Robens v Fernandez

[2007] NSWSC 1013

CITATION:	Robens v Fernandez [2007] NSWSC 1013
HEARING DATE(S):	27-31 August 2007; 3 September 2007
JUDGMENT DATE :	27 September 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	Findings made in respect of, inter alia, defence of contributory negligence. These findings may assist the parties in reaching agreement as to the apportionment of damages. If a consensus is not so reached, the matter may be re-listed for further argument.
CATCHWORDS:	Contributory negligence - alcohol - manner of driving - seatbelts - expert evidence - sale or supply of liquor - hearsay rule - relief from failure to give notice
LEGISLATION CITED:	Evidence Act 1995 (NSW) Liquor Act 1982 (NSW) Motor Accidents Compensation Act 1999 (NSW) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW)
CASES CITED:	Joslyn v Berryman (2003) 214 CLR 552
PARTIES:	Sheree Robens by her next friend Jennie Robens (Pl) Jose Humberto Fernandez (Def)
FILE NUMBER(S):	SC 20010/05
COUNSEL:	Mr G. B. Hall QC / Mr M. Daley (Pl) Mr R. R . Bartlett SC / Mr R. H. Weinstein (Def)
SOLICITORS:	Brydens Law Office (Pl) Dibbs Abbott Stillman (Def)

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

27 SEPTEMBER 2007

20010/05 Sheree Robens by her next friend Jennie Robens v Jose Humberto Fernandez

JUDGMENT

1 HIS HONOUR: The plaintiff was born on 27 February 1985 (she is now 22 years of age). Her parents separated and they were divorced in January 1991. She attended school until the end of Year 10 (Macquarie Fields High School).

2 In 2000, she met William Osorio (Osorio) and they formed a relationship. In 2001, she commenced an apprenticeship in hairdressing at Liverpool TAFE. She was employed as an apprentice hairdresser at “Extreme Hair and Beauty” at Macquarie Fields. On 31 August 2001, a child (Jaiden) was born of the relationship with Osorio. Prior to that birth, she left her apprenticeship and her employment. She moved to Canberra to live.

3 At about 2.25am on 11 November 2001, the plaintiff was involved in a motor vehicle accident and suffered serious injury (she was then 16 years of age). At the time of the accident, the vehicle was travelling south along Woodville Road towards Villawood (approaching the intersection with Llewellyn Avenue). The speed limit was 70 kilometres per hour. Immediately prior to the accident, the plaintiff and Sascha Dutton (Dutton) were back-seat passengers (the plaintiff was seated on the passenger’s side). The defendant was the driver (he was then 23 years of age) and Osorio was a passenger in the front seat. Music was being played on the “CD player”. The defendant said that it was “pretty loud”. The vehicle was a gold Commodore, owned by the defendant. He described it as being “almost brand new” and “in excellent condition”. As a result of the accident it was treated as a “write-off”. It was fitted with lap sash seatbelts, which were in good working order.

4 The defendant and Osorio were cousins and friends. According to Osorio, the former had known the plaintiff for about a year prior to the accident (the defendant has said that it was two years). The plaintiff and Dutton were friends. Prior to the accident, the occupants of the vehicle had been at premises where Osorio lived in Macquarie Fields (Osorio’s premises) and alcohol had been consumed. Late on 10 November 2001 (a Saturday), the foursome had driven into the City and then to Bondi Beach. At the time of the accident they were on their way home.

5 The defendant and Osorio were able to alight from the vehicle (they suffered minor injuries only) and an altercation ensued between them. Dutton had been thrown from the vehicle. The plaintiff was partially trapped inside it and unconscious. After she was removed from the vehicle by the defendant and Osorio (prior to the arrival of the police or the ambulance) the defendant absconded from the accident scene (he went to his girlfriend’s place and later to hospital).

6 Prior to the accident, the defendant had been travelling at a fast speed. The vehicle came to and proceeded to cross a bridge. There were three traffic lanes (one being a right-hand turn lane). The defendant has given two versions of the accident. One version was that he was travelling in “the left-hand side lane”. He saw a car in front of him in that lane. He “hit the brakes” and “turned right to overtake that car”. He said “that it felt like to me that the car slid out from the back end. This is the last thing I remember. I next remember waking up in a park”. The vehicle struck a number of objects (including a traffic control light pole, which it took across an intersection). Finally, it struck a gutter on the far side of the intersection, mounted the footpath, rolled over a fence and landed on its roof in the garden in front of a block of home units (in so doing there may have been contact with the building itself).

7 In the version that I have just mentioned (which is the earliest of the two and is to be found in his statement) the defendant also said that he did not remember what speed he was doing prior to the accident. He added that later his cousin had told him that it felt like 90 or 100 kilometres per hour. He further said that he did not remember the collision at all. What was said in the later record of interview sought to raise the possibility of fault in the steering wheel. A subsequent examination of the vehicle failed to find any mechanical defect or component failure in the vehicle.

