared to have come into collision with. The front timber fence of the premises also had extensive damage. One male was in the rear of the vehicle … I said ‘are you trapped in the car?’, he said, ‘No, I think I can get out’.”

10 It appears to be common ground that the male to whom Constable Gane spoke was the respondent as Mr Hide got out of the car shortly after the accident. Constable Gane was not called, but neither party commented upon this.

11 The respondent remained in hospital until 4 September 2000. On 17 September 2000 he gave a statement to the police in which he relevantly stated:

“4. I can remember getting a lift home with some girls but I don’t know them at all. I remember getting in the car and sitting behind the driver and I remember putting my seat belt on. Some fat girl was sitting beside me and my uncle was beside her.
5. The next thing I remember is waking up in hospital. I was told I had been in a car accident but I can’t remember who told me that.”

12 The respondent applied for a general assessment of his claim by the Claims Assessment and Resolution Service pursuant to s 94 of the Motor Accidents Compensation Act. His injuries were described in the application as follows:

“The claimant sustained a major extensive frontal skull fracture with part of his brain forced out in a herniating injury through the open wound. He suffered a grand mal seizure while on the way to Liverpool Hospital and required surgery to repair the skull fracture. Part of his surgery necessitated the removal of some of the claimant’s brain tissue. From the time of the accident and particularly whilst in the recovery ward in the brain injury unit at Liverpool Hospital he was exhibiting the typical behaviour consistent with severe frontal lobe injury. He was aggressive, impulsive and unpredictable.”

13 The appellant was interviewed by the police in an ERISP on 15 October 2000. She relevantly stated:

“Q151… now were you wearing your seatbelt at the time of the collision?
A. No, I wasn’t

Q152. No. Do you know if, what’s her name, Sharon was? [Sharon was the front seat passenger]
A. Yes, she was, ۥcause I remember saying to everybody, put your seatbelts on before we go anywhere, and I have put mine on and then I went … to get my cigarettes out of the packet, out of the pocket, so I undone my seatbelt and I haven’t put it back on.

Q153. How about Natalie, do you know if she had her seatbelt on? [Natalie was the rear centre passenger]
A. Well, like I said, I said to them to put it on but I’m not - - -

Q154. You’re not - - -
A. - - - quite sure.

…

Q156. How about Daniel, do you know whether he did?
A. No, I don’t.

…

Q158. How about Anthony?
A. Don’t know.

…”

She estimated that she was travelling at 56kph when the car hit the tree. She said she suffered ‘minor scratches and bruises’ in the accident.

14 On 9 September 2003 the respondent signed a statement which included the following:

“2. I was injured in a motor vehicle accident in August 2000. I have no memory of the accident itself and I cannot remember for a period of what I think is about a week both before and after the accident. By that I mean that I have a gap in my memory of about a week in total.
3. I left school when I was about 16. I cannot remember now whether I got the School Certificate or not. My memory is very poor these days.”

15 The front seat passenger gave a statement in which she said, relevantly:

“ … I felt the car sway from side to side on two occasions. I was sort of thrown between the two seats. It felt like it was a slow swerving, a fish-tailing effect. As I’ve turned around I heard Natalie [the rear mid-seat passenger] scream and at the same time I saw we were off the road and heading towards a tree. I then yelled ‘brake’ at Loredana … it was too late. Loredana was just sitting there holding onto the steering wheel and looking out to the front, she didn’t even try to brake. It was [as] if she froze.

Within a second of that we hit the tree and there was a loud bang, a huge crash. During the crash the back of my seat was pushed forwards by the people behind me. I unbuckled my seatbelt and got out my door. … Anthony got out his door.

… I looked up at the car and saw that Loredana was crushed up against the steering wheel and that Daniel and Natalie were unconscious … .”

16 In his evidence in chief the respondent gave the following evidence:

“Q. When you got in, what was the position with your seatbelt?
A. It was up the top, right, and then I grabbed it and put it on.

…

Q. Can you remember being at the scene after the accident?
A. No.”

17 In cross-examination counsel tested the respondent’s recollection of the accident, as follows:

“Q. You agree that you don’t have a very good recollection of what happened in the accident?
A. No. No.
Q. You don’t agree with that?
A. No. I remember jumping in the car, I put my seatbelt on, we went – we drove somewhere. I think it was in Casula and she went inside or something – we – drove down Riley Street. She started swerving – being stupid and then that’s when I remember going into the gutter but I don’t remember the tree.”

18 When asked about his 9 September 2003 statement and, in particular that part stating he had “no memory of the accident itself”, the respondent said he would not have read the statement “because me Nan wrote it.”

19 The cross-examiner then put to the respondent:

“Q. Mr Griffiths, you can’t clearly remember putting on your seatbelt, can you?
A. Yes I can. I always put on a seatbelt.

Q. Are you sure you haven’t - -
A. That’s the first thing I do when I get in a car, even when Nan used to drive, ever since we’ve been little kids.

Q. Even when you’d been drinking all night?
A. Yeah.

Q. No one would expect you to remember, but do you have any recollection of striking your head on anything in the accident?
A. No.

Q. Do you have any recollection of seeing anything on the vehicle in front of you, perhaps the back of the seat or the head rest where your head had come into contact?
A. No, all I remember seeing is like she was swerving, and then we’re coming up to the gutter, and then I remember hospital.”

20 The respondent could not recall any conversation with a police officer at the scene of the accident. He was not asked about any conversation with an ambulance officer.

21 Significantly the respondent was not cross-examined to suggest the information recorded by the ambulance officers did not emanate from him or could not be relied upon for any other reason. Nor was his statement to the police in September 2000 challenged.

22 In further cross-examination it was put to the respondent that the size of the mid seat passenger might have made it difficult for him to put his seatbelt on. He rejected that proposition, saying that if he had not been able to get on his seatbelt he would have asked the mid seat passenger to move over.

23 Mr Hide gave evidence that he put his seatbelt on when he got into the car. He could not say whether or not the respondent did so.

