Sheeran v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 274
•17 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sheeran v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 274 |
| CLAIMANT: | James Sheeran |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 17 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether accident caused wholly or mostly by the fault of the claimant for the purposes of section 3.28; claimant’s vehicle crossed over double white lines onto the opposite side of the road and collided with two vehicles; no fault on the part of other drivers involved in accident; insurer relied on res ipsa loquitur to support a finding that the accident was caused by the claimant’s failure to exercise reasonable care; evidence that before the collisions the head of the claimant was slumped; claimant argued accident caused by medical episode; Nguyen v Cosmopolitan Homes applied; Schellenberg v Tunnel Holdings Pty Ltd, Insurance Australia Limited t/as NRMA v Richards, Richards v Insurance Australia Limited t/as NRMA Insurance (No 2) discussed and considered; Held – possible explanations for the accident included the claimant failing to exercise reasonable care, that he experienced a medical episode, or had a micro-sleep; none of the explanations rose above a possibility; insurer failed to discharge the onus of proving on the balance of probabilities that the accident was caused wholly or mostly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under section 7.36 of the Motor Accident Injuries Act 2017 1. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 2. A statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
James Sheeran suffered serious injuries in a motor accident on 12 December 2023 (accident). He has made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). Liability for the claim after 52 weeks has been denied by the insurer.
These proceedings were commenced by Ms Beasley, Mr Sheeran’s daughter, on his behalf. The application names Ms Beasley as her father’s appointed representative. At the preliminary conference held on 24 March 2025 Mr Sheeran and Ms Beasley confirmed that he was not a person under legal incapacity, as that term is defined in s 1.4 of the MAI Act. That being the case, Ms Beasley could not be his appointed representative.
Mr Sheeran, who is now in his early 80’s, confirmed that he wanted his daughter to represent him in the proceedings, that he authorised her to do so, and that she had authority to make binding decisions on his behalf in the proceedings. In these circumstances, Ms Beasley was given leave to represent her father.
Although a number of disputes were referred to in the application filed on Mr Sheeran’s behalf, most of which relate to treatment, the parties confirmed that the only decision that had been the subject of an internal review is the insurer’s decision that the accident was caused wholly or mostly by the fault of Mr Sheeran for the purposes of s 3.28. Mr Sheeran disputes that the accident was caused by his fault. It is that dispute that falls to be determined in the proceedings. The dispute is a miscellaneous claims assessment matter: Sch 2 cl3(e).
LEGAL FRAMEWORK
The proceedings involve a dispute about whether for the purposes of s 3.28 of the MAI Act the accident was caused wholly or mostly by the fault of Mr Sheeran. Section 3.28 states relevantly:
“3.28 Cessation of statutory benefits after 52 weeks to injured adult persons most at fault or to injured persons with threshold injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) ...
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) (Repealed)”
Section 3.28 is directed to the extent to which an injured person’s failure to take reasonable care contributed to the motor accident: AAI Limited t/as GIO v Evic [2024] NSWSC 1272 at [57] and [62]. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person: s 5R(2)(a) Civil Liability Act 2022.
The driver of a motor vehicle is required to take reasonable care having regard to all the circumstances: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) McHugh J at [26]. The duty is always the same: to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. More often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
The burden of proving that the accident was caused wholly or mostly by the fault of
Mr Sheeran lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident was caused wholly (or mostly) by his fault: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45] [55] and [67].
HEARING
The proceedings were listed for hearing on 12 June 2025. Ms Beasley represented her father, who was present and participated in the hearing. Mr Gil represented the insurer.
The insurer sought and was given leave to rely on frame by frame stills of the CCTV footage that depicts the accident. I am satisfied that the introduction of this material is necessary to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings
The parties agreed that:
(a) at the time of the accident Mr Sheeran was certified fit to drive[1];
(b) at the time of the accident Mr Sheeran held a valid licence and did not have any conditions on his licence;
(c) at the time of the accident Mr Sheeran had been diagnosed with and was taking medication for diabetes and hypertension;
(d) Mr Sheeran had not consumed either alcohol or illegal drugs prior to the accident;
(e) the distance by car from Mr Sheeran’s friend’s place to his home was approximately 40km and would take 35-45 minutes to drive;
(f) Mr Sheeran was not using GPS or any other device when the accident occurred;
(g) Mr Sheeran’s vehicle crossed over double white lines and entered the lane for traffic travelling in the opposite direction;
(h) neither the driver of the RAV4 nor the Hino truck were at fault for the accident;
(i) Mr Sheeran was wearing his seatbelt, and
(j) speed was not a factor in the accident.
