Smith & Thorpe Regd v Cigna Insurance Asia Pacific Ltd No. Scciv-01-869

SMITH & THORPE REGD v CIGNA INSURANCE ASIA PACIFIC LTD
[2001] SASC 363
Full Court: Mullighan, Wicks and Martin JJ

MULLIGHAN J I agree that the appeal should be allowed for the reasons given by Martin J. I also agree with the order which he proposes and that judgment should be entered for the appellants.
WICKS J I agree with the orders proposed by Martin J and his reasons for making these orders.
MARTIN J On 30 June 1996 the respondent issued a Personal Accident/Sickness Insurance Policy (“the policy”) to the appellant. The policy provided for payment of $150 000 to the appellant upon the death of any employee of the appellant. On 30 May 1997, Mr Vivian Charles Smith (“the deceased”) died as a result of injuries sustained in a motor vehicle accident. The deceased was an employee of the appellant and an insured person pursuant to the policy. Relying upon an exclusion clause, the respondent denied liability to pay any amount to the appellant. A District Court Judge dismissed the appellant’s claim for payment of $150 000 pursuant to the policy. The appellant appeals against that decision.
The learned trial Judge found in favour of the respondent on the basis that the respondent had established on the balance of probabilities that an exclusion clause in the policy had been satisfied. The relevant part of the exclusion clause was as follows:
“Exclusions
We shall not be liable in respect of any loss, damage, Injury or Sickness resulting from:-
“…
2.An intentional self-injury or attempt thereat, suicide or any criminal act committed by an Insured Person. …”
The deceased was a passenger in the motor vehicle involved in the road accident. The trial Judge was satisfied that the driver of the vehicle, Ms Cindy Walsh, was guilty of the indictable offence of Causing Death by Dangerous Driving contrary to s 19A of the Criminal Law Consolidation Act 1935 (“the CLCA”). His Honour was also satisfied that the deceased was guilty of aiding and abetting Ms Walsh in the commission of the indictable offence: s 267 of the CLCA. On that basis his Honour found that cl 2 of the exclusion clauses applied because his death had “resulted from” a “criminal act” committed by the deceased.
The deceased was aged 16 years. He held a provisional driving licence. He lived with his parents on a rural property near Meadows and had the general use of two vehicles owned by his parents or by the appellant partnership of which his parents were members. He was a reasonably experienced driver of motor vehicles.
Ms Walsh was aged 15 years. She and the deceased were close friends. In the few months prior to 30 May 1997, the deceased had been teaching Ms Walsh to drive. Many of the lessons had been on the appellant’s private property, but on a number of occasions Ms Walsh, with the deceased accompanying her, had driven one of the motor vehicles on public roads in the Macclesfield/Meadows area. The trial Judge found that by 30 May 1997 Ms Walsh had become a “moderately proficient driver”.
During the afternoon of 30 May 1997, a number of young people gathered at the deceased’s home including the deceased, Ms Walsh, Mr Joshua Fieg and Mr Craig Semple. The trial Judge found that during the afternoon and early evening the deceased, Ms Walsh and Mr Fieg each consumed alcoholic cider and smoked marijuana.
At about 9 pm some of the group decided to visit a friend in Meadows. Ms Walsh got into the driver’s seat of one of the appellant’s vehicles, a 1999 Mitsubishi Galant sedan. There was no evidence as to how Ms Walsh came to drive, but the trial Judge inferred that she obtained the ignition key “from the deceased or with his consent”. The deceased got into the front passenger seat and Mr Fieg into the rear seat. Mr Semple remained at the deceased’s house. Ms Walsh drove to the outskirts of Meadows where she stopped the vehicle and changed places with the deceased in order to avoid the risk of police seeing her driving the Galant in the township of Meadows. The deceased drove the vehicle through Meadows to the home of the friend, Ms Tabitha Stephens. The group remained at the home of Ms Stephens for about 10 to 15 minutes. While at that home the deceased fell asleep in a chair. The three then left Ms Stephens intending to travel in the Galant to visit other friends who lived near Macclesfield.