8 The defendant pleaded guilty to, and was convicted of, a number of offences (including two offences of dangerous driving causing grievous bodily harm). He was sentenced to a lengthy period of imprisonment and disqualified from driving for a period of three years.

9 The plaintiff has no recollection of the events of, or surrounding, the accident. Her last recollection relates to events occurring well before the accident and her first recollection thereafter relates to events in 2002.

10 It is common ground that neither the plaintiff nor Dutton has any relevant recollection.

11 The plaintiff has been described as suffering catastrophic injuries. She sustained a dramatic brain injury, which has led to gross cognitive impairment. She is not a paraplegic (she can move her legs, but not walk). She is effectively wheelchair bound.

12 The defendant admitted breach of duty of care. It raised issues of contributory negligence. The issues are as follows:-

“(a) Travelling in a motor vehicle without wearing a seatbelt in contravention of the road rules;
(b) Travelling in a motor vehicle being driven by a person whom the plaintiff knew, or ought reasonably to have known, was intoxicated;
(c) Voluntarily assuming the risk of injury by travelling in a motor vehicle being driven at speeds and in a manner both dangerous to the public at large and dangerous to the plaintiff, for a lengthy period of time prior to the subject accident, without requesting the defendant to cease such driving;
(d) Failing to take care for her own safety by not asking the defendant to cease driving at speed;
(e) Failing to take care for her own safety generally in the circumstances;
(f) Consuming alcohol to a point such that the plaintiff was incapable of forming a rational judgment as to whether the defendant was capable of driving a motor vehicle and as such, failing to take care for her own safety in circumstances where the plaintiff knew, or ought to (sic) reasonably to have known, that she was being carried in a vehicle driven by an intoxicated driver at significant speeds.”

13 By way of reply, in purported answer to certain of the allegations of contributory negligence, the plaintiff looks to s114 of the Liquor Act 1982(NSW). It prescribes offences concerning the sale or supply of liquor to a person under the age of 18 years.

14 The hearing commenced on 27 August 2007. On 28 August 2007, the parties reached a consensus as to damages (see Exhibit E). The hearing then continued in respect of the matters raised by the defence and the reply. Submissions on these questions concluded on 3 September 2007.

15 On the questions of contributory negligence, the defendant has called a number of witnesses (Damien Serratore, Jason Nestorovski Norlyper Gosby, Senior Constable Bradley Spaulding, Brett and Alison McGinty, William Osorio and Michael Griffiths). The defendant has also tendered documentation (including a large bundle of photographs, the Police Report and witness statements). The documentation includes the earlier mentioned statement and the record of interview given by the defendant. It was initially marked MFI 1. The plaintiff relied on reports from, and the oral evidence of, Doctors Ellis, Selby-Brown and Sun.

16 On the day preceding the accident, the plaintiff and her child had been at the Osorio premises (visiting for the weekend from Canberra). Osorio went to work. The defendant was present for most of the day. Dutton visited in the afternoon. A consensus emerged to stay the night and have a few drinks.

17 At or about 7.00-8.00pm, a decision was made to purchase alcohol. A purchase (involving bourbon and beer) was made at the local bottle shop. Save for Dutton, all participated in the purchase. There was chatting and socialising. There was a drinking of alcohol until about 10.00 or 11.00pm (the men drank beer and the females (which have been described by Osorio and the defendant as “the girls”) drank bourbon and coke). The defendant has said “the girls drank the whole bottle of bourbon between them. They would both of (sic) had the same amount.” The defendant decided to go for a drive and the others volunteered to join him. They left for the City after midnight. It was whilst they were at Bondi that the defendant received a call on his mobile phone which brought about the trip home and the driving south along Woodville Road.

18 The parties appear to accept that, whilst the defendant had drunk alcohol during the day preceding the accident, he had probably ceased drinking by about 11.00pm. The amount that he had consumed is the subject of two competing versions (the earliest version was between six and eight stubbies of VB beer, but it was later reduced to an amount between four and five beers in his record of interview). When he was tested (many hours after the accident), a negative reading was produced. He has said that “the girls were aware that I was drinking alcohol.” He had not had anything to eat.

19 Alcohol was placed in the vehicle for the purposes of the journey into the City. A bottle of bourbon (Jim Beam) was found and photographed near the damaged vehicle after the accident. After the accident, there was a strong smell of alcohol within the vehicle. Shattered bottles of VB beer were located around the vehicle and freshly leaked beer could be seen pooled around the broken bottles. This may have been a result of the accident.

20 Prior to the accident, the defendant’s vehicle was travelling south along Woodville Road. During that time, it was observed by the occupants of three other vehicles. The vehicles have been described as being a green Honda (driven by an off duty policeman, Mr Serratore, and in which Jason Nestorovoski was a passenger), a purple Festiva (in which Norlyper Gosby was a passenger) and a red station-wagon (which was driven by Mr McGinty and in which his now wife was a passenger). The purple Festiva was the vehicle overtaken immediately prior to the accident. All vehicles came upon the scene of the accident, stopped and the occupants attended upon it.