24 Senior Constable Bain of the Metropolitan Crash Investigation Unit investigated the accident. He attended the scene at about 6.30am on 26 August and was informed that the collision had occurred about 10 minutes earlier. He observed that the “front section of [the] vehicle had suffered extensive damage which was concentrated to the headlight area on the driver’s side.” The front driver’s side tyre had deflated in the collision. In the section of his statement dated 3 September 2000 (ex 5) dealing with “Inspections”, he detailed his examination of the accident scene and the car. His only reference to the seatbelt was:

“21. The seatbelt for the rear passenger on the driver’s side was inspected as was [sic], were the anchorage points. I saw that the seatbelt was in a serviceable condition and was consistent with the age of the vehicle . I was unable to locate any stretching of the seatbelt fibres or stitching near the anchor points that would normally indicate the seatbelt had been worn at the time of impact. ” (emphasis added)

25 Elsewhere he opined (par [28]) that “upon impact [with a tree on the front driver’s side] the Mazda rotated in a clockwise direction whereupon the rear portion collided with the fence and the vehicle came to rest.” He concluded (par [29]) that when the car left the road “[it] does not appear to have been undertaking an emergency braking application …”.

26 Senior Constable Bain described the impact as “severe”. In chief he gave the following evidence:

“… I had a look at the rear seatbelt particularly in amongst the fibre, looking for any stretching or – or disruption to the – the fibre of the seatbelt. I – I can’t recall seeing any such indicators in the seat belt. I would also have had a look at – I don’t specifically recall doing it but part of that process is inspecting the plastic shroud of the latch mechanism of the seatbelt. The plastic shroud also provides indication as to whether the seatbelt had been worn by a number of striations or fine scratches in the plastic surround … .

There was no striations or – or friction from the seatbelt on that plastic shroud… I concluded that the seatbelt hadn’t been worn.”

27 Under cross-examination he said:

“Q. It is true, isn’t it, that on some occasions an occupant can be wearing a seatbelt and there is not found stretching of seatbelt fibres or stitching.
A. …no, I don’t agree with that.

Q. You … used the word ‘normally’.
A. That’s correct. … I’d never use ‘inevitably’.

Q. What did you mean by ‘normal’?
A. Normal, just normal context …

Q. You meant by it, did you, in every accident involving this degree of severity?
A: No. It depends on—that would depend on the occupant’s position relative to the line of force. If the occupant moves away from the line of force, i.e. to the passenger’s side, then I wouldn’t expect to find such evidence.


Q. You don’t know how the occupant moved in this accident immediately before the collision, do you?
A: Well, if the passenger is seated in the rear seat behind the driver and it’s going frontal into the tree, yes, it must be moving forward. The passenger must move forward.

Her Honour (Q): Just wait. I think what you’re talking about is the direction of movement of the passenger at the time of the impact. Is that what you mean?
A: That’s correct….

HH: Not where he happened to be leaning just before the—
A: That’s correct … yes.

Lidden: Q. Because you knew nothing about what he might have been doing in the moment before impact … except he was supposed to have been in the passenger seat in the rear.
A. That’s correct.

……….

Q. This training that you’ve had as to seatbelts has someone just told you, have they, that if there is a front on impact look for some stretching in the seatbelt fibres?
A. It appears in many checks. It’s also been evident in examples given.

Q. But that’s the extent of it, you’re just told ‘look for stretching in a front on impact.’
A. Well it’s part of the curriculum in the courses.

Q. And look to see in a front on impact whether the plastic around the buckle has been scratched.
A. That forms a part of it.

Q. And what else to do with seatbelts, look to see perhaps if the mounting where the seatbelt is bolted to the frame of the vehicle is secure?
A. If the severity is great I think it may be an issue but it may not have been there. At the time it didn’t appear to be an issue, it wasn’t that severe.

Q. Well, a medium severe impact then, is it?
A. Well, no, it’s severe but getting access to the actual mounting bolts is very hard to do. I’m satisfied that the seatbelt hadn’t been worn based on the seatbelts and what I’d seen I had no need to go any further.

Q. But you say in your statement you did inspect the anchorage points, …
A. The visible ones, not the ones that you can’t see up near the top of the back seat, they’re very hard to see.” (emphasis added)

28 Senior Constable Bain did not conduct any measurements within the car to see what room there was for passengers sitting in the seat between their heads and the roof. He did not have any information as to the height of the respondent.

29 He agreed that the evidence he had given in chief concerning the plastic shroud on the seatbelt did not appear in his statement. He denied, however, that that meant he had not carried out that inspection. He accepted that he had no actual memory of looking at either the seatbelt anchorages or the seatbelt fibres in this collision.

30 Michael Griffiths, a biomedical/mechanical engineer qualified by the appellant, prepared a report dated 1 July 2005. He had access to numerous documents for the purpose of preparing his report, including the ambulance report and Senior Constable Bain’s report. He did not inspect the appellant’s motor vehicle. As a result of his review of the documents and photographs of the scene and the motor vehicle he expressed the following opinion:

“The Police photographs show that the area of impact and engagement with the tree was on the right front of the vehicle, adjacent to the vehicle’s right front headlamp. There is crush damage extending rearwards along much of the length of the right front mudguard. There is induced damage and some loss of occupant space in the driver’s seating position.

The right rear occupant seating position was intact and unintruded.

Whilst the depth of crush and intrusion into the front occupant’s space exposed the driver to a greater risk of injury, the long length of crush meant that the overall forces of the crash were reduced for other occupants not in the crush zone. In other words, the longer stopping distance, because of greater depth of crush makes the crash less severe for occupants not seated in the crush zone.

The driver was in the crush zone and hence in the most vulnerable seating position in this vehicle.

The extent of crush damage which can be observed in the Police photographs indicates a velocity change of not less than 35km/hr and not more than 50km/hr. A pulse of this severity would have been expected to make load markings on the webbing of any seatbelt which was worn in this incident.

The right rear seatbelt was examined by Police and found to have no load marks consistent with being worn in this crash.

In summary: ―


― this crash was a relatively ‘soft’ or moder ate one for occupants not seated in areas which were intruded

― the right rear occupant’s space was intact and unintruded

― examination of the right rear seatbelt showed that it had no load marks consistent with being worn in an incident of this severity . In other words, there was some scientific evidence that the seatbelt could not have been worn in this incident

― DANIEL GRIFFITHS’ depressed fracture of the skull shows that his head was not restrained within his occupant space, but was allowed to move forward until it came into contact with some hard and unyielding object within the vehicle interior.