The accident occurred on the way to Macclesfield a short distance east of the intersection of Greenhills Road, Quarry Road and the Macclesfield to Meadows Road. Ms Walsh was driving the Galant sedan in an easterly direction along Greenhills Road. The road surface was bitumen and the general speed limit in the vicinity was 100 k/ph. It was dark and the trial Judge assumed that the headlights of the Galant were operating and on high beam. There was no artificial lighting in the vicinity of the intersection. No other traffic was in the area.
About 500 metres west of the intersection the Galant negotiated a sharp bend. There was no evidence of the speed at which the bend was negotiated. The trial Judge found that it was probably negotiated at about 50 k/ph which was the maximum safe speed. Thereafter Greenhills Road is straight leading up to the intersection, first traversing a reasonably sharp downhill incline before gradually ascending to a crest at the intersection. The road then descends immediately to the east of the intersection.
The intersection for east/west traffic is not conventional. The northern border of the bitumen of Greenhills Road immediately to the west of the intersection is not quite aligned with the corresponding northern border of the bitumen immediately to the east of the intersection, but is slightly further to the north. As a consequence, a vehicle travelling from west to east through the intersection is required to veer slightly to its left in order to place itself on the left-hand side of the road immediately to the east of the intersection.
The Galant had right of way to proceed straight through the intersection. However, there were a number of substantial trees on both sides of Greenhills Road which impeded a clear view of north/south traffic as the Galant approached the intersection. The trial Judge found that a prudent driver approaching the intersection would be expected to keep a careful lookout for north/south traffic which might not comply with the give-way signs, as well as paying attention to what lay ahead immediately over the crest in the intersection. His Honour also found that while Ms Walsh would have been through the intersection on numerous occasions as a passenger, it was unlikely that she had previously travelled through it as a driver on many occasions and probably not at all as a driver approaching along Greenhills Road from the west. The deceased was very familiar with the intersection.
Expert evidence was led to establish the speed of the Galant immediately before the accident. On the basis of that evidence, the trial Judge found that, after negotiating the bend 500 metres to the west of the intersection at about 50 k/ph, the Galant substantially accelerated up the incline and passed through the intersection “somewhere in the range of 106-114 k/ph”. His Honour also found that at about 50 metres east of the intersection the right-side tyres of the Galant were substantially on the wrong side of the centreline of the road. At that point the vehicle began to yaw to its left, passed over the northern edge of the bitumen, overturned and hit a stobie pole. His Honour inferred that Ms Walsh lost control of the car at high speed in attempting to bring it back onto its correct side of the road. These findings were not challenged.
As mentioned, the trial Judge found that Ms Walsh had committed the indictable offence of Causing Death by Dangerous Driving (“the principal offence”): s 19A of the CLCA. His Honour took into account the legal restrictions existing at the time prohibiting persons of Ms Walsh’s age from driving on public roads. He also had regard to the restrictions that would have applied if Ms Walsh had been the holder of a learner’s permit. Although unable to make any definite findings about the degree to which Ms Walsh was affected by alcohol or marijuana nor as to the extent to which the combined effect of those drugs impaired her ability to drive, his Honour concluded that Ms Walsh was “noticeably intoxicated to some degree and that intoxication played a role”. In the following passages his Honour expressed his ultimate conclusions as to the relevance of intoxication and the essential basis upon which he found the offence proven:
“26. …There is no doubt that Walsh lost control of the Galant almost immediately after it had crossed the intersection. One possible cause of that is that her faculties were impaired to some extent by intoxication. Quite apart from other considerations of excessive speed and inexperience it is reasonable to conclude here that as she came over the crest Walsh was unable to appreciate the need to make a slight veer to the left and to steer to accomplish it, because her faculties were impaired by intoxication from marijuana and/or alcohol. It is also reasonable to conclude that a release of her inhibitions through such intoxication caused her to drive into the intersection at a much greater speed than she would have done if she had not been so intoxicated. The possibility of her being intoxicated, as raised on the other evidence and discussed above, is reinforced by a deduction from what actually happened that intoxication played a role in her not being able to drive safely.