21 The evidence established that prior to the accident the defendant was seen to be driving the vehicle at a fast speed along Woodville Road, that there was a challenge made by Osorio to the driver of the green Honda to a race (at traffic lights located at its intersection with Parramatta Road) and that the defendant swerved his vehicle into the lane in which the green Honda was travelling, forcing it to veer left to avoid a collision and clip the gutter. The defendant’s vehicle was seen to take off. It was quickly lost sight of. A speed estimate of 120 kilometres per hour was given. It was also seen to be swerving in between two cars and in between lanes. It was observed as travelling too fast immediately prior to the accident by the passenger in the purple Festiva (this passenger has been described as an Asian lady). It was also seen to disappear and later to be sliding and becoming airborne before it finally ended upside down.

22 Mr McGinty made the observation that, when his vehicle and the defendant’s vehicle were at a set of lights, there was a lot of movement in the car, with hands and legs moving about, and climbing from the front seat to the back seat and vice versa. He said that when the lights changed, the defendant’s vehicle came across into his lane and pushed the black car in front of him off towards the gutter. At this time, his vehicle was behind the Commodore when the contact was made with the green Honda. He later saw it travelling at high speed (he described it as being like a “bat out of hell”). He also said that the vehicle kept getting red lights, thereby enabling his vehicle to catch up with it, and that when the lights would turn green, it would again accelerate quickly. It fishtailed a couple of times. He said that it was getting away from them twice as fast as they were moving and that this happened on a minimum of four occasions. His vehicle was one of the first vehicles to arrive at the scene of the accident. He observed an Asian lady at the scene. At the time, both girls were out of the car. He gave an estimate of speed as being in excess of 110 kilometres per hour.

23 There was a consensus that a distance of 7.07 kilometres ran between where the incident with the green Honda took place and the scene of the accident.

24 In oral evidence Mr Osorio said that he had had about eight beers prior to going into the City and described himself as drunk. He said that he and the girls drank beer during the trip. He said that the girls looked fine. He said that he did not know how much the plaintiff had drunk. She did not normally drink. He said that she did not look sober, but she was not too bad. He also described the defendant as appearing to be fine and that he appeared to be driving normally.

25 The statement that he gave to the police on 20 February 2002 was received as Exhibit 12. He verified its contents as being true.

26 The statement contained the following:-

“4. Between the hours of 8pm until 10pm I had about 8 beers. Although we were all sitting together I wasn’t really paying attention to how many beers Jose was drinking. The two girls were also drinking. I was felling (sic) pretty drunk”.

27 He also gave evidence that, about ten minutes prior to the accident, the vehicle was stopped and there was a change of positions. This receives some support from what has been said by the defendant (his statement placed this incident as occurring just after they had turned into Woodville Road and prior to what he says took place between Osorio and the driver of the green Honda). As to why it took place, the versions of Osorio and the defendant stand in conflict (Osorio was unable to ascribe any reason for it and the defendant has said that Osorio “wanted to play the music”). Osorio had been sitting in the back and Dutton was in the front. He moved to the front seat and she moved to the back. The plaintiff was awake and moved to where he had been sitting. In his statement, he said that he saw the plaintiff put her seatbelt on, but that Dutton “didn’t have hers on”. The effect of his oral evidence was that she was wearing a seatbelt when she was sitting in the back seat with him and when he moved to the front seat. He also said that it was the habit of the plaintiff to wear a seatbelt. The defendant has said that he and Osorio put their seatbelts on, but that he did not check to see if the girls had put their seatbelts on. He professed to have no knowledge as to whether or not the plaintiff had been wearing a seatbelt during the driving.

28 In his statement, Osorio also said:-

“9. I wasn’t looking but I would say that Jose wouldn’t have driven any faster than 70km/h leading up to the crash. I felt that Jose was driving safely. No one in the car asked Jose to slow down at all or made any comment about his driving.
10. We had just come over a bridge and were going downhill, there were no cars in front of us, we were travelling in the right hand lane. Suddenly Jose turned to the left. I didn’t see any reason for him doing this other than he may have hit the median strip.
11. The car went left across the lanes and the front of the car hit something. The car spun and then went into the air and flipped. The car came to a stop upside down. I was stuck in my seat hanging upside down because of the seatbelt. I was able to get my seatbelt of (sic) and crawl out of the car. I saw that we had stopped next to a block of flats.
13. I saw Cherie was hanging out of one of the windows on the side of the car, her top half was out of the car on the ground, he (sic) lower half was inside the car, because the car was upside down she was laying on the inside of the roof. Cherie was unconscious, I couldn’t see any blood. Jose and I dragged her away from the car in case it caught fire.”

In his statement, Osorio makes no mention of either the incident with the green Honda or of the challenge made to the driver of it.

