Virdi v Insurance Manufacturers of Australia Pty Ltd
[2018] VCC 69
•14 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-05063
| KAMALDEEP KAUR VIRDI | First Plaintiff |
| and | |
| MEHER TRAILER PRODUCTS PTY LTD (ACN 101 756 549) | Second Plaintiff |
| v | |
| INSURANCE MANUFACTURERS OF AUSTRALIA PTY LTD (ACN 004 208 084) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30, 31 January and 1, 5 February 2018 | |
DATE OF JUDGMENT: | 14 February 2018 | |
CASE MAY BE CITED AS: | Virdi & Anor v Insurance Manufacturers of Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 69 | |
REASONS FOR JUDGMENT
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Subject:Motor vehicle insurance policy
Catchwords: Motor vehicle insurance policy; whether claim by insured fraudulent; whether driver of vehicle engaged in “wilful or reckless act”.
Legislation Cited: Sections 54, 56 Insurance Contracts Act 1984; s140 Evidence Act 2008
Cases Cited:To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279; Briginshaw v Briginshaw (1938) 60 CLR 336; Albion Insurance Company Limited v Body Corporate Strata Plan No 4303 [1983] 1 VR 339; Fraser v B M Furman (Productions) Ltd [1967] 1 WLR 898
Judgment:1. Judgment for the Defendant. 2. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G. McDermott | ADH Legal Pty Ltd |
| For the Defendant | Mr A. Donald | Hall & Wilcox |
HIS HONOUR:
Background
1 According to Mrs Virdi, the first plaintiff in this proceeding, around 7.00pm or 7.30pm on Good Friday, 25 March 2016, she and her son, Meher Virdi (“Meher”), decided to drive from their residence in Wheelers Hill to Lorne, to the south-west of Melbourne located on the Great Ocean Road, to visit the holiday house of their friends, the Goenka family, in Hall Street, Lorne. (Transcript (“T”) 19, Line(s) (“L”) 1-19)
2 Mr Virdi was overseas. Mrs Virdi left her daughter, Rani, who was 14 years of age at the time, at home. (Ibid, L22-31) She was to be accompanied by Meher, who was aged 21 years at the time. (T20, L1-8)
3 They travelled to Lorne in the plaintiffs’ Maserati motor car registration number ACU 067. (Ibid, L11-13) They would follow a Ferrari motor vehicle driven by Mr Goenka junior (Udhav), a friend of Meher, who was staying with his mother at a residence in Balwyn. (Ibid, 17-28)
4 The Virdis had purchased the Maserati about 15 months prior to this date. (T30, L30-31) The Virdis had a number of prestige vehicles, including a Porsche Boxster, a high performance vehicle which Mrs Virdi had driven for a number of years. (T31) They also owned a C-Class Mercedes Benz. (T31-32, L31-1) Mrs Virdi was “the primary driver” of the Maserati in the period October 2014 to March 2016. (T32, L8-11) According to Mrs Virdi “it’s a very powerful car, but it makes you feel very comfortable on the road”. (Ibid, L21-22)
5 Her daughter, Rani, had refused to accompany her mother and brother because Easter in Lorne was apparently to be “a boys’ weekend” or “a boys’ trip”. (T19, L29-31, T36, L2-5)
6 The Virdis had known Mr Dipendra Goenka (the father of Udhav) for 10 years and had been on holiday with his family, both in Australia and overseas. (T36, L29 – T37, L9)
7 Mrs Virdi’s purpose in taking this trip was to spend time with her son, Meher. (T47, L6-8) They stopped at Laverton to buy petrol. (T21, L29-30) Mrs Virdi made few observations on the journey. She was unclear in her evidence as to what towns and localities she travelled through that evening. She said, “I will not tell you exactly what did we see because … I was just following the car [viz the Ferrari] and talking to my son”. (T47, L13-15) She said she occasionally lost contact with the Ferrari “only on windy roads”, “but most of the time we were – I was following the car”. (Ibid, L24-26)
8 The Goenka residence is at 41 Hall Street, Lorne, which is on the Melbourne side of Lorne. (T48, L20 – T49, L11) Despite this, the Maserati, following the Ferrari, drove through Lorne and drove on to the south-west along the Great Ocean Road.