27. Here Walsh approached and entered the intersection at a speed substantially in excess of that allowed for a learner driver, and in excess of the legal limit for the area. The fact that she had right of way over any north/south traffic was no excuse for this speed. It was dark which exacerbated the danger. As she approached the intersection she could not see the configuration of the road ahead of her on the other side of the crest. It is likely that she was surprised as she crossed the crest to find herself partly on the wrong side of the road to the east of the intersection. She was driving at such a high speed that with her limited degrees of competence and experience, and in her state of intoxication, she could not safely manoeuvre the car back onto its correct side of the Macclesfield/Meadows Road. It is no surprise that in those circumstances she lost control of the car and that the accident occurred. I find it proved on the balance of probabilities under the Briginshaw test (above) that her manner of driving in entering, and going through, the intersection was both at a speed, and in a manner, dangerous to the public. It was a gross departure from the proper standards of care and constituted a substantial danger to her passengers and other road users. It was not merely a lack of due care or attention by her.”
As to the deceased aiding and abetting the commission of the principal offence by Ms Walsh, the basis of the trial Judge’s reasoning is found in the following passages:
“30. I find it proved on the requisite civil onus that the deceased did aid or abet Walsh’s driving of the Galant at a speed, or in a manner, dangerous to the public, as I have found above, for the following reasons:
(a)The deceased provided the Galant to Walsh so that she could drive it on the night in question. His father had previously instructed him not to allow her to drive cars on a public road, but the deceased had not complied with this direction. At any time the deceased could have immediately terminated the authority which he had given to Walsh to drive the Galant, but he did not do so. He actively encouraged her driving of it.
(b)The deceased, even though he was not legally qualified to do so, took upon himself the role of the driving instructor for Walsh. He himself had shortly beforehand held a learner’s permit and must have been well aware of the roles played by instructors and what is referred to as a “qualified passenger” in Part 3 of the MVA. There is no evidence that he gave any instruction or directions to Walsh about her driving on that night. However, she had passed beyond the stage of needing basic instruction on driving, but she did need some general supervision in dealing with driving situations which were beyond her experience and competence such as traversing an unusual intersection. Although there is no evidence about which of Walsh and the deceased initiated the changing of the driver at the Pound, it is likely it was required by the deceased, albeit with the concurrence of Walsh, as part of his overall control of her driving of the Galant on that night. Likewise the previous instructions by the deceased to Walsh and Fieg that they were to say that he had been driving the car if anything happened was part of him taking responsibility for the driving of Walsh including for any accidents which might occur.
(c)The deceased was familiar with driving west through the intersection and with its peculiar nature which only became apparent as the crest was almost reached. It is likely that he appreciated that it was dangerous and foolhardy for a driver of Walsh’s limited experience and competence, and in her noticeable state of at least minor intoxication, to enter that intersection at night at a speed of at least 106kph. If he had told her to slow down as she accelerated towards the intersection, it is probable that she would have done so.
(d)The deceased’s presence alongside Walsh, combined with his failure to warn her or instruct her to reduce her speed, encouraged Walsh to drive into the intersection at a speed, or in a manner, dangerous to the public.”
…
“…In view of the relationship between the deceased and Walsh under which Walsh drove the Galant it is likely that the failure of the deceased to say or do anything as the car approached the intersection at an increasingly excessive speed was sufficient encouragement by the deceased to Walsh of her dangerous driving to make him an aider or abetter of her offence of dangerous driving.
31. In order to have aided or abetted an offence it must be proved that the deceased intentionally aided or abetted the offence knowing all of the essential elements which made what was done an offence, although in law he need not have known that it amounted objectively to dangerous driving or to an offence: Giorgianni v R (above). I find it proved on the requisite civil onus that the deceased had the necessary intention and knowledge to have aided or abetted Walsh’s offence of driving at a speed, or in a manner, dangerous to the public. There is no doubt that he was aware of her age, limited driving experience and that she did not hold a licence. He had been with her for many hours immediately prior to the accident, knew that she had consumed alcohol and marijuana and must have observed signs of at least minor intoxication. I have already found that as the Galant approached the intersection the deceased was awake. As the Galant accelerated towards the intersection it is likely he was aware of its excessive speed. It may be that his drowsiness and intoxication explain why he did not instruct Walsh to reduce her speed or the like, but that does not mean in law that he is not an aider or abetter of her offence.”