[1] NSW Fitness to Drive Medical Assessment referral date 3 January 2023.
The oral submissions made by the parties are discussed later in these reasons. At the conclusion of the hearing, I reserved my decision.
EVIDENCE
On 4 April 2025 the insurer filed a bundle that contains material relevant to the fault dispute together with written submissions addressing that dispute. In addition to this material, NSW Police have produced documents in response to a direction for production served by the insurer[2] and the insurer sought and was given leave to rely on frame by frame stills of the CCTV footage produced by NSW Police.
[2] 8 binders, CCTV footage, and dashcam footage.
At both the preliminary conference held on 20 May 2025 and at the hearing Ms Beasley confirmed she had access to the bundle lodged by the insurer and the material produced by NSW Police. Mr Sheeran did not rely on any additional evidence.
Documents in the bundle
Mr Sheeran’s application for personal injury benefits dated 1 January 2024 identifies the location of the accident as Scenic Drive, Budgewoi, but does not contain a description of the accident.
The evidence before the Commission includes an investigation report prepared by quantumcorp dated 10 September 2024. The report includes a description of the accident scene and the circumstances of the accident, provides details of enquiries made with witnesses, including police, and contains photographs of the scene, stills taken from CCTV footage, and diagrams.
It is recorded in the report that attempts were made to obtain a statement from the passenger in Mr Sheeran’s vehicle, Mr Ball, and that his daughter told the investigator that he suffers from dementia and has no recollection of the accident.
The report includes a signed statement from Mr Sheeran dated 14 August 2024. Mr Sheeran stated that in the 12 hours prior to the accident he had not consumed any alcohol or illegal drugs and was “not under the influence of any medications that may have affected [his] ability to drive”. He stated that “I have diabetes however I have spoken to the doctors and they did not find anything in my blood test to explain my loss of consciousness”. He was familiar with the area as it is a route he had driven on “quite a few occasions”.
Mr Sheeran stated:
“[24]On the 12 December 2023, I attended a friend's house in the Morisset area. I had a salad with some cold meat for lunch. I did not consume any alcohol.
[25]After lunch Edward and I entered the vehicle and I intended to drive home. I felt fine at the time we left.
[26]About 3.15pm I travelled east on Scenic drive, Budgewoi. I remember passing through the roundabout at the intersection of Noela place and Scenic Drive and going past the strip of shops.
[27]The next thing I remember was seeing a truck in front of me. I was unable to react in time and crashed head on into the truck. I remember a big impact and the airbags going off…
…
[35]I cannot declare that I was at fault in the accident as I do not recall the moments that lead up to seeing the truck…”
The investigation report includes a transcript of an interview with Senior Constable Ah Tow on 15 March 2024. The Senior Constable was in the vicinity and attended the scene shortly after the accident occurred. He had attended “potentially close to 50 – 50 or more” motor vehicle collisions in his 13 plus years of service. He described the weather as being “fine, sunny”, and the road condition as “…fine…it didn’t appear to have any issues…”.
Senior Constable Ah Tow described the accident scene, the occupants of the vehicles involved and the positions of the three vehicles on the roadway. Mr Cooper’s version, which is recorded in his notebook, was read onto the transcript. He confirmed that the Crash Investigation Unit (CIU) had carriage of the investigation. In this regard, he stated:
“A80…Crash came up, processed the scene. I can't remember. I think they may have spoken to witnesses. But, we obviously passed on the information. And, I was communicating with the Crash officer…Brian Wilson…”
Senior Constable Ah Tow confirmed that Mr Sheeran’s blood results came back negative for alcohol, as did the results for the other drivers involved in the accident.
A Police report dated 15 January 2024 contains details of the accident, including the location, drivers and vehicles involved and a summary of the circumstances. This is an abridged version of the report produced under direction by NSW police.
Various certificates of fitness include details of Mr Sheeran’s injuries, capacity for activities and his treatment. A report of Divya Parsotam given in an email dated 17 April 2024 contains details of his progress following the accident and his treatment and care requirements.
Correspondence from the Department of Health dated 31 May 2024 deals with Mr Sheeran’s eligibility for care. An assessment summary addresses his care needs.