9 Mr Udhav Goenka, who was driving the Ferrari and providing the lead to Mrs Virdi and her son to the Goenka’s Lorne holiday house, said that he decided to drive on along the Great Ocean Road past Lorne because “it was a nice night”. He thought the party might travel to a “lookout point near … Wye River”. He was unable to identify this “lookout point”. (T227-8)
10 According to the phone transcript of an insurance claim lodged by Mrs Virdi with the defendant on 27 March, she was driving the Maserati between Lorne and Apollo Bay on the Great Ocean Road, which she described as “windy”. (Court Book (“CB”) 265, L18) She said, “one car was coming other side”. (Ibid) “to protect myself, I – I moved towards the sign [scil side]”. (Ibid, L20-21)
11 Mrs Virdi continued, “I tried to slam the brake, and you know, it just could not – I lost control over the car”. (Ibid, L26-28) She continued, “And then it’s hit the side barriers”. (Ibid, L30) Mrs Virdi continued, “and the airbag came out, and my son got injured in his arm”. (CB 266, L3-4)
12 The call centre operator summarised the narrative as follows, “So you were travelling when an oncoming vehicle had come into your lane, so you swerved to miss that vehicle, hit gravel and lost control into the barrier”. Mrs Virdi agreed with the summary. (Ibid, L28-31)
13 Mrs Virdi placed this incident on the Great Ocean Road, she guessed, “15 kilometres past Lorne”. (CB 268, L1-2) She said the other car just drove on and disappeared into the night. Mrs Virdi said when the Maserati came to a stop, “It was on the road, we could get off the car easily”. (T27, L8)
14 Meher said that the car was mostly occupying the Apollo Bay-bound lane of the Great Ocean Road but the front right hand portion protruded into the oncoming Melbourne-bound lane. (T307, L27-31) Meher said that he tried to telephone his friend, Mr Udhav Goenka, but his mobile phone “had no reception”. Nevertheless, the Ferrari did return to the scene without prompting. (T309, L14-21) Meher urged his friend, Udhav, “just get mum home”. According to her son, “she was visibly shaken”. (T310, L2-3) Meher was then left alone with the Ferrari driving off towards Lorne. (Ibid, 7-10) Then, a passing motorist acting as a “good Samaritan”, stopped to enquire and render assistance. His mobile phone was operative and Meher telephoned “13 RACV” to summon assistance. (T310-311)
15 Presumably, as a result of this call, a Mr Spizzica, who has been providing roadside service and tow truck service in Lorne for 28 years, was called to attend the accident scene. (T170) In accordance with more modern practice, the “towing” service was provided by dragging the disabled vehicle onto the tilting tray of the recovery vehicle and carrying it on that tray back to the depot. (Ibid)
16 Mr Spizzica did not maintain either a hardcopy or computer log recording precise times for callout. (T171, L26-31) According to Mr Spizzica, he travelled towards Apollo Bay along the Great Ocean Road:
“As I got to the Mount Defiance Lookout there was a vehicle parked there with hazard lights on and parkers on and somebody was just slowing, you know, just making me aware that there was [an] accident, so they were slowing the traffic down. So I went around that one and – and soon came on – across the Maserati on the middle of the – sorry, on the middle of the lane heading towards Apollo Bay. So I went around the Maserati and parked in front of it to be able to tow the vehicle up.” (T172, L11-20)
17 Mr Spizzica believed that the vehicle providing the warning was about 50 metres on the Lorne side of the disabled Maserati. (Ibid, L25-29) Mr Spizzica said that “there were two young guys there at the time”. (T173, L14-15)