For present purposes I assume that the deceased could aid and abet the commission of the offence of causing his death by dangerous driving. Generally speaking, a person commits the offence of aiding and abetting if, with knowledge of the essential facts which constitute an offence, that person intentionally assists or encourages the doing of those things which comprise the offence: Giorgianni v The Queen (1985) 156 CLR 473 at 503-505. However, in order to commit the principal offence, it was not necessary that Ms Walsh intend to cause the death of the deceased. Similarly, in order to aid and abet the commission of the principal offence, the requisite intent and knowledge do not extend to the occurrence of the death which ensues upon the dangerous driving: Giorgianni at 503. In order to prove that the deceased aided and abetted the commission of the principal offence by Ms Walsh, therefore, the respondent bore the onus of establishing that the deceased aided and abetted Ms Walsh to drive in a manner or at a speed which was dangerous to the public (“driving dangerously”). The respondent undertook the task of establishing that the deceased possessed knowledge of all the essential facts which constituted the dangerous driving and that, with such knowledge, he intended to aid and abet the dangerous driving. It was not necessary, however, for the deceased to have appreciated that the driving amounted to the offence of driving dangerously.
The finding of the learned trial Judge as to the speed at which the Galant entered the intersection was critical to his conclusion that Ms Walsh was guilty of driving dangerously. Counsel for the respondent argued that it was open to his Honour to have concluded that the driving of Ms Walsh after leaving the premises of Ms Stephens was, objectively, driving dangerously because Ms Walsh was 15 years of age with very limited driving experience and was driving along a winding country road on a dark night while she and her “supervising driver” were affected by alcohol and/or marijuana. However, the extent to which Ms Walsh was affected by alcohol or marijuana or the combined effect of those drugs was unknown. She had driven from the deceased’s premises to the vicinity of Meadows and, for some distance, after leaving the home of Ms Stephens without incident. There is no suggestion in the evidence that her driving during those periods was other than competent. In those circumstances, in my opinion the evidence failed to establish that Ms Walsh was driving dangerously prior to the acceleration and entry into the intersection.
As the acceleration and speed at which the Galant entered the intersection was essential to the finding that Ms Walsh had driven dangerously, it was necessary for the respondent to prove that the deceased had knowledge in a general sense of the acceleration and speed at which the vehicle entered the intersection and that, with that knowledge, he both encouraged Ms Walsh in that manner of driving and intended to encourage her. The critical period in which the deceased had to acquire the knowledge, intend to encourage Ms Walsh and encourage her was a period in the order of 30 seconds during which the vehicle traversed the 500 metres from the sharp bend to the intersection.
There was no direct evidence as to what occurred between the sharp bend and the intersection. Ms Walsh declined to answer questions about the driving of the vehicle after the group left the home of Ms Stephens. Mr Fieg was a passenger in the motor vehicle, but his memory of the events was noticeably defective. He had consumed both alcohol and marijuana. Although he remembered the change in drivers prior to entering Meadows, he had no memory of visiting the home of Ms Stephens. He thought they “drove around Meadows somewhere”. Although he said he remembered the Galant traversing the sharp bend 500 metres to the west of the intersection, he said he had no idea of the vehicle’s speed and did not remember it accelerating. He had no memory of anything being said as the vehicle approached the intersection. The trial Judge expressed his conclusions about the reliability of Mr Fieg’s evidence as follows:-
“12. Fieg was not a particularly impressive witness. He had lied to the police on the crucial question of who was driving the car at the time of the accident. It is likely that he was significantly affected by marijuana and/or alcohol on the night in question and this has impaired his memory of relevant events. His failure to remember the visit to Stephens’ house indicated he had little recollection of the evening. I am only prepared to accept those parts of his evidence which are either consistent with other credible evidence or are inherently plausible. He was offered the opportunity to claim privilege against self-incrimination but he declined to do so.”

Against that background, counsel for the respondent acknowledged that in order to discharge the burden of proving the requisite knowledge and intent, the respondent was required to prove that the deceased was awake as the vehicle approached the intersection. The respondent relied upon the following findings of the trial Judge:
“19. I do not find that the deceased was asleep as the Galant approached the intersection. There is no direct evidence that he was asleep. While I do not place much weight on it, Fieg gave evidence that he was awake. Although the effect of the marijuana and the alcohol was to make him drowsy, that does not mean that he was therefore not conscious of what was going on in the car. The radio was on in the car which made it less likely that he would have been able to sleep. His failure to wear his seat belt suggests that he was not particularly alert at the time, but it does not mean that he was asleep.