The records from Bateau Bay Medical Centre include a NSW Fitness to Drive Medical Assessment dated January 2023, records from Wyong Hospital relating to an admission in May 2023, together with treatment and management plans, radiological reports, records and reports (including operation reports) from John Hunter Hospital relating to Mr Sheeran’s admission following the accident, and a discharge summary dated 2 July 2024.
Documents produced by NSW Police
NSW Police have produced documents in response to a direction for production. Senior Constable Ah Tow’s notebook contains the following version of the accident provided by the driver of the truck, Mr Cooper on the day of the accident:
“…I was travelling north on Scenic Hwy, Bud-gewoi traveling approximately 45-50 kilometres an hour. I was travelling behind a silver Toyota. I saw the silver Toyota veer to the left and I was thinking what they were doing. I then noticed a yellow Gold Falcon. It was travelling in the opposite direction. It was about three quarters on the wrong side of the road. It was coming straight for me. I had nowhere else to go. The vehicle collided with my
cornerdrivers side”.
The following version provided by Mr Sheeran on 18 April 2024 is contained in the Senior Constable’s notebook:
“Q: Could you tell me what happened?
A: I think it must have been a nanny nap. I came back from Bonnetts Bay where I had lunch at a private residence. All I can remember is that I come down from Wyee near the big intersection where the metro service station is and onto Scenic [D]rive
Q: What time did you go to bed the previous night?
A: I usually get into bed about 9:30.
Q: What time did you wake up in the morning?
A: Between 7 and 8.
Q: What time did you leave to go to Bonnetts Bay?
A: 11, half past 11 about 11 o’clock
Q: Do [sic] you give a lift to anyone?
A: Eddie me mate, a neighbour…
…Q: Whilst driving did you feel tired at any point?
A: No I didn’t
Q: Have you ^ ever suffered any episode previous [sic] when driving?
A: Never before
Q: Do you take any medication for anything
A: One for blood pressure and one for blood sugar
Q: How often are you prescribed to take medication?
A: Every day
Q: Do you recall feeling any different [j]ust prior to the collision”
A: No.
Senior Constable Callaghan’s notebook contains a version of events provided by Kim Robertson as follows:
“…Seen VH 1 coming towards me, he was drifting across onto my side.
I went up to the gutter to avoid VH1. His car hit rear drivers side.
VH1 then had a head on behind…”
It is recorded in Senior Constable Callaghan’s notebook that Edward Ball was a passenger in the vehicle driven by Mr Sheeran.
A NSW Police Force COPS report dated 4 May 2024 contains details of the accident, including time, date, location and details of the drivers involved. The three vehicles involved in the accident were:
(a) VEH1 - Gold Ford Falcon (Mr Sheeran’s vehicle)
(b) VEH2 – Silver Toyota Rav4 (driven by Ms Robertson)
(c) VEH3 – Hino truck (driven by Mr Cooper)
Mr Ball is named as a passenger in Mr Sheeran’s vehicle.
The report contains the following narrative:
“About 2:34pm on Tuesday 12th of December 2023, [Mr Sheeran] drove a gold Ford Falcon… in an easterly direction on Scenic Drive, Budgewoi. VEH1 drove passed [sic] the intersection of Alawai Ave and proceeded to veer across the double unbroken lines to the opposite side of the road.
VEH 2, which was approaching from the opposite direction and was followed behind by VEH3. VEH2 has swerved left to avoid a collision with VEH1, which continued to veer onto the incorrect side of the road. The drivers side mirror of VEH1 has come in contact with the rear offside of VEH2 causing scratch damage. VEH1 continued on its path and come into heavy contact front on with the front offside of VEH3. The momentum of the impact has forced VEH1 to rotate 180 degrees before coming to a complete stop…”
The COPS report records that the drivers of VEH2 and VEH3 were breath tested with a negative result. A blood sample was taken from Mr Sheeran, and the results were “negative to alcohol”. It is recorded that both he and Mr Ball suffered serious injuries. The CIU was involved in investigating the accident.
The narrative details in the report include the following:
“Resulting from the witness account of Grant COOPER[3], that as the Ford Falcon crossed on to the incorrect side of the road, with the head of SHEERAN slumped at the wheel, Investigators have concerns that either fatigue or medical episode has occurred. Therefor a question of fitness relating to further driving by SHEERAN has been submitted to Transport for NSW…”
[3] The driver of the Hino truck.