His higher level of injury, compared to other vehicle occupants, indicates that he did not receive the benefit of any ‘ride down’ while the vehicle was crushing.

By way of explanation the physics formula for Work/Energy is equal to Force by Distance. This means that for a given amount of energy (say a car at 40km/hr), if you increase the stopping distance then, for the same energy, you reduce the force. If less force is applied to an occupant then they are less likely to receive injury. The longer length of crush for this car meant lower forces on its restrained occupants. Unrestrained occupants who kept moving forward do not get the benefit of being decelerated to a stop over the longer crush distance. Hence they experience higher forces when they hit something and are more likely to receive injury.

If DANIEL GRIFFITHS had correctly worn the three point seatbelt, then he would have been restrained in his seating position, and his head would not have been able to flail forward, so as to come into heavy contact with a hard, unyielding part of the vehicle interior.” (emphasis added)

31 In his evidence in chief Mr Griffiths said his opinion that the respondent was not wearing a seatbelt was based both on Senior Constable Bain’s inspection of the seatbelt and the respondent’s injury pattern. He also relied upon the fact that the respondent did not suffer any other significant injuries. In this respect he said:

“… So to get that kind of injury he would have had to basically keep moving forward as the vehicle was decelerating. I deduced … from the lack of injury to other parts of his body that he must have actually had impact with the rear of the seat in front of him and had relatively distributed loading applied to the other parts of his body so that there was no indication of injury there . And then his head must have rotated forward and had impact with some hard object at that higher level which, I guess, could be the head restraint or some part of the top of the seat back there.

Q. What about the pillar at the side?
A. Initially I thought that the pillar was also a candidate but upon seeing the colour photographs this morning, it appears to me that the right rear window is closed and that would have altered his trajectory so I think it would be difficult for him to have had a kind of a point loading to his forehead on the pillar so I think that makes that – makes that highly unlikely.” (emphasis added)

32 Mr Griffiths was cross-examined to suggest that it was difficult to try to work out how the body of occupants of a vehicle in a crash such as that in which the respondent was involved moved upon impact. He agreed it was not a straightforward task and one needed to know something about how bodies moved in crashes, as well as the path of the vehicle.

33 Mr Griffiths accepted that he would have been assisted if Senior Constable Bain had examined the other seatbelts within the vehicle. When asked by the primary judge how that could have helped, he said:

“Well … you have a left front occupant who says he was wearing a seatbelt and has a lack of injuries consistent with that. We have left rear occupant who it appears was not wearing a seatbelt and that [sic, that’s] supported by a statement from the left front occupant that he says someone crashed into the rear of his seat. So we would have had a seatbelt that was – looks like it was worn in a left front seating position, and a seatbelt that looks like it was not worn in the left rear seating position, so you could have done a comparative analysis – but there is a fairly significant proviso on that, and that is that the left front seatbelt was a retractor seatbelt, and the left rear seatbelt was a fixed manual seatbelt and they both behave quite differently …”.

34 Mr Griffiths said he did not think inspecting Mr Hide’s seatbelt would have been “terribly useful” because he thought the information indicated that Mr Hide was not wearing a seatbelt, an inference he appears to have drawn from the fact that the left front occupant was “impacted from behind”.

35 Mr Griffiths was aware that the appellant had not been wearing a seatbelt. He agreed that logically she should also have been seriously injured, but that she was not. He suggested that the explanation for this was that she “was offered some ride down and restraint” provided by the steering wheel which showed “significant deformation”. This could be explained, he suggested, by the fact that many women sit closer to the steering wheel than men which “can mean they’re engaged slightly earlier with the steering wheel.” I interpolate that there was no evidence that the appellant was one of the women of whom Mr Griffiths generalised.

36 Nevertheless Mr Griffiths accepted that, assuming the impact of which he was aware, he would have thought it highly likely that an unrestrained driver such as the appellant would have suffered serious injuries both to her upper and lower body. He would not accept the proposition that the fact the driver was not seriously injured indicated how difficult it was to “apply this kind of science to motor vehicle impacts.”

37 Mr Griffiths agreed that the car was swerving from side to side before the crash and that the heads of the passengers in the rear seat were swinging from side to side. He accepted that the respondent’s head would have been “going from side to side during the swerving process”.

38 In cross-examination Mr Griffiths resiled even from his “guess” that the respondent struck the driver’s head restraint structure. He accepted that the respondent’s injury was not consistent with him having struck that part of the car. He could not, however, identify a specific site of impact, only possible sites where the respondent’s head might have come into contact with part of the vehicle which would have caused localised skull fracture.

39 The only significant injury the respondent apparently suffered was to his head. Mr Griffiths agreed that, absent the head injury, the fact the respondent suffered no lower limb or low back injuries could have been explained by him having worn his seatbelt. The cross-examiner put to him that, for balance, he should have included this in his report. He said:

“Well it’s not a question of balancing. What I’m doing is looking at the head injury and saying ‘Could this head injury have occurred to a restrained occupant in this crash?’ ”.

40 He disagreed in cross-examination with the proposition that the respondent’s injury could have been sustained if he had been restrained, but had hit his head against some part of the car on the right hand side. In re-examination Mr Griffiths, however, accepted there might have been some contact between the respondent and the right hand side of the vehicle. He thought it “highly unlikely”, however, that there would be such contact between the portion of his head which suffered injury and the side of the vehicle. He said that there was not a sufficient sideways component in the motion of the car in the pre-impact phase to cause the kind of injury the respondent suffered. He said that the physical evidence was strong that this was a “very strong frontal impact which had sufficient force to cause” the kind of injury the respondent sustained.

The primary judge’s reasons

41 The primary judge dealt with the seatbelt issue as follows:

“The seatbelt issue

3. Moments after the accident and shortly before his condition deteriorated and he experienced his first epileptic fit, Mr Griffiths told ambulance officers that he had been wearing a seatbelt. Since then, he has consistently maintained that he fastened his seatbelt when he entered the vehicle.

4. There is no doubt that Mr Griffiths was an honest witness. Rather, the driver submitted that Mr Griffiths’ recollection about the seatbelt must be a reconstruction.

5. Senior Constable Bain of the Metropolitan Crash Investigation Unit inspected Mr Griffiths’ seatbelt and found that it was in serviceable condition. He was unable to locate any stretching of the seatbelt fibres or stitching near the anchor points, which, given the severity and line of the impact, he would have expected if the seatbelt had been utilised at the time of the accident.