29 In his statement, the defendant said:-

“Driving along Woodville Road before we reached the railway bridge, none of the persons in my car asked me to slow down, or stop and allow them to get out. Nobody complained about the manner of my driving at all. Nobody in the car interfered with me at all.”

There is nothing in the evidence given by Osorio that disputed this material and it was not suggested during the cross-examination of him that any complaint or comment was so made.

30 Whilst it was not mentioned in his statement, in the later record of interview the defendant said that before he went to turn right and the collision ensued, his cousin said the words “be careful”.

31 The accident was investigated by Senior Constable Spaulding. He was a member of the Crash Investigation Unit (he had been a member of that Unit for about three years at the time of the accident). He arrived at the scene at about 3.30am. He made an examination of the seatbelts in the vehicle. He said that each of them worked perfectly. The front passenger belt was still locked in its buckle. The examination led him to the view that only Osorio had been wearing a seatbelt at the time of the accident. The basis for that view was said to be as follows [at transcript pp55-57]:-

“Q. And when you say “all rear section seatbelts show no sign of evidence of being worn” what did you do to come to that conclusion?

A. There is a number of ways that I would have come to that conclusion. The first would be if the coupling was still into the housing of the seatbelt. It would obviously shown (sic) it had been worn. I would have pulled the seatbelt fully out. Examined the seatbelt for any fabric transfer, any colour transfer or any stretching of the belt. If there was none of that there are no signs of being worn. Also if the seatbelt comes out a little bit and when let go retracts properly then there are no indications that it is worn.

Q. When you say about the seatbelt being stretched can you just explain to his Honour what that means?
…
A. During the forces of the collision the person, the body weight would exert force on the fabric of the seatbelt and it will stretch, the same as if you stretch any sort of material and then let go, it will have a fray, it will have a rippling - it is a sort - it leaves a rippling in the seatbelt and it is visible to the naked eye.

Q. And in your investigations you looked for that?

A. Yes.”

32 Michael Griffiths (a road safety expert), having qualifications as a Bio-Medical and Mechanical Engineer, prepared a report dated 28 March 2007. His report was Exhibit 13. He gave supplementary oral evidence and was cross-examined at some length.

33 His report contained, inter alia, the following [at p27]:-

“SHEREE ROBENS’ pattern of internal injuries in the thoracic and abdominal regions, in conjunction with the lack of intrusion into her occupant space and lack of direct impacts adjacent to her occupant space, is definite evidence that she was not wearing a seatbelt when the vehicle underwent its various impacts.
…
Given the relatively moderate changes in velocity undergone by this vehicle, a seatbelt would have prevented her body from having impacts of sufficient severity to cause the lung and abdominal injuries she received.
And [at p31]
In conclusion:-
- the left rear occupant’s survival space was intact and unintruded
- all the vehicles impacts were of a moderate nature in terms of resulting deceleration on the vehicle’s occupants
- the survivability of this vehicle’s crash sequence by restrained occupants is strongly supported by the moderate injuries sustained by the restrained front seat occupants who had their head space significantly compromised and who underwent direct impacts to the vehicle roof above their head space
- the pattern of internal injuries to SHEREE ROBENS’ thorax and abdomen is definite evidence that she was not wearing a seatbelt in this crash sequence.
Using the previously described Principles of Occupant Protection, and taking into account her occupant space was intact and unintruded, and the vehicle appears to have decelerated over a long distance with no one impact causing the vehicle to suddenly lose most of its forward velocity, if SHEREE ROBENS had worn one of the available lap/sash seatbelts, she would have been restrained in her seating position and should have been able to “ride down” the various impacts without receiving the brain and internal torso injuries she did.”

34 He gave, inter alia, the following oral evidence [at transcript pp101-103]:-

“Q. You can assume that the evidence given today was that the upper part of her torso was lying outside the vehicle and that her legs were lying on the roof of the vehicle, the vehicle being in it's upside down position, and you were provided with copies of the police photographs?

A. Yes.

Q. At paragraph 9.1 of page 26 of your report under "Opinion: Discussion", you express the view that on the assumption Sheree Robens was observed to be lying with her upper torso partially outside the vehicle immediately after the accident, is definitely evidence that she could not have been restrained within the vehicle by a seatbelt?

A. That's correct.

Q. Why is that?

A. Because basically the seatbelt works in two ways, but in the rollover, the lap part of the seatbelt wedges the human occupant into the seat. You have the V shape from the base of the seat in the back of the seat and then you have the lap part of the seatbelt going around the occupant's pelvic area and that basically wedges them into the seat there. When the vehicle starts to undergo impact, there is two locking mechanisms in the seatbelt. Basically they lock up. When the vehicle goes on its side or is inverted, they stay locked up, so basically the seatbelt would have locked at some earlier stage in the crash phase and would have stayed lock (sic) and it would not be on if your buttocks were firmly engaged with the seat base and the back of the seat to achieve that position.