The report records that a version of the accident was obtained from Mr Sheeran on
18 April 2024, and that he:
“…could not provide an explanation for the collision and could only recall driving onto Scenic Drive from Wyee Rd”.
It is then recorded:
“…Answers supplied were insufficient to ascertain whether tiredness was a cause. DRV1 does take prescription medication daily for blood thinning and blood sugar”.
The report records that police spoke to Mr Ball and that he:
“…was unable to recall much about the incident. Questions were asked in relation to the driver. [Mr Ball] did not identify a reason or explanation as to why the collision occurred.”
The report states:
“Based on all the avenues of investigation, including input from CIU[,] Investigators believe the collision was the result of a possible medical episode. CIU investigators have already submitted a question of fitness on the driver. No formal action to be obtained by police…”
The COPS report does not record an estimated pre-crash speed of Mr Sheeran’s vehicle. The speed of the Rav4 was estimated to be 50kmph, and the speed of the Hino 50kmph. A site diagram depicts the movement of Mr Sheeran’s vehicle and the points of impact with the Rav4 and the truck.
The documents produced by police include a “Question of Fitness to Hold a Driver Licence”, completed by Leading Senior Constable Wilson of the CIU. Under the heading “Evidence of unsafe driving” the following is recorded:
“…Witness accounts stated, the head of SHEERAN was slumped over the wheel. Investigations are continuing as to whether SHEERAN suffered a medical episode. Information from family is that SHEERAN is a diabetic…”
The documents produced by NSW Police include over 550 photographs. The photographs were taken at the scene of the accident and depict (among other things) Mr Sheeran’s vehicle and the truck at rest on Scenic Drive. Damage to the front of both vehicles can be clearly seen. Photographs of the inside of Mr Sheeran’s vehicle show the airbags were deployed.
Photographs taken from behind the truck clearly show scuff marks on the roadway leading to the rear wheels of the truck . I am comfortably satisfied that the scuff marks were made by the truck and infer from this objective evidence that Mr Cooper applied the brakes prior to the collision with Mr Sheeran’s vehicle in an attempt to avoid the collision.
Footage of the accident
Included in the material produced by NSW Police are two sets of footage. The first is CCTV footage recorded from a property on Scenic Drive, Budgewoi. The second is dash-cam footage.
I am mindful of the authorities that discuss the limitations of CCTV and photographs, and the caution that must be employed by decision makers with respect to evidence of this kind[4]. The probative value of evidence of this kind will, however, depend on the nature and quality of the video (and photographic) evidence and the issues which need to be resolved[5]. The weight to be attached to such footage is very much dependant on the quality and clarity of the images they depict as well as the context in which they are taken[6].
[4] See for example Angel v Hawkesbury City Council [2008] NSWCA 130, Blacktown City Council v Hocking [2008] NSWCA 144, and more recently Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265.
[5] Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 Sackville AJA (Ward JA and Garling J agreeing) at [42].
[6] QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 Tobias AJA (McColl and MacFarlan JJA agreeing) at [23].
The CCTV footage has limitations: the collision between Mr Sheeran’s vehicle and the oncoming truck is obscured by a tree, and there is distortion of space, distance and likely speed. Despite these limitations, Mr Sheeran’s vehicle can be clearly seen crossing double white lines onto the opposite side of the road. While the collision between Mr Sheeran’s vehicle and the oncoming truck is obscured by a tree, the truck can be seen at the top right of the footage prior to the collision and Mr Sheeran’s vehicle can be seen being propelled backwards on the roadway and spinning in a clockwise direction before coming to a stop, the front of his vehicle facing in the direction of the camera from which the footage was recorded. Damage to the front of his vehicle can be seen. The speed at which his vehicle was travelling immediately before the collision cannot be determined from the footage.
I have also had the benefit of considering the frame by frame stills of the footage. This evidence is relied on by the insurer and discussed later in these reasons.
The dashcam footage was recorded from a vehicle traveling in the same direction as Mr Sheeran some distance behind him, and the movement of his vehicle across the road can be seen from a distance. As the vehicle from which the footage was taken approaches the site of the collision, the Hino truck can be seen stationary wholly within the lane in which it was travelling when the collision occurred. Mr Sheeran’s vehicle can be seen stationary in the middle of the roadway facing.