…
31. … I have already found that as the Galant approached the intersection the deceased was awake. As the Galant accelerated towards the intersection it is likely he was aware of its excessive speed. It may be that his drowsiness and intoxication explained why he did not instruct Walsh to reduce her speed or the like, but that does not mean in law that he is not an aider or abetter of her offence.”
The only positive evidence that the deceased was awake was given by Mr Fieg:
“Q.Just prior to the accident, I’m talking about the last five minutes, was Vivian still awake.
A.Yes.”
The trial Judge said he did not place much weight on that particular evidence given by Mr Fieg. There was no evidence to support it. There was, however, reliable evidence that tended to suggest that the deceased may not have been fully conscious.
The accident occurred at about 9.45 pm. The deceased was pronounced dead at 11.05 pm. The trial Judge did not make any finding as to the precise time of death. He concluded it was some time after 9.45 pm and before 11.05 pm. At the time of his death the deceased had a blood alcohol reading of 0.02 gms of alcohol per 100 mls of blood. A forensic pathologist, Dr Ross James, expressed the view that there was no significance in the blood level and that view was accepted by the trial Judge.
As to the ingestion of the active ingredient of marijuana (“THC”), at the time of his death the deceased’s blood contained a level of 13.3 nanograms per millilitre of blood. The trial Judge drew the following conclusions as to the effects of marijuana:
“…I accept the opinion of Dr James that … the THC level was significant and would have had some intoxicating effect upon him [the deceased]. It made him drowsy and caused him to fall asleep at Stephens’ home. On the evidence which I accept it is impossible to make any more definite finding about the degree of the deceased’s intoxication except that it was significant, but not gross, and it did not prevent him from driving the Galant.”
Mr Semple declined to leave the deceased’s home. He said that the eyes of the other three were all probably a bit glassy. In his view the deceased was affected by alcohol or marijuana but “he wasn’t all that drunk at all really” (p 146).
Mr Fieg had observed the deceased effected by marijuana on previous occasions. He described the deceased as happy and, to that extent, affected by marijuana. Mr Fieg said that when the deceased took over driving near Meadows, he was happy and had red eyes. He described the deceased as a “little bit” affected by alcohol or marijuana. However, his driving was not adversely affected. Mr Fieg said the deceased was more affected by alcohol or marijuana than Ms Walsh.
Ms Walsh said that during the afternoon the deceased had consumed “a few” small bottles of alcoholic cider (pp 102-103). He also smoked marijuana. She said the deceased appeared to be “stoned” when they left to travel to Meadows (p 106).
Ms Stephens had seen the deceased affected by marijuana on previous occasions. She formed the view that he had been smoking marijuana. She said he was falling asleep in the chair. The group stayed for five to fifteen minutes. When they left she told the deceased that they should not be drink-driving and the deceased laughed.
Dr James provided a forensic science information bulletin concerning the effects of alcohol and cannabis. As to the level of THC, Dr James described five mgs in a cigarette as a small dose, ten mgs as a moderate dose and anything above twenty mgs as a high dose. He explained the process by which, following absorption of THC, the level of THC drops quite rapidly. Dr James said the effects of THC are subjective and, to some extent, are a function of the user’s experience together with the social settings and the expectations of the user (p 134). Red eyes have been found to be a reliable physical feature indicative of a level higher than five. The reddening of the eyes will continue for the duration of the psycho-active part of the cannabis (pp 133-134). Dr James expressed the view that drowsiness is compatible with the deceased’s red eyes and the reading of 13.3, particularly if the user is smoking alone. In a social setting smoking can result in the user being more talkative and garrulous. Dr James said it was usual after social usage of cannabis for the users to go off and “have a good sleep”. Mild confusion is common. Judgment may be impaired (p 135). Dr James also considered it was reasonable to conclude that, as a passenger, the deceased’s ability to perceive the state of intoxication of the driver would be impaired (p 137).