6. Mr Michael Griffiths, a road safety engineer called by the driver, agreed that, in an impact of the type in question, one would expect some signs of loading on the seatbelt webbing and concluded that ‘there was some scientific evidence that the seatbelt could not have been worn in this incident’. Another relevant factor was the injury pattern. The central forehead injury and the absence of other injuries suggested that Mr Daniel Griffiths was unrestrained, so that his head was able to rotate forward and contact an object, possibly the driver’s head restraint or a metal bar within the top of the driver’s seat. Regrettably, although the impact caused considerable bleeding, the police investigation did not attempt to identify the object hit by the head.

7. Mr Griffiths suffers from amnesia in relation to the impact and a period of seven to nine days thereafter, and has little recall of what occurred prior to the accident while he was in the company of his uncle at the Corner Pub. He frankly conceded that his ‘recollection’ of the vehicle hitting the tree may be a reconstruction based on what others had told him, but he made no such concession in relation to his recollection of fastening his seatbelt. Mr Hide did not pretend to know whether Mr Griffiths was wearing a seatbelt. No one has been identified as someone who may have implanted a false suggestion during the brief period before the ambulance arrived at the scene.

8. Undoubtedly, Mr Griffiths believes that he was wearing a seatbelt at the time of the accident. The length and circumstances of the period between the accident and when Mr Griffiths told ambulance officers that he was wearing a seatbelt was such that reconstruction is most unlikely. The driver did not give evidence, although it was her statutory and commonsense responsibility to ascertain whether Mr Griffiths was wearing a seatbelt. I infer that the driver could not contradict Mr Griffiths’ evidence. While the scientific evidence supports the hypothesis that Mr Griffiths was not wearing a seatbelt, disregarding Mr Griffiths’ evidence, the only certainty is that he struck his forehead on something directly in front of it. No one knows the direction of Mr Griffiths’ gaze immediately prior to the impact. No one can identify the object which he hit, its proximity to his torso, or the body motion which brought Mr Griffiths’ head into contact with that object. Consequently, I am not satisfied that Mr Griffiths failed to wear a seatbelt.

9. Had I made a finding of contributory negligence, I would have attributed to Mr Griffiths 25 percent of the responsibility for the damage sustained. Not only did the driver deliberately drive in an erratic manner, it was her duty to ensure that her passengers were seat belted.”

Grounds of appeal

42 The appellant relies upon the following grounds of appeal:

“1. The trial judge erred in not finding that the respondent was not wearing a seatbelt at the time of the accident. In particular her Honour erred in that she:
(a) failed properly to consider the evidence in relation to the respondent’s failure to wear a seatbelt and make appropriate findings upon that evidence;
(b) failed to give proper weight to the evidence of Mr Bryan Bain that the respondent had not been wearing a seatbelt at the time of the collision;
(c) failed to give proper weight to the evidence of Mr Michael Griffiths that the respondent had not been wearing a seatbelt at the time of the collision.
2. The trial judge erred in her findings as to the credit of the respondent and as to the effect of the respondent’s evidence;
3. The trial judge erred in drawing an impermissible inference from the appellant’s failure to give evidence;
4. The trial judge erred in failing to find contributory negligence on the part of the respondent.”

Submissions

43 Mr B R Toomey of Queens Counsel, who appeared for the appellant on appeal with Mr P Khandhar but not at trial, submitted that the incontrovertible evidence established that the respondent was not wearing his seatbelt at the time of the accident. He argued that while the primary judge appeared to have accepted both Senior Constable Bain’s evidence in relation to the state of the seatbelt and Mr Michael Griffiths’ acknowledgement of the state of the seatbelt as evidence supporting the proposition that the seatbelt was not worn, she had impermissibly discounted that evidence in paragraph 8 of her judgment.

44 Mr Toomey argued that the primary judge failed to appreciate that the direction of the respondent’s gaze prior to the impact was irrelevant when it was clear that the forces exerted on him were overwhelmingly in a forward direction and that it was very unlikely that the respondent hit his head on a part of the vehicle on his right hand side. He submitted that if the respondent had in fact had his head turned to the side the severe impact would have been to the left side of the head, but would still have resulted from a frontal impact.

45 Next Mr Toomey submitted that the primary judge did not appear to have considered Mr Griffiths’ evidence concerning the severity of injuries likely to be experienced by a passenger wearing a seatbelt, as opposed to one not wearing a seatbelt.

46 Mr Toomey submitted that the respondent’s statement that he was wearing a seatbelt could not be said to be more reliable than the scientific evidence that:

(a) the seatbelt exhibited no physical evidence of having been worn at the time of impact;

(b) the respondent’s injuries were of a severity consistent with him not wearing a seatbelt;
and
(c) the respondent would, regardless of the direction of his gaze, have moved forward with the forward force of the impact and the centrally located injuries could only have been caused if he was allowed to travel forward, unrestrained by a seatbelt.

47 Mr Toomey also contended that the respondent’s statement to the ambulance officer that he had been wearing a seatbelt was unreliable having regard to the nature of his injuries. He argued that it was not clear whether the respondent, having suffered a serious head injury only 10 or so minutes prior to the arrival of the ambulance officer, would have been in a cognitive state which would have enabled him to understand and accurately respond to questions. He submitted that it was not clear whether the respondent had independently stated to the ambulance officer that he was wearing a seatbelt, or had been prompted by questions from the ambulance officer or others at the scene. He also suggested the respondent may have deliberately lied to the ambulance officer, because of the effect of failure to wear his seatbelt in civil and criminal proceedings. He complained that the primary judge’s conclusion that having regard to the shortness of time between the accident and when the respondent told ambulance officers he was wearing a seatbelt, reconstruction was “most unlikely”, failed to take these matters into account.

48 Mr Toomey criticised the primary judge’s statement (judgment para [3]) that the respondent had consistently maintained he fastened his seatbelt when he entered the vehicle. Mr Toomey pointed to the respondent’s 9 September 2003 statement that he had “no memory of the accident itself”. He also relied on that statement to argue that the respondent’s evidence that he was wearing a seatbelt was a reconstruction. He pointed to the respondent’s frank evidence when asked whether he remembered seeing the tree before the accident that:

“I’m not sure whether I remember it or it’s because I’ve been told stuff about the accident.”