Q. The fact that the evidence is that Ms Roben's legs were lying on the roof inside the vehicle, does that assist one way or the other?

A. It basically shows that her legs were so far displaced from the seat bite, which is the joint between the base and the back, that she cannot have been restrained by the lap part of the seatbelt.

Q. I understand it's your opinion that the forces in this accident were essentially rollover, not frontal forces?
A. It was a series, a sequence of forces. The number of side-on impacts and then ultimately the vehicle rolled over, but it was a crash where the vehicle stopped over a relatively long distance. It didn't just hit a telegraph pole and come to a sudden stop or hit a brick wall and come to a sudden stop.

Q. Was that--

A. It means that it went through a series of changes in velocity rather than impact.

Q. How does that affect the occupants of the vehicle?

A. It just means it makes it easier for the seatbelt to offer protection because they are offering protection in a series of more moderate impacts rather than one major impact.

Q. I take it the series of moderate impacts relate to, on each occasion, the vehicle came into collision with another structure such as the median strip, the light pole, the gutter - matters of that nature?

A. That's correct. There is physical evidence of all of those impacts.”

35 He said that the change in acceleration would have been experienced relatively equally by both front and rear seat occupants. He said that there were two different changes (the change in the velocity of the car and the level of intrusion into where the occupant is sitting).

He also said that it appeared that the vehicle rolled over one half turn.

36 He was of the view that the injuries suffered by the plaintiff could have occurred when wearing a seatbelt if the accident had been one of a severe frontal impact. In this particular accident, he saw her injuries as being caused by the plaintiff being thrown about in the vehicle’s interior.

37 Mr Griffiths had been shown reports that expressed conflicting views to those held by him. The views had been expressed in reports prepared for the plaintiff (by Drs Ellis, Selby-Brown and Sun). He gave evidence of his disagreement with those views and of the reasons for the stance taken by him (the expression of reasoning process may be found in the transcript at pp108-111).

38 The reports prepared by those doctors form part of a bundle of documents tendered by the plaintiff (Exhibit A). The reports were received subject to objection. The objection concerned material contained therein which purported to address seatbelt issues. The basis of the objection was lack of qualification. None of the doctors had engineering or bio-mechanical qualifications

39 Because the doctors were either at Court or arrangements had been made to have them at Court, I took the course of receiving their evidence and dealing with the question of admissibility later. Subsequently, I took a pragmatic view that the material may as well be allowed to remain in evidence.

40 A report dated 31 July 2007 from Dr Ellis (an orthopaedic surgeon) contained, inter alia, the following [at p2]:-

“Although it is well understood that seatbelt restraints sometimes prevent the patient being thrown hard against the body and windscreen of the vehicle and indeed prevent the patient being thrown from the vehicle, the use of a seatbelt will not always prevent such an injury. Particularly when the vehicle falls on the roof, the patient’s head can be damaged whether they are wearing a seatbelt or not.
I have not seen a photograph of the car and there is no indication of how much it was crushed, that is how much force of pressure was likely to have been delivered to the patient’s head in the accident. The patient has had a violent injury to the pelvis. The history of the injury to the vehicle itself does not inform me how much likelihood there was of the patient’s pelvis being crushed by the injuries of the motor vehicle itself. In the violent forces it could be expected from that source and also from the force of the restraining seatbelt if it was indeed in position. I observe that one of the injuries of the abdomen was a laceration of the liver. This could have been from the force on the front of the abdomen.
From the information available to me I would have expected the body of the vehicle to have been severely damaged.
…
I very much doubt that any one could say with any degree of certainty that this patient’s injuries were typical of wearing or non wearing of a seatbelt or that a seatbelt would have saved her from the degree of injury she sustained to her head and her pelvis.”

41 The report from Dr Selby-Brown (a consultant in orthopaedic surgery and orthopaedic rehabilitation) contained, inter alia, the following:-

“This further report should be considered as an addendum to my report dated 14.3.07. The reported fractures of her pelvis I consider could be consistent with seatbelt restraint at the time of the accident.”

42 The report from Dr Sun (a consultant in rehabilitation medicine and pain medicine) contained, inter alia, the following:-

“I refer to your latter dated 17 January 2005 requesting comments on injuries sustained as a result of wearing the seatbelt. I believe the comminuted pelvic fracture, liver laceration and splenic injury, pneumothorax are all as a result of the presence of a seatbelt.”

43 The plaintiff has submitted that this material should be preferred to the views of Mr Griffiths. The submissions levelled criticisms in respect of the views expressed by Mr Griffiths. I do not accept those submissions.

44 One of the criticisms was that he neither inspected the vehicle itself nor attended the scene of the accident. I am not persuaded that such criticism in any way weakens the views expressed by Mr Griffiths. He had a comprehensive set of photographs (Exhibit 1) together with a range of other material. The photographs numbered 103 and depicted, inter alia, the damage done to the vehicle (including the significant damage to the windscreen and roof space of the front seat occupants). The views expressed by the doctors relied on by the plaintiff were formed without even having the benefit of the photographs.