The CCTV and dashcam footage provide objective contemporaneous evidence that when travelling along Scenic Drive at approximately 2:34pm on 12 December 2023 Mr Sheeran’s vehicle crossed onto the opposite side of the road and collided with an oncoming truck that was wholly in its lane of travel.
SUBMISSIONS
Insurer’s submissions
The insurer relies on written submissions dated 4 April 2025. The basis of its case that the accident was caused wholly by the fault of Mr Sheeran is addressed at paragraphs [24] – [38] of the submissions.
In the insurer’s submission there is no evidence that any factor, other than Mr Sheeran’s steering input, that caused the vehicle to cross the double white lines into oncoming traffic. The insurer submits Mr Sheeran failed to exercise reasonable caution and care, did not maintain a proper lookout, and did not drive in accordance with prevailing road conditions.
In addition to the matters addressed in the insurer’s written submissions, the insurer relies on Richards v Insurance Australia Limited t/as NRMA Insurance (No 2) [2024] NSWPIC 252 (Richards (No 2)), in particular paragraphs [208] – [213]. The insurer argues that an inference that the accident was caused wholly by Mr Sheeran’s fault should be drawn from the fact that the vehicle he was driving crossed over to the other side of the road and collided with an oncoming vehicle.
In oral submissions the insurer argued that:
(a) Mr Sheeran was well rested before the accident;
(b) medical investigations, that included cardiological investigations[7] and a CT of the brain[8], failed to identify a medical cause for the accident;
(c) there was no evidence that diabetes, hypertension or any other medical condition played a role in the accident;
(d) the CCTV footage did not show Mr Sheeran slumped at the wheel of his vehicle;
(e) other than the commentary in the police report there is no reference in the versions of the accident provided by witnesses (or in any other evidence) that Mr Sheeran’s head was “slumped at the wheel”;
(f) although it is possible that Mr Sheeran had a medical episode or had a micro sleep, those possibilities do not rise to probabilities;
(g) an inference should be drawn that the accident was caused by the failure of Mr Sheeran to take reasonable care, and
(h) the accident was caused wholly by Mr Sheeran’s fault.
[7] Report of Stuart Turner 20 December 2023.
[8] Performed on 3 April 2023.
Mr Sheeran’s submissions
In written submissions prepared by Ms Beasley, it was argued that:
(a) Mr Sheeran was not taking medication that could cause drowsiness;
(b) there was evidence that Mr Sheeran was slumped at the wheel;
(c) police thought Mr Sheeran had had a medical episode;
(d) the insurer does not have sufficient evidence to rely on res ipsa loquitur as an unexplained accident noting the truck driver’s statement and police findings;
(e) no charges were laid by police due to negligence as during the police investigation negligence was not found or proven;
(f) the facts are different to those in Richards (No 2);
(g) Mr Sheeran was a reasonable person and did not cross the road or mismanage the vehicle intentionally;
(h) the medical episode would have affected Mr Sheeran’s ability and reaction time which means he cannot be held wholly or mostly responsible for something that was out of his control;
(i) the accident does not on all levels speak for itself and there is insufficient evidence to rely on the doctrine of res ipsa loquitur, and
(j) at the particular part of the road where the accident occurred there has been several more accidents since the accident Mr Sheeran was involved in.
In oral submissions at the hearing Ms Beasley argued that the CCTV footage was not clear, and that it could not be determined whether or not Mr Sheeran’s head was slumped, whether he had lost consciousness or fallen asleep.
Reliance was also placed on the record in the police report that Mr Cooper had informed police that when Mr Sheeran’s vehicle crossed onto the incorrect side of the road his head was slumped at the wheel.
Mr Sheeran’s case is that he had experienced a medical episode, that is the reason the accident occurred, and the accident was not cause by any fault on his part.
FINDINGS – CIRCUMSTANCES OF THE ACCIDENT
Just after 2:30pm on 12 December 2023 Mr Sheeran was driving his vehicle in an easterly direction on Scenic Drive, Budgewoi. He was returning to his home at Bateau Bay having spent time with friends in the Morisset area. Mr Sheeran was familiar with the area, having driven the same route prior to the accident “on quite a few occasions”.
The weather was fine, visibility good, and the road was dry and not contaminated with water, oil, or other substance. There was no hazard on the roadway.