49 Mr Toomey also relied upon other inaccuracies in the respondent’s evidence about, for example, the number of passengers in the car and the fact that he was unable to recall being at the scene after the accident. He also drew attention to Mr Hide’s evidence that he had spoken to the respondent about what happened on the night and, “he can’t remember anything”.

50 Mr A J Lidden of Senior Counsel, who appeared at trial, and on appeal with Ms J Baxter for the respondent, submitted that the appellant’s reconstruction theory was extremely unlikely in the light of the respondent’s statement to the ambulance officers that he was wearing a seatbelt. He argued that the primary judge was correct in concluding that it would be “most unlikely” that any such reconstruction had occurred. He contended that having regard to the severity of the respondent’s injuries, the last thing on his mind would have been whether or not he was wearing a seatbelt and any opportunity or inclination to talk to the other passengers in the vehicle about such an issue would have been virtually nil. He contended it was telling that the ambulance officers were not called. As to the appellant’s reliance on Mr Hide’s evidence about the respondent’s recollection, he pointed out that Mr Hide had also said he had not discussed the accident with him.

51 Mr Lidden argued that Senior Constable Bain was not an expert, that he had no formal qualifications although he had some experience working for a few years in the Police Crash Investigation Unit. He also submitted that Senior Constable Bain’s evidence as to the issue of the seatbelt was vague, contending that his evidence had deteriorated from a vague statement in chief that he “would have” had a look at the plastic shroud of the latch mechanism of the seatbelt and at the fibres of the rear seatbelt to having no memory at all as to looking at anchorages or even at fibres. He also pointed out that Senior Constable Bain had only ever looked at a few seatbelts at the time of the respondent’s accident.

52 Mr Lidden submitted that Mr Michael Griffiths was also a poor witness. He had never seen the vehicle and had no idea whether its internal configuration was standard. He suggested that Mr Griffiths’ statement that it would not have been “terribly useful” to compare Mr Hide’s seatbelt with the respondent’s to test the issue of fibre stretching contradicted Senior Constable Bain’s evidence and, indeed, “demolishe[d] his expert testimony”.

53 Mr Lidden also argued that Mr Griffiths’ concession in cross-examination that according to his scientific expertise, the appellant should have been seriously injured, but was not, demonstrated the unreliability of “scientific” predictions of what happened in accidents.

54 As to Mr Griffiths’ theory that the respondent had hit the back of the driver’s seat, Mr Lidden submitted that there was no evidence that there was any impact damage to that structure. He pointed to Mr Griffiths’ evidence that there would have been sideways force promoting contact between the respondent’s head and the side of the passenger compartment and that it was difficult to predict when a man’s skull would fracture and when it would not.

55 Mr Lidden submitted that the thrust of Mr Griffiths’ theory was always vulnerable to cogent lay evidence. He contended that the trial judge was entitled to accept the respondent’s evidence and had properly rejected the reconstruction theory and the scientific analysis.

Consideration

56 The appellant accepted that she bore the burden of proving that the respondent was not wearing a seatbelt for the purposes of s 138 of the Motor Accidents Compensation Act. She sought to discharge that burden essentially by relying on the expert evidence and the position of the respondent’s injury and attacking the respondent’s contemporaneous statements as unreliable and his evidence at trial as a reconstruction.

57 I turn to the appellant’s expert evidence. At times Mr Toomey’s submissions appeared to proceed on the basis that that evidence constituted incontrovertible proof in the Fox v Percy [2003] HCA 22; (2003) 214 CLR 188 sense that the respondent was not wearing a seatbelt. However the expert evidence depended upon the primary facts. It was incumbent upon the primary judge, as on this Court conducting its re-hearing function, to assess the opinions upon which the appellant relied independently. Even though the respondent called no expert evidence, neither the primary judge, or this Court, was obliged to accept the appellant’s expert evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at [68], [89]) per Heydon JA.

58 In Makita, Heydon JA considered a number of cases dealing with the importance of an expert exposing the facts upon which his or her opinion was based in order that it be admissible. The respondent did not object to either experts’ evidence, so Heydon JA’s observations are not strictly speaking germane, however, the cases to which he referred have broader application insofar as they emphasise the importance of the factual foundation of an expert’s opinion. It is pertinent, in my view, to refer to Anderson J’s statement in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 (at 389–390) (Makita (at [80])) that:

“Expert opinion is to be judged like any other evidence. It must be comprehensible and reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them. … It is for the Court to judge the reliability of evidence given in support of the case. If an opinion relies on facts that must be proved or assumptions that must be verified, it is to the Court that they must be proved and verified, not the expert witness.”

59 Turning to Senior Constable Bain’s evidence, it is notable that although he accepted that the impact was severe and that in such circumstances an investigation of whether the seatbelt bolting to the frame of the vehicle was secure was an issue, he did not inspect the mounting bolts. This was because it was “very hard to do”. He said he was satisfied that the seatbelt had not been worn based on what, on his contemporaneous report, was his inspection of only one part of the seatbelt, the seatbelt fibres. He also asserted at trial that he had inspected the plastic shroud of the latch mechanism of the seatbelt. He did not record that fact in his report of 3 September 2000, a report in which he purported to record his inspection of the vehicle. Further, Senior Constable Bain accepted that he would not expect to find evidence of stretching of seatbelt fibres if the occupant of the seat had moved away from the line of force. Although he asserted that the respondent must have been moving forward because he was sitting in the rear seat of a vehicle which collided “frontal into the tree”, he accepted that he knew nothing about where the respondent was immediately before impact.

60 In my view Senior Constable Bain’s evidence was severely compromised by what appears to have been a superficial inspection of only one aspect of the seatbelt and the formation of his opinion without any regard to the respondent’s position in the car immediately prior to impact. It did not constitute evidence that the respondent was not wearing his seatbelt.

61 Mr Griffiths’ evidence was, in my opinion, compromised by its failure to have regard to all the relevant facts, including the inconsistent injury patterns. Once Senior Constable Bain’s opinion about his inspection of the seatbelt was compromised, one of the important bases of Mr Griffiths’ opinion was removed.