I am mindful of the constraints upon appellate courts when reviewing findings of fact made by trial judges: Devries v Australian National Railways Commission (1993) 177 CLR 472: Rosenberg v Percival (2001) 178 ALR 577. However, after consideration of the evidence and the reasoning of the trial Judge, I have reached the conclusion that his Honour’s finding that the deceased was awake as the vehicle accelerated toward the intersection cannot stand.
The approach of the trial Judge to the question whether the deceased was awake has caused me disquiet. Rather than considering whether the evidence proved that the deceased was awake, in par 19 cited earlier in these reasons his Honour approached the question from the point of view of whether he could find that the deceased was asleep. Having concluded that he did not find that the deceased was asleep, his Honour did not return to the issue until par 31 which is also cited. In the latter paragraph, his Honour said that he had “already found” that as the Galant approached the intersection the deceased was awake. There is no such positive finding earlier in his Honour’s reasons. It may be that his Honour was referring to par 19 in which he concluded that he could not find that the deceased was asleep. However, a conclusion by his Honour that he could not find that the deceased was asleep does not necessarily mean that the evidence supported the opposite conclusion that the deceased was awake.
The trial Judge did not identify the evidence upon which he relied to make a positive finding that the deceased was awake as the Galant approached the intersection. In considering whether he could find that the deceased was asleep, his Honour identified two items of evidence which he viewed as negating that suggestion. First, he referred to the evidence of Mr Fieg that in the last five minutes the deceased was awake. Secondly, his Honour spoke of the radio being on which he said made it less likely that the deceased would have been able to sleep. In my opinion, against the background of the evidence concerning the effects of marijuana and the deceased falling asleep at the home of Ms Stephens, those items of evidence were not capable of supporting a positive finding that the deceased was awake as the Galant approached the intersection.
I have mentioned a number of deficiencies in Mr Fieg’s evidence. The trial Judge said he did not place much weight upon Mr Fieg’s evidence that the deceased was awake. Speaking generally about Mr Fieg’s evidence, his Honour commented adversely upon Mr Fieg’s reliability and said he was only prepared to act upon those parts of Mr Fieg’s evidence which were either consistent with other credible evidence or were “inherently plausible”. Mr Fieg’s evidence that the deceased was awake in the last five minutes was not supported by other evidence. In view of Mr Fieg’s lack of memory about stopping at the home of Ms Stephens or about the journey from her residence to the scene of the accident, his evidence that the deceased was awake was not “inherently plausible”. In addition, the evidence was not specifically addressed to the critical period during which the Galant traversed the 500 metres from the sharp bend to the intersection. Having read the evidence of Mr Fieg, in my opinion his evidence about the events in the car was so deficient that it was incapable of supporting a conclusion on the balance of probabilities that the deceased was awake as the Galant approached the intersection.
As to the evidence concerning the radio, there was no evidence as to the volume of the radio. Nor was there evidence to suggest that the radio was likely to have kept the deceased awake. Bearing in mind the effects of marijuana to which I have referred and the deceased’s sleepiness at the home of Ms Stephens, in my view his Honour was in error in relying upon the fact that the radio was on as evidence supporting the view that the deceased would not have been able to sleep.
In my opinion, the respondent failed to discharge the burden of proving that the deceased was awake as the Galant approached the intersection. Weighed against the evidence tending to favour the view that the deceased was likely to be at least drowsy and inattentive, at best the evidence was incapable of supporting a conclusion one way or the other as to whether the deceased was awake or asleep. In those circumstances, the respondent failed to discharge the burden resting upon it.
As I have indicated, the approach of the trial Judge to this issue has caused me disquiet. Although his Honour correctly directed himself generally as to the burden of proof resting upon the respondent, when he came to the question of whether the deceased was awake his Honour approached the issue by considering whether he could find that the deceased was asleep. Having concluded that he could not make such a finding, his Honour then moved to a conclusion that the deceased was awake without identifying and analysing the evidence that supported such a positive conclusion. In my view, his Honour has slipped into reasoning that because he could not find that the deceased was asleep it necessarily followed that he was to find that the deceased was awake. His Honour did not correctly apply the burden of proof resting upon the respondent and failed to identify and analyse the evidence tending to both favour and negate a conclusion that the deceased was awake.