18 Mr Dipendra Goenka, the father of Udhav and, presumably, the owner of the Hall Street, Lorne property, said that when his son brought Mrs Virdi to Hall Street that evening she “looked very shaken”. (T246, L20) His son asked Mr Dipendra Goenka to take him back to the accident scene. (Ibid, L24) He returned Udhav to the accident scene. (Ibid, L30)
19 Mr Dipendra Goenka did not make any detailed observations of the accident scene. He said it was dark and he did not alight from his car, merely returning to Hall Street after dropping his son off. It took 15-20 minutes for him to travel each way. (T247, L1-9) On his return to Hall Street, his partner, Carolyn, and his younger son, Tarun, were sleeping upstairs. (Ibid, L10-13)
20 Mr Dipendra Goenka offered to put Mrs Virdi up for the night but she asked to be taken home to her residence in Wheelers Hill immediately. He did not relish the long drive so late at night, but felt obliged to comply. (T247, L19-31)
21 Back at the crash scene, Mr Spizzica and the two young men encountered problems removing the Maserati. He said, “We couldn’t get the handbrake off and we couldn’t get it out of park”. (T173, L25-26) They consulted the owner’s manual and were directed to a button or switch in the floor below the driver’s seat which caused them to manipulate the driver’s seat. Eventually, however, they realised that the manual was written for a left hand drive version of the Maserati and the switch or button was located below the passenger seat. Once this discovery was made, the car could be unlocked and dragged onto the truck. (T174)
22 Mr Spizzica said he drove on to the next turning spot at Jamieson River. He did a U-turn and travelled back to Lorne, first dropping the two young men at Hall Street and then returning to his depot. (T175)
23 A few days later, Mr Spizzica carried the vehicle to Luxury Auto Body in Hoddle Street, Clifton Hill, which he did at the request of “the insurance company”. (T177, L23-27) This was the repairer nominated by Mrs Virdi when she lodged her claim with the defendant by telephone on 27 March. (CB 271)
24 In the period June to August 2016, Mr Ralph Bach, an investigator acting on behalf of the defendant, which issued a policy of insurance to the plaintiff relative to the Maserati trading under the name “RACV Motor Insurance”, conducted interviews, which were transcribed and form part of the Court Book, with Mrs Virdi, her son and Mr Goenka senior. Mr Bach attempted to arrange an interview with Mr Udhav Goenka but it proved impossible to arrange a mutually convenient time. The transcripts of the interview are to be found at Court Book 281-447.
25 The defendant had issued to the plaintiffs a policy of insurance covering the Maserati for the period 21 October 2015 to 21 October 2016, but has declined to provide indemnity.
This proceeding
26 Solicitors acting for the plaintiffs issued a Writ dated 9 November 2016 seeking, on behalf of the plaintiffs, damages, interest pursuant to s54 of the Insurance Contracts Act 1984 or “pursuant to statute”, and costs.
27 In its Amended Defence dated 8 January 2018, the defendant admitted the existence of the insurance policy but denied liability for the consequences of the damage to the vehicle on 25 March 2016. The defendant denied that Mrs Virdi was driving the vehicle at the time. It admitted that repair of the vehicle was assessed as being uneconomical “on the basis that the pre-accident value of the vehicle was assessed as being $135,685”. It said, in the circumstances it was entitled “to elect to pay the reasonable cost of repairing the vehicle”. In its original Defence filed 20 December 2016, the defendant simply admitted that it was uneconomical to repair the vehicle.