45 The relevant material contained in the reports and oral evidence was small in compass. The opinions expressed in the material had their differences. At best, it could be said that each of the doctors had but limited qualification and material to enable them to express their respective views. I regard what was said by them as having little probative value. The experience had by the doctors was largely limited to having provided reports in respect of persons injured in motor vehicle accidents (which were based on histories given to them) in which opinions had been expressed concerning the consistency of injuries with the wearing of a seatbelt. In this case, the Court was also concerned with the question of whether or not injury had been suffered because a seatbelt had not been worn. The doctors lacked specialised knowledge in the area of the forces at play in traffic accident situations and of the restrictions in movement brought about by the use of a seatbelt. In the case of Dr Sun, his opinion was based on the assumption that the plaintiff was wearing a seatbelt. The little weight that could be given to the material was seriously eroded by what emerged in cross-examination (particularly so in the case of Dr Selby-Brown). Where there is conflict with the views expressed by Mr Griffiths, I prefer his evidence.

46 MFI 1 comprised a statement made by the defendant on 13 February 2002 and a record of interview given by him on 3 April 2002. The plaintiff objected to the tender.

47 Largely, the argument on the question of admissibility took place prior to my having the opportunity to read the material. The stance taken by the plaintiff stressed prejudice and/or unfairness.

48 The case for the defendant is in the hands of his insurer. Prior to the commencement of the hearing, he was served with a subpoena to attend and give evidence. He has not been at Court at any stage during the hearing. On the fourth day of the hearing the defendant sought, and was successful in, the attaining of the issue of a Bench Warrant (on the ground of contempt by reason of non-compliance with the subpoena). The issue of the Bench Warrant has not seen him being brought to Court.

49 The defendant looks to s63 of the Evidence Act 1995 (NSW). This section is an exception provision. The hearsay rule has application unless notice is given pursuant to s67. Sub-section (4) thereof enables the Court to direct that s63 has application despite failure to give that notice.

50 It is common ground that the requirements of s67 thereof have not been met. What is sought by the defendant is that which is described as a dispensation with the notice provisions. Section 67 confers a discretion, enabling a Court to receive the evidence despite the failure to give notice.

51 The thrust of what has been put on behalf of the plaintiff is that the admission of the material will deprive her of the opportunity to cross-examine the defendant. I do not accept that argument.

52 The plaintiff concedes that at the time of the tender of MFI 1, the defendant was not available to give evidence in the sense contemplated by s63.

53 A reading of the material reveals content that gives support to the case of the plaintiff. There is material therein which is consistent with what has been said by Osorio and the plaintiff has had the opportunity to cross-examine him. Indeed, it seems that the plaintiff would have little (if any) need to challenge the contents thereof by way of cross-examination. That this was the case, did not seem to be in dispute. What emerged from further submissions was that the plaintiff had in mind using cross-examination for the purposes of obtaining concessions on other matters.

54 This is not a case where the lack of notice gives rise to any prejudice or unfairness. It is also not a case where the admission of the material gives rise to any real prejudice or unfairness to the plaintiff. What the plaintiff is really saying is that she has been deprived of the opportunity to cross-examine the defendant because he was unavailable to give evidence.

55 In the circumstances, I made the decision to admit MFI 1 into evidence as Exhibit 17.

56 The plaintiff was a minor. It is common ground that the defence of contributory negligence is to be determined having regard to common law principles, and that the compulsory findings referred to in s138 of the Motor Accidents Compensation Act 1999 (NSW) have no application.

57 The plaintiff was obliged to take reasonable care for her own safety. The defence raised in this case involves three areas (the consumption of alcohol, the manner of driving and failure to wear a seatbelt).

58 Before proceeding further it is convenient to now deal with certain matters that were raised by Counsel for the defendant.

59 The plaintiff relies on s114 of the Liquor Act as an answer to the defence of contributory negligence. It was a matter that received but little attention during the course of argument. In my view, the provision has no relevance in this case.

60 Section 114 is comprised in Part 7A (which is headed “Minors”). Division 1 thereof is headed “Functions for minors on licensed premises” and Division 2 is headed “Offences relating to minors”. Section 114 forms part of Division 2.

61 Section 114 prohibits the selling or supplying of liquor to a person under the age of eighteen years in any place (whether or not licensed premises). In my view, the defendant did not either sell of supply liquor to the plaintiff. The plaintiff and others purchased the liquor from a bottle shop.

62 The plaintiff submits that an inference should be drawn from the failure of the defendant to call a pharmacologist (Dr Perl). In this case, there is no basis for drawing any such inference. Save for the mention of the Doctor’s name on a few occasions from the Bar table (inter alia, that she was overseas), there is no evidence whatsoever to support the drawing of any inference of the nature sought by the plaintiff.