62 Further the value of Mr Griffiths’ opinion was, in my view, compromised by anomalous aspects of the accident to which he failed to have regard in his report and whose significance, it was apparent, he was reluctant to concede in cross-examination.

63 Mr Griffiths accepted that the appellant was in the most vulnerable seating position in the car, and was not wearing a seatbelt, yet she was barely injured. She did not suffer the serious injuries a person in her position in the car ought to have suffered. The front nearside passenger was wearing a seatbelt and suffered soft tissue injuries consistent with so doing. Mr Hide said he was wearing a seatbelt. He was not cross-examined to suggest to the contrary. According to the front seat passenger the people behind her pushed the back of her seat forward. Those people must have included Mr Hide. Accordingly, the evidence established that notwithstanding he was wearing a seatbelt, he hit the seat in front of him.

64 There is no reliable evidence as to whether or not Natalie, the centre rear passenger was wearing a seatbelt. She suffered an injury to her right forehead, consistent either with having struck the rear of the driver’s seat or, possibly, the respondent. I note nobody directly raised the latter proposition, but it appears to me to be an available inference, particularly given the front seat passenger’s statement that both Natalie and the respondent were unconscious immediately after impact.

65 The respondent’s injuries were consistent with him having struck an object with great force. Mr Griffiths was not able to identify an object within the motor vehicle which might have produced the penetrating mid-forehead injury the respondent suffered. Further, the fact that the respondent suffered no lower limb or low back injuries was consistent with him having worn his seatbelt. Thus the respondent’s injuries were, as I understand Mr Griffiths’ evidence, consistent both with him wearing, or not wearing, a seatbelt. Mr Griffiths also accepted that the movement of the respondent immediately prior to impact would have been relevant to understanding how he came to be injured in the centre of his forehead. Like Senior Constable Bain, he had not analysed the pre-impact movement.

66 The primary judge’s reference to the fact that no one knew the direction of the respondent’s gaze prior to impact, or the “body motion” which led to his forehead striking an object leading to fracture, were clearly references to both experts’ recognition of these matters as significant to their opinions. Her Honour was entitled to conclude that their opinions were affected by this uncertainty. She was also entitled to conclude that Mr Griffiths’ opinion that the respondent was not wearing a seatbelt was significantly undermined by his inability to identify the object the respondent hit or the sequence of movements which brought his head into contact with that object. Although she did not refer to it, she was also entitled to take into account the fact that the respondent did not suffer other injuries which might have been expected had he not been wearing a seatbelt. The fact that Mr Hide hit the front passenger seat even though he was wearing a seatbelt was also significant.

67 This Court is obliged to take all the evidence into account in exercising its re-hearing function. It is also obliged to take into account that Mr Griffiths’ report failed to come to grips with the inconsistent injury patterns, not only in relation to the respondent, but also in relation to the appellant.

68 In my view, Mr Griffiths’ failure to include in his report the anomalies to which I have referred, and his response in cross-examination that he was looking at whether “this head injury [could] have occurred to a restrained occupant in this crash”, suggest that he failed to take an objective approach to his task.

69 I turn to the attack on the respondent’s statements at the scene, and shortly after, that he was wearing a seatbelt. Mr Toomey suggests the respondent’s injuries were so severe his cognitive state must have been so affected as to undermine those statements. This was a bald assertion. There was no medical evidence advanced to support it. It appears to be inconsistent, in any event, with contemporary events.

70 The police and the ambulance officers appear to have arrived at approximately the same time. Both recorded a conversation with the respondent in which he was apparently coherent. As a matter of common experience one would expect both the police officer and the ambulance officers to have noted if the respondent had been apparently incoherent, or if his cognitive functioning had been affected. It was during the trip to Liverpool District Hospital that the his condition deteriorated, leading to a grand mal seizure. According to the s 94 claim form it was from the time he was in the recovery ward in the brain injury unit at Liverpool Hospital that he commenced to exhibit “the typical behaviour consistent with severe frontal lobe injury … aggressive, impulsive and unpredictable.”

71 The respondent told the ambulance officers he was wearing a “safety [seat] belt”. There is no evidence to support Mr Toomey’s submissions that the severity of the respondent’s injuries militated against him being able to respond, as I have said, coherently to this question from the ambulance officers. As to Mr Toomey’s submission that it was not clear from the ambulance officer’s notes whether the respondent’s statement was an independent response or one prompted by questions from the ambulance officers or others at the scene, that was a matter for the appellant to prove. The respondent was never cross-examined to suggest that the ambulance notes were not accurate, or that he lied either to the ambulance officers, or, later in his September 2000 statement, to the police. There was no reason for the primary judge not to accept the ambulance notes at face value. Mr Toomey’s submission that the respondent may have lied to the ambulance officers was a matter of speculation.

72 In my view the appellant’s attack on the respondent’s contemporaneous statements fails.

73 Although it does not take the matter a great deal further, the primary judge was correct when she stated that the respondent had consistently maintained he fastened his seatbelt when he entered the vehicle. The 9 September 2003 statement did not deal with the issue of whether or not the respondent was wearing a seatbelt even if one accepts, contrary to the respondent’s evidence, that he completed that document. I accept that he signed it and should, therefore, bear responsibility for its statement. Nevertheless he said that it had been completed by his grandmother and his statement to that effect was not challenged.

74 The primary judge was entitled to reject the reconstruction theory and accept the respondent as a witness of truth, and, accordingly accept his evidence at trial that he was wearing a seatbelt. But even if one accepted that three years after the event, and, by the time of trial suffering from the effects of a serious brain injury, the respondent had reconstructed the events, that does not detract from the proposition that within minutes of its occurrence he stated he was wearing a seatbelt, a statement he repeated within three or so weeks to the police. Later reconstruction does not undermine a contemporaneous credible statement.

75 In my view the appellant’s attack on the primary judge’s acceptance of the respondent as a witness of truth fails.

76 The appellant failed to establish that the respondent was not wearing a seatbelt.

77 In the light of that conclusion it is unnecessary to deal with the appellant’s third ground of appeal which concerns the primary judge’s inference that the appellant’s failure to give evidence meant she “could not contradict Mr Griffiths’ evidence”. The appellant is correct that this was a misstatement of the consequences of the failure to call a witness a party would be expected to call: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. That failure, if established, leads to the inference that the witness’ evidence would not have assisted that party: Jones v Dunkel (at 308, 312 and 320–321).