At approximately 2:34pm Mr Sheeran’s vehicle crossed over double white lines onto the opposite side of the road and collided with two vehicles travelling in the opposite direction: the first a Toyota Rav4 driven by Ms Robertson and the second a laden Hino truck driven by Mr Cooper. Mr Sheeran’s vehicle collided with the rear driver’s side of the Rav4 and then with the front of the truck. The impact with the truck caused Mr Sheeran’s to rotate approximately 180 degrees before coming to a stop.
Neither the insurer nor Mr Sheeran argue that the accident was caused by the fault of the driver of the Rav4 or the driver of the Hino truck. There is no evidence before the Commission that would support a finding that the accident was caused by the fault of either driver. I find that the accident was not caused by the fault of either Ms Robertson or Mr Cooper.
While Mr Sheeran recalled passing through the roundabout at the intersection of Noela Place and Scenic Drive and travelling past a strip of shops, he has no recollection of events thereafter until just prior to his vehicle colliding with the Hino truck.
Mr Sheeran was interviewed by police in April 2024, some four months after the accident. When asked what happened, he responded “I think it must have been a nanny nap.” In his statement he said that he “cannot declare that [he] was at fault in the accident as [he did] not recall the moments that lead up to seeing the truck…”.
I find that Mr Sheeran does not recall, and does not know, why his vehicle crossed to the opposite side of Scenic Drive and into the path of oncoming traffic.
The narrative in the police report records that Mr Ball, the passenger in Mr Sheeran’s vehicle, was “unable to recall much about the incident”, and that he “did not identify a reason or explanation as to why the collision occurred”. The report prepared by the investigator instructed by the insurer records that attempts were made to obtain a statement from Mr Ball, and that his daughter told the investigator he suffers from dementia and has no recollection of the accident. I am satisfied that Mr Ball has no recollection of the accident and does not know why it occurred. For that reason, I reject the insurer’s submission that if the accident was caused by a medical episode or Mr Sheeran falling asleep Mr Ball would have said so when he was interviewed by police.
The version of events provided by the driver of the Rav4 that is recorded in Senior Constable Callaghan’s notebook sheds no light on why Mr Sheeran’s vehicle crossed onto the opposite side of the road and collided with her vehicle.
The driver of the Hino truck, Mr Cooper, provided an account of the accident to Senior Constable Ah Tow at the scene. There is no reference in the statement recorded in the Senior Constable’s notebook to Mr Sheeran’s head being slumped, the position of Mr Sheeran in his vehicle, or why his vehicle crossed onto the opposite side of the road and collided with the truck Mr Cooper was driving.
However, in the narrative details contained in the police report, it is recorded that:
“…Resulting from the witness account of Grant COOPER, that as the Ford Falcon crossed on to the incorrect side of the road, with the head of SHEERAN slumped at the wheel, Investigators have concerns that either fatigue or a medical episode has occurred…”
The police report records that it was created and updated by Senior Constable Ah Tow. I am satisfied that the report was added to over time and had input from different sources. The report records that the narrative referred to above was created by Senior Constable Ah Tow on 28 December 2023 and that it is the “[n]arrative of LSCON[9] WILSON (Metropolitan Crash Investigation Unit, Traffic & Highway Patrol Command)”.
[9] Leading Senior Constable.
Evidence that Mr Sheeran was “slumped at the wheel” before he collided with the truck driven by Mr Cooper was both relevant and potentially significant in terms of identifying the cause of the accident. The absence of any reference to this evidence in the version recorded by Senior Constable Ah Tow in his notebook gives rise to a question as to the weight to be given to Leading Senior Constable Wilson’s narrative in the police report that the head of Mr Sheeran was slumped at the wheel.
In the transcript of his interview with the insurer’s investigator, Senior Constable Ah Tow stated that he thought that “Crash ” may have spoken to the witnesses. It is evident from the narrative created on 28 December 2023 that CIU investigators did speak to witnesses.
I consider it improbable that investigators from the CIU invented the account recorded by Leading Senior Constable Wilson in the police report. I also consider it improbable that the narrative of the accident created by the Leading Senior Constable did not accurately reflect what investigators had been told by Mr Cooper.
I infer that the investigating police thought Mr Cooper’s account was credible; that evidence informed concerns they held that “either fatigue or medical episode has occurred” and resulted in the CIU submitting a “Question of Fitness to Hold a Driver Licence”. The evidence of unsafe driving referred to in that document includes the following:
“…Witness accounts stated the head of SHEERAN was slumped over the wheel. Investigations are continuing as to whether SHEERAN suffered a medical episode.”