For these reasons, in my opinion the respondent failed to discharge the burden of proving that the deceased was awake as the Galant approached the intersection. In those circumstances, the respondent conceded that it would have failed to prove that the deceased possessed the requisite knowledge and intent required in order to aid and abet Ms Walsh in driving dangerously. It follows that the respondent failed to prove that the exclusion clause operated and that the appellant’s claim must succeed.
While it is not strictly necessary to consider what conclusions would follow if the Judge was justified in finding that the deceased was awake, having considered the evidence and in view of the submissions I have decided it is appropriate to indicate my views.
Even if the evidence was sufficient to support a positive finding that the deceased was awake as the Galant approached the intersection, it does not necessarily follow that the evidence could support conclusions that the deceased possessed the requisite knowledge and intention in the 30 seconds or so during which the vehicle accelerated towards and passed through the intersection. There was no direct evidence bearing upon these issues. There was no suggestion in the evidence that the deceased played a positive role in connection with the driving of Ms Walsh between Meadows and the intersection. Conclusions could only be drawn, therefore, after weighing the circumstantial evidence tending both for and against positive conclusions in respect of the issues of knowledge, intention to encourage and encouragement.
As to knowledge of the Galant’s acceleration and, in a general sense, of its speed as it approached the intersection, the trial Judge did not specifically identify the evidence which supported a conclusion that the deceased possessed such knowledge. His Honour did not identify any evidence from which a conclusion could be drawn that the deceased was paying attention to the manner of driving as the vehicle approached the intersection. He simply expressed the view that, as the Galant accelerated towards the intersection, it was “likely” that the deceased “was aware of its excessive speed”.
There is no dispute that the deceased was significantly affected by marijuana and had been falling asleep in a chair a short time before the accident. When he took up his position in the passenger’s seat, the deceased did not use the seat belt. The effects of marijuana were such that the deceased was likely to continue to be drowsy. The evidence of Dr James established that the deceased’s appreciation of what was happening about him would have been impaired. There is no suggestion in the evidence that the deceased behaved in a manner which suggested he was paying attention to the driving of Ms Walsh or that there was any feature of Ms Walsh’s driving prior to the intersection which would have been likely to attract the deceased’s attention. The acceleration of the Galant downhill and up the slope leading to the intersection from about 50 kilometres per hour to a speed in the vicinity of the general speed limit was not such as was likely to attract the deceased’s attention in his state of intoxication. Indeed, the trial Judge acknowledged that the deceased’s drowsiness and intoxication might explain why he did not instruct Ms Walsh to reduce her speed.
The evidence to which I have referred tended against a conclusion that the deceased possessed the requisite knowledge. The trial Judge did not address the impact of that evidence upon the question as to whether the deceased was likely to have been paying sufficient attention to the manner of driving to have gained the requisite knowledge as the vehicle accelerated and approached the intersection.
In seeking to support the trial Judge’s conclusion as to the deceased’s knowledge of the manner of driving, counsel for the respondent relied heavily upon the previous relationship between the deceased as instructor and Ms Walsh as pupil. He argued that the relationship supported a conclusion that the deceased was likely to have been continuing to exercise control and, therefore, to have been aware of the manner of Ms Walsh’s driving as the vehicle approached the intersection. It appears that a similar process of reasoning led the trial Judge to his conclusion that the deceased possessed the requisite knowledge required to aid and abet Ms Walsh’s dangerous driving.
In my opinion, such reasoning is fraught with danger. The relationship between the deceased and Ms Walsh was far removed from that of a formal instructor/pupil relationship or an adult/teenager relationship. They were aged 16 and 15 years respectively. They had been friends for a long time. In an informal manner, the deceased had given driving instructions to Ms Walsh from time to time while she drove on private property and on country roads in the vicinity of the private property. By way of stark contrast, the driving in question occurred at night in a social setting against the background of the ingestion by both the deceased and Ms Walsh of alcohol and/or marijuana. This was not an occasion for the giving of any instruction to Ms Walsh concerning her driving. The trial Judge found that Ms Walsh “had passed beyond the stage of needing basic instruction in driving” and that she had become a “moderately proficient driver”. Apart from the changing of drivers, there was no evidence to suggest that the deceased intended to exercise any form of control or supervision over the driving of Ms Walsh. There was no evidence that the deceased made any remark or took any positive action with respect to the driving of Ms Walsh at any time while Ms Walsh was driving the vehicle. Further, there was no evidence to suggest that, prior to entry into the intersection, there was any feature of the driving of Ms Walsh which might have given the deceased cause for concern or suggested to him that there was any need for instruction or supervision.