78 The rule only applies, however, where a party is required to explain or contradict something, a question which turns on the issues in the case: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 (at [51]). In this case the evidence in the form of the appellant’s ERISP revealed that she did not know whether the respondent was wearing a seatbelt. It was unnecessary, accordingly, for her Honour to draw an inference that the appellant could not contradict Mr Griffiths’ evidence. There was clear evidence that she could not.

79 The appeal should be dismissed with costs.

80 BASTEN JA: This appeal involved a single issue relating to a motor accident which occurred in the early hours of 26 August 2000. The plaintiff, Daniel Griffiths, had been a passenger in a car driven by the defendant, Isabel Petracho. He was a passenger in the rear seat, behind the driver. Whilst driving down a suburban street, the driver swerved from side to side and then lost control of the vehicle. The plaintiff was severely injured in the resulting accident. The issue of present relevance is whether he was wearing a seat belt at the time of the accident. The trial judge, Murrell DCJ, was not satisfied that he was not wearing a seatbelt. However she also concluded that, had he not been wearing a seatbelt, he would have been found responsible, to the extent of 25%, for his own injuries. Thus, the sole issue on the appeal was whether her Honour erred in relation to the factual finding concerning the seatbelt.

81 The critical complaint of substance in relation to her Honour’s finding with respect to contributory negligence is found in the following passage at [8]:

“While the scientific evidence supports the hypothesis that Mr Griffiths was not wearing a seatbelt, disregarding Mr Griffiths’ evidence, the only certainty is that he struck his forehead on something directly in front of it. No one knows the direction of Mr Griffiths’ gaze immediately prior to the impact. No one can identify the object which he hit, its proximity to his torso, or the body motion which brought Mr Griffiths’ head into contact with that object. Consequently, I am not satisfied that Mr Griffiths failed to wear a seatbelt.”

82 It is common ground that the defendant bore the onus of proving that the plaintiff was not wearing a seatbelt. In essaying this task it was faced with the need to overcome such weight as might be given to a statement contained in the ambulance report that:

“Patient states he was wearing safety belt.”

83 The accident occurred at 6.20am: the ambulance arrived at 6.29am and departed at 6.54am. It would seem that the statement was made within some 10-15 minutes of the accident occurring. The statement was of interest to the ambulance officers, because it could affect the nature and extent of injuries and indicate whether there had been a loss of consciousness and possibly short-term amnesia. The ambulance officer also circled the words “seatbelt worn” in an item on the form under the heading “Road crash” which read as follows:

“ Seatbelt Helmet:
Worn Not Worn Unknown”

84 The evidence relied upon by the defendant was in substance twofold. First, there was reliance placed on the nature of the injury suffered to the head. In this respect the defendant called a Biomedical and Mechanical Engineer, Mr Michael Griffiths, who stated of the plaintiff:

“His higher level of injury, compared to other vehicle occupants, indicates that he did not receive the benefit of any ‘ride down’ while the vehicle was crushing.
By way of explanation the physics formula for Work/Energy is equal to Force by Distance. This means that for a given amount of energy (say a car at 40km/hr), if you increase the stopping distance then, for the same energy, you reduce the force. If less force is applied to an occupant then they are less likely to receive injury. The longer length of crush for this car meant lower forces on its restrained occupants. Unrestrained occupants who kept moving forward do not get the benefit of being decelerated to a stop over the longer crush distance. Hence they experience higher forces when they hit something and are more likely to receive injury.
If DANIEL GRIFFITHS has correctly worn the three point seatbelt, then he would have been restrained in his seating position, and his head would not have been able to flail forward, so as to come into heavy contract with a hard, unyielding part of the vehicle interior.”

85 A statement of opinion, with an explanation at this level of generality, involves little more than commonsense. Indeed, a lay person might wonder whether the real physics was not involved in the calculation of “force”, which in this case would depend upon mass and rate of deceleration. In any event, there are a number of steps between the explanation and the conclusion which are not identified, let alone resolved. For example, and as the trial judge clarified in the course of evidence (Tcpt, 21 February 2006, p 150) a critical element in this calculation was the position in which the plaintiff was sitting or “leaning” just before the moment of impact. That was unknown. Further, as her Honour stated in the passage set out above, there was no evidence (other than speculation) identifying the object with which the plaintiff’s head collided. Accepting that her Honour’s reference to the direction in which the plaintiff was facing (his “gaze”) immediately prior to the impact was likely to be of limited relevance, her Honour may have had in mind the point she made in evidence, namely the position of his head immediately prior to the crash.

86 The plaintiff also points out that Mr Michael Griffiths expressed the view that the driver was at far greater risk, in part because she was in what he described as “the crush zone” and was hence in “the most vulnerable seating position in this vehicle”. She was, on her own admission, not wearing a seatbelt. He was asked in cross-examination why she escaped with relatively minor lacerations and bruising. He opined that the steering wheel had provided “some good restraint”, although commonsense suggests that it might have also provided a serious risk of injury in itself. It was put to him (Tcpt, 23 February 2006, p 226):

“Q. If you’d been asked to assume the impact that you know was involved here with an unrestrained driver, you’d have predicted serious injuries being occasioned to both her upper and lower body, wouldn’t you?
A. I would’ve thought that that was a highly likely outcome.”

87 He agreed that it did not happen and was asked:

“Q. I want to suggest to you that’s just an example of how difficult it is to apply this sort of science to motor vehicle impacts.
A. I don’t think so. I think that there’s a perfectly reasonable explanation as to how on this occasion she came out of it with relatively low level of injury.”

That explanation was not provided.

88 It is apparent that the trial judge dismissed this evidence fairly brusquely and without elaboration. The comment on the direction of the plaintiff’s gaze may have been poorly expressed. However, having read the whole of Mr Michael Griffiths’ report and read his evidence, I think her Honour was entitled to that position. She acknowledged that the “scientific evidence” supported the hypothesis that the plaintiff was not wearing a seatbelt.