That reference was made by police in two separate documents to Mr Sheeran’s head being slumped at or over the wheel induces in my mind an actual sense of satisfaction that this account was given to police by Mr Cooper.
I find it is more probable than not that Mr Cooper provided an account of the accident to the CIU that included reference to Mr Sheeran’s vehicle crossing on to the incorrect side of the road, “with the head of [Mr Sheeran] slumped at the wheel”.
The insurer argues that the CCTV footage, including the frame-by-frame stills, is inconsistent with Mr Cooper’s evidence. I have watched the footage on multiple occasions and have reviewed that footage frame by frame.
Having reminded myself of the limitations of CCTV footage and photographic evidence, and the caution that must be employed with respect to evidence of this nature, I am satisfied the footage is of sufficient quality to support a finding that Mr Sheeran was not slumped forward in a position proximate to or over the steering wheel. The footage is not, however, of sufficient quality to enable a finding to be made with respect to the position of Mr Sheeran’s head in the cabin of the vehicle.
I am not satisfied that the footage establishes, on the probabilities, that Mr Sheeran’s head was not slumped forward.
Mr Cooper was driving a Hino truck. The photographs of the truck satisfy me that his position in the cabin was elevated. He saw Mr Sheeran’s vehicle cross over onto his side on the road and the Rav4 veer to the left and watch the vehicle proceed towards his truck. Although I am not satisfied that Mr Sheeran was slumped over the wheel, I find it more probable than not that Mr Cooper saw Mr Sheeran’s head slumped when his vehicle crossed to the incorrect side of the road.
There is no medical evidence before the Commission that provides an explanation for what transpired. I accept Mr Sheeran’s evidence that prior to the accident he had never experienced a medical episode or fallen asleep while driving. I also accept his evidence that he takes the medication he has been prescribed.
Senior Constable Ah Tow is a very experienced police officer. He told the insurer’s investigator that during the course of his “thirteen-plus” years of police service he had attended “potentially close to 50 – 50 or more” motor vehicle collisions. The Senior Constable was on the scene very soon after the collision. He spoke to Mr Cooper at the scene. I infer that he agreed with the matters recorded in the narrative contained in the police report and that he, along with other investigating officers that included members of the CIU, thought the collision was a result of a “possible medical episode”. Members of the CIU specialise in investigating motor vehicle accidents. Because of their concerns that either fatigue or a medical episode had occurred, CIU investigators submitted the “Question of Fitness to Hold a Driver Licence”.
I give weight to the evidence that Mr Sheeran’s head was slumped when his vehicle crossed to the incorrect side of the road. I also give weight to the opinion of police that the accident was possibly a result of a “medical episode”. I am satisfied that it is possible the accident was caused by a medical episode. I am also satisfied it is possible that the accident was caused by Mr Sheeran falling asleep.
WAS THE ACCIDENT CAUSED BY THE FAULT OF MR SHEERAN?
Whether the accident was caused by the fault of Mr Sheeran is a matter to be determined on the balance of probabilities. Factual findings that underpin the determination must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 367.
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 McDougall J (McColl and Bell JJA agreeing) addressed the approach that should be adopted in the resolution of disputed questions of fact. At [55] his Honour summarised the position as follows:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”[10]
[10] McDougall J’s summary of the position has been endorsed in subsequent Court of Appeal decisions including Curtis v Harden Shire Council [2014] NSWCA 314 and Chen v State of New South Wales (No 2) [2016] NSWCA 292.
The insurer argues that, by application of an inferential reasoning process (res ipsa loquitor), in circumstances where Mr Sheeran’s vehicle crossed over double white lines into the oncoming lane and collided with two vehicles, it should be inferred that he failed to exercise reasonable care, and that the accident was caused wholly by his fault. There is no question the insurer is entitled to rely on res ipsa loquitur: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909.
As Schmidt AJ explained in Richards:
“[102]While the burden of proof does not alter, the doctrine may permit negligence to be inferred from a fact which is unexplained, in this case, as the member found, what caused Mrs Richards to drive into oncoming traffic as she did. As explained in Schellenberg [Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18] at [73], when a car runs off the road, that fact alone and unexplained, provides some evidence of negligence. So, it must logically follow, does a car crossing the road and hitting an oncoming vehicle, if unexplained.