63 The plaintiff also looks to Regulation 47B of the Road Transport (Safetyand Traffic Management) (Road Rules) Regulation 1999(NSW). The Regulation prohibits the driving of a vehicle when there is more than one person in the vehicle not wearing a seatbelt and imposes a maximum penalty of twenty penalty units. Again, this was also the subject of little argument and I am not persuaded that it has any application to the matters in this case.

64 There seems to be a consensus that those who observed the driving of the defendant did their best to give truthful and reliable evidence. Generally speaking, the approach by the parties is that their evidence should be accepted (save for the matters raised by Counsel for the plaintiff in the plaintiff’s closing submissions). Largely, I accept their evidence. In particular, Mr and Mrs McGinty were impressive witnesses. I also accept the evidence given by Mr Griffiths. He had the qualifications to give that evidence and, in my view, he did so impressively. I do not accept the submissions made by Counsel for the plaintiff to the effect that he was in some way biased or an advocate for the defendant. I should add that no such suggestion was put to him during cross-examination. I have already commented on the evidence given by Doctors Ellis, Selby-Brown and Sun. It follows from what has been earlier said that I am largely unpersuaded by what has been said by them.

65 Osorio was the only occupant of the defendant’s vehicle who gave oral evidence concerning the relevant events. Although he was the former boyfriend of the plaintiff and the father of her child, he was called by the defendant. His statement and oral evidence contained material that did not advance the case of the defendant (indeed, there was material that advanced the plaintiff’s opposition to the defence of contributory negligence). Whilst it was not said that he was an untruthful witness, the defendant submitted that certain of his evidence should not be accepted. His statement contained material that was inconsistent with and/or in conflict with evidence given by the other observers of the defendant’s driving and of the accident as well as with certain of the material contained in Exhibit 17.

66 There is also conflict between the opinions expressed by Mr Griffiths and evidence given by Osorio. The evidence of the latter was not really tested. I have already mentioned the circumstances in which he came to be called. It was left unchallenged by both Counsel. His evidence gave the impression of being calculated to protect the positions of himself and others.

67 The circumstances in which this question of conflict was thrown up had its special features and confronted the Court with a matter which has caused me much consideration. In the end, I have come to the view that I should not accept certain of the evidence given by Osorio (including such evidence as there may be as to the plaintiff’s wearing of a seatbelt at the time of the accident). I have been assisted in coming to that view by the overwhelming other evidence that demonstrates that she was not wearing a seatbelt at that time. I shall now refer to certain of this material.

68 Osorio has admitted that he was in a state of drunkenness prior to the accident. Because of that matter alone, it seems to me his evidence has to be approached with caution and that little weight can be given to certain of the observations purportedly made by him whilst he was in such a state.

69 Further, I do not accept such observations where they are inconsistent with, or stand in conflict with, evidence given by the other observers of the defendant’s driving.

70 However, leaving aside those matters, there are other considerations which lead me to the view that such observations (including those concerning seatbelt wearing by the plaintiff during the drive leading up to the accident) were not reliable.

71 The evidence of Osorio (both in his statement and that which was given orally) had a temporal limitation. It was to the effect that the plaintiff was wearing a seatbelt at the stage when he moved to the front seat. He gave an incomprehensible response to a question concerning movement in the vehicle thereafter and the matter was not pursued by Counsel for the plaintiff. If she was wearing a seatbelt at that stage, she could still have taken it off thereafter and not have been wearing it at the time of the accident. Such a position would be consistent with what was observed by Mr McGinty and with what later happened.

72 There was other evidence (including what was said by him as to the manner of the defendant’s driving) that was implausible and much of it stood in conflict with other evidence (two examples of such evidence were that the defendant wasn’t driving any faster than 70 kilometres per hour leading up to the accident and that Osorio felt that the defendant was driving safely). In my view, his evidence was substantially unreliable. I shall cite two further examples. He did not observe the purple Festiva. His contrary version was that “there were no cars in front of us.” His statement contains no reference to the incident with the green Honda.

73 Mr Griffiths rejected the three suggestions put to him during cross-examination (that changes in direction by the vehicle may bring about slackness in the seatbelt which would have enabled the plaintiff to be thrown out of it, that there could have been a flaw in the seatbelt which could have resulted in it becoming undone and that the plaintiff herself could have struck the seatbelt and released it).

74 The evidence establishes that Osorio was wearing a seatbelt at the time of the accident. Although there is some conflicting evidence on the matter, the defendant has said that he was wearing a seatbelt at that time. The evidence of Osorio did not address the matter (neither Counsel asked him any question concerning it). Both front seat passengers suffered relatively minor injury even though their headspace had been significantly compromised. The forces on all four occupants were essentially the same. The back seat passengers suffered similar extensive injuries. Dutton was definitely not wearing a seatbelt. The position of the plaintiff in the vehicle immediately after the accident was not consistent with her having been wearing a seatbelt at the time of it. There is nothing in the evidence to suggest that a seatbelt was removed to enable her to be taken from the vehicle and placed nearby.