28 The plaintiffs had claimed entitlement to what the insurance policy describes under the heading “New replacement vehicle” (CB 224), nominating the cost of providing such “new replacement vehicle”, in accordance with a quotation given by Zagame Maserati on 2 November 2016, at $219,253.90. (Statement of Claim, paragraph 11, CB 6)
29 The defendant alleged that the claim was made “fraudulently”, which entitled it to reject the claim in accordance with s56 of the Insurance Contracts Act. Amongst the particulars to this allegation of fraud was an allegation that Mrs Virdi “conspired with Meher and/or Dipendra Goenka in an attempt to deceive the defendant as to the circumstances of their collision”. (Amended Defence, paragraph 15(b), CB 20)
30 Further, the defendant said that it was entitled to refuse a claim “if, at the time of an incident, the driver of the vehicle did not hold the appropriate class of licence for the vehicle” or if the driver was engaged in “wilful or reckless conduct”. (Amended Defence, paragraphs 16(a) and (b), CB 20)
31 The defendant claimed further entitlements to refuse the claim on the basis of the plaintiffs not being “truthful or frank” (paragraph 16(c)), their failing to “cooperate fully with the defendant” (paragraph 16(d)) or their failing to act towards the insurer relative to the policy “with utmost good faith”. (paragraph 16(e)) These terms were said to be implied by s13 of the Insurance Contracts Act. (CB 21)
32 The defendant said that the Maserati “was being driven by a person who held a probationary driver license [sic]”. (paragraph 17(b), CB 21) The wilful and reckless conduct consisted, according to the defendant, in a combination of the location of the incident “on a narrow, windy road with a steep embankment falling away from the southern edge of the road to the ocean below” with a speed limit of 80 kilometres per hour and advisory speed limits of 35 kilometres per hour in circumstances where “prior to the collision the vehicle was travelling at a speed of 119km/h”. (Amended Defence, paragraph 18, CB 21-22)
33 As to the alleged lack of truthfulness and candour, the same matters relied upon on the issue of fraud were adopted. There were also allegations in paragraph 20 of a lack of cooperation relative to the provision of statements and attendance at a further interview. These matters were not raised at trial and I treat them as having been abandoned.
Location of impact
34 According to the plaintiffs, the impact occurred on a stretch of the Great Ocean Road just on the Apollo Bay side of the Cumberland River crossing. The defendant’s case was in accordance with the evidence of Mr Spizzica, the tow-truck driver, that the impact occurred some 1.9 kilometres further toward Apollo Bay just beyond the Mt Defiance lookout carpark. Mr Spizzica referred to a photograph at CB 575 and identified this as the point of impact. He described it as “the guard rail there was where the Maserati actually hit”. (T180, L23-24) Mr Spizzica said he later inspected this barrier and identified white paint transfer which he believed came from the Maserati. (T181, L1-18) This was an educated guess on his part, not the result of any chemical analysis of the paint transfer itself.
35 Mrs Virdi did not pretend to any detailed memory of the location of the impact, and therefore could shed no light upon the correct location. Her son Meher, however, said he was clear in his recollection that the nearby carpark where he waited, unlike the carpark at the Mt Defiance lookout, had no stone wall. (T319, L7-16)
36 The defendant commissioned civilian forensic accident investigator and accident reconstructionist Mr Nigel McDonald to conduct an assessment of the reported incident. His investigations concentrated on the “Airbag Control Module”, colloquially referred to as the ACM (CB 38), which had a secondary function of recording crash data. This device is sometimes colloquially referred to as the “black box”, performing a function similar to aircraft data recorders which are resorted to in the investigation of aircraft accidents. Mr McDonald said that he was able to download a number of data parameters for the five seconds immediately preceding the impact.
37 Mr McDonald assumed, for the purposes of the analysis in his written report, that the impact occurred at the location identified by Mr Spizzica on the Apollo Bay side of the Mt Defiance lookout. His analysis assumed that there was “no wheel slip”. (CB 48) Mr McDonald said:
“Placing the vehicle path onto the alignment of the road at the reported accident site, I am unable to fit the path to the road alignment ... This inability to match the vehicle path to the road alignment raises two likelihoods. One is that the impact did not occur at the location reported. The other is that the assumption regarding wheel slip is invalid.” (CB 50)
38 He continued:
“If the vehicle drive wheels were slipping during the first 1.4 seconds, the true speed of the vehicle may have been less than is reported by the CDR report and the vehicle [may] not have travelled as far as calculated over that interval. In that instance, with the vehicle turned towards the inside of the curve, it would be possible that the section of the road overlapping the path shown in the middle of Figure 10 could have been traversed by the insured vehicle. That path would then also be consistent with where the vehicle may have been ultimately recovered in the area further west.” (CB 51)