[103]Whether negligence is proven in a particular case still, however, depends on how clearly and convincingly the unexplained fact speaks of negligence in the particular circumstances: Anchor Products Limited v Hedges (1966) 115 CLR 493; [1966] HCA 70 at 500. This is what the member had to consider in this case.
[104]The application of the doctrine to circumstantial facts, where direct evidence of negligence is lacking, may call for explanation or rebuttal. But all of the circumstances and evidence must still be taken into account and considered as a whole, when arriving at a conclusion that there was negligence: Schellenberg at [24].
[105]Further, as there discussed at [25], res ipsa loquitur may be relied on even though particular acts or omissions of negligence are alleged, provided that the tribunal of fact concludes that:
“1. there is an "absence of explanation" of the occurrence that caused the injury;
2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and
3. the instrument or agency that caused the injury was under the control of the defendant.”
The insurer relies on Richards (No 2), in particular paragraphs [208] – [213] which address the operation of res ipsa loquitor and the application of the doctrine to the facts as found in that case. Richards (No 2) turned on its own facts, as must this case.
In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Gleeson CJ and McHugh J cited with approval the following statement by the Supreme Court of the United States in Sweeny v Erving 228 US 233 at 240 (1913):
“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.”
The accident occurred during the day. The weather was fine, visibility was good, and the road was dry. There was no hazard on the roadway, and the road was not contaminated with water, oil, or other substance. Mr Sheeran was familiar with the area, having driven the same route prior to the accident “on quite a few occasions”. He was wearing a seatbelt. Speed was not a factor, nor was alcohol or illegal drugs. There was no defect in his vehicle.
Mr Sheeran’s vehicle crossed over double white lines onto the opposite side of Scenic Drive and collided with two vehicles. The accident was not caused by the fault of the other drivers, Mr Cooper and Ms Robertson.
I am satisfied that what occurred was sufficiently unusual to raise a possibility that the course of Mr Sheeran’s vehicle could be accounted for by some failure in due care on his part and was possibly consistent with him having failed to pay attention to his driving shortly before the collision.
However, having considered the evidence as a whole, I do not feel an actual sense of persuasion that Mr Sheeran’s vehicle crossing over into the oncoming lane and colliding with the Rav4 and the Hino truck was a result of him failing to exercise reasonable skill and care in the driving of his vehicle. While possible, I am not satisfied it is more probable than not. There are other explanations for what occurred that are equally as likely and are supported by logically probative evidence.
The absence of medical evidence that explains what occurred does not exclude the possibility that Mr Sheeran experienced a medical episode. There is evidence, to which I have given weight, that Mr Sheeran’s head was slumped when his vehicle crossed to the incorrect side of the road. Investigating police considered it possible the accident was caused by a medical episode. I am satisfied it is possible the accident was caused by a medical episode.
There is no evidence that Mr Sheeran had experienced a medical episode prior to the day of the accident. He was taking the medication he had been prescribed. If Mr Sheeran did experience a medical episode, I am not satisfied on the evidence before me that it came about as a result of him failing to exercise reasonable care.
It is also possible that Mr Sheeran had a micro-sleep. When he provided his version of the accident to police he said he thought “it must have been a nanny nap”. I have earlier found that Mr Sheeran does not recall why his vehicle crossed over double white lines onto the opposite side of Scenic Drive and collide with two oncoming vehicles. None the less, given the evidence that his head was slumped, that he had a micro-sleep is a possible explanation for the accident.
Depending on the circumstances in which it occurred, having a micro-sleep may bespeak a failure to exercise reasonable care. The insurer’s position in oral submissions was that if Mr Sheeran had a micro-sleep, that may be evidence of a failure to take reasonable care on his part if he experienced signs of tiredness prior to falling asleep. There is no evidence that he was exhibiting signs of tiredness prior to the accident.
DETERMINATION
Having weighed the evidence I am not satisfied that the cause of Mr Sheeran’s vehicle crossing over into the oncoming lane and colliding with the vehicles driven by Mr Cooper and Ms Robertson has been established on the balance of probabilities.
I am not satisfied it is more probable than not that the accident was caused by Mr Sheeran’s failure to exercise reasonable care.
It follows that for the purposes of s 3.28 of the MAI Act the accident was not caused wholly or mostly by the fault of Mr Sheeran.
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