89 No objection was apparently taken to the admissibility of Mr Michael Griffiths’ report. Had it been, there would have been a serious question as to whether it satisfied the requirements of s 79 of the Evidence Act 1995 (NSW). It is even more doubtful if it satisfied the arguably more rigorous approach adopted by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]. However, given that the evidence was in, it was a matter for her Honour as to what weight to give it. She clearly gave it some weight, though apparently limited weight. That was an assessment with which I would concur.

90 The second matter relied upon by the defendant as demonstrating failure to wear a seatbelt was the following passage in the evidence of the Mr Bain, a then Senior Constable of Police in the Metropolitan Crash Investigation Unit who inspected the car shortly after the accident. His statement included the following, at paragraph 21:

“The seatbelt for the rear passenger on the drivers side was inspected as was the anchorage points. I saw that the seatbelt was in a serviceable condition and was consistent with the age of the vehicle. I was unable to locate any stretching of the seatbelt fibres or stitching near the anchor points that would normally indicate the seatbelt had been worn at the time of impact.”

91 Mr Bain’s reliability was somewhat diminished by a concession that he had not inspected all of the anchorage points: Tcpt, 21 February 2006, p 152. He was also cross-examined on his use of the word “normally”. The following exchange took place at pp 149-150:

“Q. It’s true, isn’t it, that on some occasions an occupant can be wearing a seatbelt and there is not found stretching of seatbelt fibres or stitching?
A. Yeah, no conclusion of that severity in an occupant position in that line of force, no, I don’t agree with that.
Q. You were the one who used the word ‘normally’.
A. That’s correct.
Q. Weren’t you? You didn’t use ‘inevitably’, did you?
A. No, I don’t – I never – I’d never use ‘inevitably’.”
Q. What did you mean by ‘normal’?
A. Normal, just normal context. It’s just an expression, yeah.”

92 It is clear that Mr Bain was not discounting the possibility that stretching would not be visible to the naked eye, despite use of the belt in an accident. Further, his statement expressed the view that the seatbelt was apparently an original fitting, which was, by the date of the accident, some 23 years old. Whether that would affect the likelihood of stretch marks being noted to a visual inspection was not explored, nor was Mr Bain able to assist in his oral evidence, with the details of the inspection that he undertook, other than the knowledge that he did not inspect all of the anchorage points of the belt.

93 No doubt this provided some evidence on which the trial judge could rely in considering whether, on the probabilities, the plaintiff had been wearing a seatbelt. Mr Michael Griffiths also relied upon the examination undertaken by Mr Bain stating in his report:

“A pulse of this severity would have been expected to make load marks on the webbing of any seatbelt which was worn in this incident.
The right rear seatbelt was examined by Police and found to have no load marks consistent with being worn in this crash.”

94 As counsel for the plaintiff noted, this conclusion invited attention to the possibility of stretch marks having been found on other seatbelts. Mr Michael Griffiths was asked in cross-examination whether it would not have been useful to see what marking there was on the seatbelt worn by Mr Anthony Hide, who was in the rear seat on the other side and had given evidence that he had put his seatbelt on. Mr Griffiths said that it would not have been “terribly useful” because he had information to indicate that Mr Hide did not have his seatbelt on. It appears that he was relying upon the statement of the front seat passenger who felt something hit the back of her seat at the time of impact. He stated that that evidence “overall indicates to me that that seatbelt wasn’t worn” (Tcpt, 23 February 2006, p 224). That evidence provided some difficulty to the defendant, if accepted, because it raised a real question as to why not only the driver, but also Mr Hide had avoided serious injury, despite being unrestrained. On the other hand, if Mr Hide was restrained, it raises the difficulty that an obvious point of comparison had been lost and that no one knew what was the effect of this particular accident on seatbelts in the car which had been used. The same might be said of Ms German, who was sitting in the front seat, and who made a statement that she had her seatbelt on, a fact which appears to have been consistent with her relative lack of injury. No one examined her belt for stretch marks.

95 Against whatever weight might properly be given to the “scientific” evidence, it was necessary to put in the balance the evidence of the statement by the plaintiff to the ambulance officer immediately after the accident that he was wearing a seatbelt. There may be reasons for giving that evidence limited weight, not because it was necessarily fabricated, and it was no part of the defendant’s case that that was so, but because the plaintiff may have been confused at the time.

96 The plaintiff’s evidence at the trial was that he did recall that he was wearing a seatbelt prior to the accident, although it is not clear how much weight her Honour gave to that evidence. However, her Honour said of the ambulance report that there was no evidence of false suggestion and that it was most unlikely to have been a reconstruction. Accordingly, it would appear that she placed more weight on that evidence than on the evidence given by the plaintiff at trial. I would take the same approach.

97 The defendant did not invite this Court to order a retrial, if it found error on the part of the trial judge in her assessment of the evidence. Indeed, counsel expressly disclaimed such an option. On the material before this Court, I would think the evidence is equally balanced as to whether or not the plaintiff was wearing a seatbelt. Because the defendant bore the onus of proof in respect of that matter, it follows that she must fail.

98 In reaching this conclusion I should note that there are undoubtedly respects in which this Court was not in as good a position as the trial judge to evaluate the evidence. Not only did the Court not hear from the plaintiff, Mr Hide, or on the defendant’s side, Mr Bain and Mr Michael Griffiths, but it did not have before it the medical evidence in relation to the plaintiff’s injury. Statements were made from the bar table as to where the point of impact was on the plaintiff’s skull. However, photographs which were apparently tendered at trial in relation to the appearance of the plaintiff, together with medical reports and medical evidence which may have told the Court something about the precise point of impact and the bone structure at that point were not relied upon in this Court. Whilst the Court is appreciative of attempts to limit the reproduction of unnecessary material and the resultant diminution in the burden of reading such material, there may come a point at which it is unproductive for the Appellant not to put on material which could be seen to have a bearing on the way in which the trial judge dealt with the question before her. That is particularly so where the substance of the complaint is that she failed to give proper weight to some particular aspects of the evidence, as revealed by her reasons. If this Court is to reconsider that evidence, it must do so in the context in which it was provided at trial. No doubt medical assessments of the future level of disability of the plaintiff would be entirely irrelevant. However, medical evidence identifying with greater precision the nature of the injury could readily be seen to have a bearing on the assessment which this Court is required to undertake.

99 In all the circumstances, I am not persuaded that the trial judge erred in her assessment and I would dismiss the appeal with costs.

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