The trial Judge referred to the changing of drivers before the vehicle entered the township of Meadows. Acknowledging that there was no evidence about who initiated the changing of driver, his Honour nevertheless concluded that it was likely that the change was required by the deceased “as part of his overall control of her driving of the Galant on that night”. However, there was no evidence that the deceased undertook “overall control” of Ms Walsh’s driving that evening. Mr Fieg gave evidence that both Ms Walsh and the deceased wanted the change of driver to occur before entering Meadows. Ms Walsh may have initiated the change because she wanted to avoid getting into trouble. In my opinion, his Honour drew a conclusion in this regard that was not supported by the evidence.
In this context, the trial Judge also referred to previous instructions by the deceased to Ms Walsh and Mr Fieg that if anything happened while Ms Walsh was driving they were to say that the deceased had been driving the vehicle. Mr Fieg gave evidence that this instruction had been given on several occasions prior to the night in question. The fact that those instructions were given on prior occasions was not an indication that, during the evening in question, the deceased was exercising some form of supervision or control over the driving of Ms Walsh.
The evidence to which I have referred concerning these issues was not contentious. The findings were not dependent upon the trial Judge’s views as to the credibility of the various witnesses. This court is in as good a position as the trial Judge to assess the evidence and draw conclusions from it. For the reasons I have given, in my opinion the totality of the evidence was not capable of supporting a finding that the accused was likely to be paying attention to the manner of Ms Walsh’s driving and the speed of the vehicle sufficiently to gain the knowledge required to aid and abet her dangerous driving. The circumstances in which the driving occurred and the intoxication and sleepiness of the deceased weighed strongly against such a conclusion. At its highest, the evidence was such that the respondent failed to discharge the burden resting upon it to prove that the deceased was paying attention and gained the requisite knowledge as the vehicle approached the intersection. For these reasons, even if the evidence established that the deceased was awake, the respondent failed to prove that he was guilty of a criminal act such that the exclusion applied.
Upon the assumption that knowledge was not established, it follows that the respondent also failed to prove the requisite intention to encourage. Further, even if the evidence was capable of supporting a conclusion that the deceased possessed the requisite knowledge of acceleration and, in a general sense, of the speed of the vehicle as it approached the intersection, in my opinion the mere possession of such knowledge was not a sufficient basis from which to conclude that the deceased intended to encourage Ms Walsh in her dangerous driving. The trial Judge did not identify the evidence upon which he relied in coming to the conclusion that the deceased intended to encourage Ms Walsh in her dangerous driving as the vehicle approached and entered the intersection. Against the background of the evidence to which I have referred, including the circumstances in which the driving occurred and the likely impairment of the deceased’s faculties, and in the absence of any evidence that the deceased positively encouraged the manner of driving, in my opinion the deceased’s silence as the vehicle approached the intersection is not a sufficient basis from which to conclude that he intended to encourage the manner of driving of which he had knowledge. In my view, even if it was established that the deceased possessed the necessary knowledge, the respondent failed to prove that the deceased possessed the requisite intention.

For these reasons, in my opinion the respondent failed to prove on the balance of probabilities that the deceased aided and abetted the dangerous driving of Ms Walsh. In those circumstances it is unnecessary to determine whether such aiding and abetting would amount to a “criminal act” for the purposes of the exclusion clause. Similarly, it is unnecessary to determine whether, on the assumption that aiding and abetting was such a criminal act, for the purposes of the policy the death of the deceased resulted from that criminal act.
In my opinion the appeal should be allowed and the order of the trial Judge should be set aside. Judgment should be entered in favour of the appellant.

[2001] SASC 363

31 October 2001