75 In my view, the material comprised in Exhibit 17 is to be approached with caution. It is untested. It was not contemporaneous with the accident. The defendant had ample opportunity for reflection before it was provided by him. There is a “self-serving” content in the material. What has been said by the defendant in both his statement and record of interview gives the impression of attempted avoidance by him of conceding material that might be perceived by him as detrimental to his situation (including making any admission as to speed). There is conflict between content in the statement and that which appears in the record of interview. The impression given by the content of the record of interview is that the defendant was then doing his best to further protect his own position and was seeking to make improvements to his earlier version of the events. It was given well after the accident. I regard it as being less truthful and reliable than the statement. However, both documents contain material that is implausible. The end result is that much of his material cannot be regarded as being either truthful or reliable.

76 In Joslyn v Berryman (2003) 214 CLR 552, McHugh J said of the common law rules of contributory negligence [at p558]:-

“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed 6 . In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered.”

His Honour further said [at p564]:-

“The test of contributory negligence is an objective one. Contributory negligence, like negligence, "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question." One exception to that rule is that, in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child.”

And [at pp566-567]:-

“Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.”

77 In this case, the task of fact-finding has its difficulties. The oral evidence from the occupants of the Commodore is limited. The other material from them suffers substantially from implausibility.

78 As earlier mentioned, at the time of the accident, the plaintiff was 16 years of age and a minor.

79 The plaintiff was a contributor to the purchase of the alcohol consumed by the foursome. She was a willing participant in both the drinking of alcohol and the trip to the City and back.

80 Prior to volunteering to being driven by the defendant, the plaintiff had been with him and others during a period of hours. In those circumstances, she would have observed his consumption of alcohol. I consider that an ordinary reasonable person (a sober one) would have been aware of the defendant’s condition.

81 The probability is that the amount consumed by him was at least in the order of six to eight stubbies of VB beer. It was an amount that would have impaired his capacity to safely drive a motor vehicle at the time when the decision was made to go for a drive and which saw them proceeding into the City.

82 Osorio may have drunk more prior to the commencement of driving into the City. The defendant appears to have ceased drinking by about 11.00pm. Save for the defendant, the others drank more thereafter. Osorio has admitted reaching a state of drunkenness at some stage (and that matter does not seem to be in issue between the parties) and was in that condition when the Commodore was at the intersection of Woodville and Parramatta Roads (the intersection).

83 In my view, the plaintiff ought to have been aware that, at the time of the making of the decision, the driving capacity of the defendant had been impaired by his consumption of alcohol. She was then exposing herself to a risk of injury by becoming a passenger in a vehicle driven by him. However, in the circumstances of this case, such exposure may not necessarily be related to the injuries that were later suffered by her. The accident did not take place until some hours later.

84 The evidence (such as it is) is consistent with an impression that the trip into the City, and most of the return home, may have been unexceptional. Whilst problems were clearly apparent by the time the Commodore reached the intersection, it seems unlikely that a dramatic change in manner of driving would have suddenly manifested itself at the time the Commodore was about the intersection.

85 During the relatively short period that thereafter followed (involving the traversing of about 7 kilometres of roadway), the defendant engaged in numerous episodes of dangerous driving (involving high speed and dangerous manoeuvres). In the course of this exercise, he was forced to stop at a number of red lights.

86 The dangerous nature of the driving was obvious to those who gave evidence about it and would have been obvious to a reasonable person who was sitting in the back seat of the gold commodore at the time. Indeed, it could be expected that such a person would have experienced great fear for his or her own safety. At least during this period, the plaintiff ought to have appreciated a risk of injury by reason of remaining as a passenger in a vehicle being so driven. Despite this, there is no evidence of any comment or complaint by her as to the driving of the defendant and she remained in the vehicle.

87 I do not accept the submission made by her Counsel that the plaintiff lacked opportunity to comment, complain or leave the vehicle during, at least, this 7 kilometre period (inter alia, the vehicle came to stop at a number of red lights whilst the defendant was engaged in the dangerous driving).

88 The accident that resulted was due to the dangerous manner in which the defendant was driving. There was, inter alia, high speed and loss of control. At first blush, the answer to the question of whether or not the impairment of driving capacity resulting from the alcohol that had been earlier consumed by him played any role in the bringing about of such driving and her injuries seems to me to fall into the area of conjecture.

89 I am satisfied that the defendant has proved that the plaintiff was not wearing a seatbelt at the time of the accident. A reasonable person placed in the circumstances that I have mentioned would know that he or she was exposing him or herself to a risk of injury by not wearing a seatbelt. It seems to me that she suffered injury because her body was unrestrained by a seatbelt and was thrown about in the vehicle. I consider that her failure to wear a seatbelt at the time of the accident was a significant factor in the suffering of injuries by her.

90 These findings may assist the parties in reaching agreement as to the apportionment of damages and I encourage the parties to pursue that course. If a consensus is not so reached, the matter may be re-listed for further argument.

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