39 Modern vehicles, even those below the “prestige” standard of a Maserati, tend to be fitted with satellite navigation systems linked to the GPS system. On the face of it, a system such as this, which one would expect to be installed in a prestige vehicle like the Maserati, should enable it to be established with certainty where the impact took place. According to Mr McDonald, this feature was installed in the Maserati as part of its infotainment system. (T471, L17-31) According to Mr McDonald:
“Unfortunately there was some form of fault with the infotainment unit when I attempted to look at it, something has disrupted power to it, potential burnt out a fuse. [sic] I’m wasn’t able to extract the data from the car.” (T472, L3-7)
40 It follows that the location of the impact cannot be established with the certainty which resort to GPS coordinates would enable it to be. Mr McDonald was asked in the witness box to consider how his analysis fitted the Cumberland River impact site as advocated by the plaintiffs. He agreed that the path of travel for the car in the last few seconds before impact which he derived from the “black box” fitted this location in a way which it did not fit the Mt Defiance site. He superimposed his presumed path of travel for the vehicle upon an aerial photograph of the Great Ocean Road section around Cumberland River and the suggested point of impact some hundreds of metres to the south of the river crossing. This depiction is to be found at CB 566A. The view that the impact took place near Cumberland River rather than the Mt Defiance lookout is also supported by the towing docket which Mr Spizzica filled out on the evening of 25 March (CB 258), which records that the Maserati was “towed from” “Cumberland River – Great Ocean Road”. When Mr Spizzica was asked about this in cross-examination he was unable to offer any explanation as to why he would have nominated Cumberland River as the impact site rather than Mt Defiance lookout. (T184-5)
41 In light of the firm evidence of Mr Meher Virdi, the contemporary record constituted by the towing docket, and Mr McDonald’s analysis, I conclude that the impact took place just to the south of Cumberland River rather than further south beyond the Mt Defiance lookout. I do not doubt that Mr Spizzica located white paint transfer on the barrier at the presumed impact location south of Mt Defiance. This is a very narrow portion of the Great Ocean Road, and the barrier would be quite exposed to impacts. Self-evidently, white is a very common colour for automotive paint.
Fraudulent claim
42 A broad consideration of the circumstances attending this impact, including the physical analysis carried out by Mr McDonald, and a consideration of the overall circumstances, would plainly be supportive of the view that the claim as mounted by the plaintiffs is fraudulent – fraudulent in the sense that the narrative would appear to be untrue, in circumstances where the untruth could not have arisen from simple mistake or be explicable by any means other than there was an intent to mislead the insurer.
43 A desire late in the day to join a house party at the Goenkas’ residence on the Melbourne side of Lorne can scarcely explain how it was that the Maserati came to be travelling on a windy road after dark, 15 to 20 miles on the far side of Lorne. Mr Udhav Goenka’s explanation that, as the driver of the lead car, he simply decided, apparently on a whim, that it would be pleasant to go for a drive beyond Lorne, is difficult to credit. First, all persons involved had mobile phones. There was no suggestion that in the immediate vicinity of Lorne there would have been any problem with mobile phone coverage. Had Mr Goenka junior decided to modify the plan to travel to the Hall Street holiday house, one would have expected him to telephone one of the people in the Maserati; if not to ask permission for the change of plan, at least to explain and perhaps receive a comment. One would, in any event, have expected all concerned to have been keen to reach their destination at Hall Street to “stretch their legs” and have something to eat or drink after two hours’ driving from Balwyn, or in the case of the Virdis, from Wheelers Hill. To drive on past Lorne for sightseeing purposes makes no sense after nightfall. There were two young men in separate high-performance cars: Mr Udhav Goenka and Mr Meher Virdi. Mr Donald submitted that there may have been other young men involved as well, including Mr Tarun Goenka, Udhav’s younger brother, and a friend of Mr Goenka’s, Mr Daniel Hollings. There is a great deal of force in the submission made in closing by Mr Donald on behalf of the defendant:
“that it is highly improbable that the drivers of the vehicles [viz the Ferrari and the Maserati] would have extended their drive by 40 minutes when it was late, dark and there was nothing much to see. A far more plausible explanation is that the ‘boys’ wanted to have some fun in their expensive sports cars. The suggestion that a conservative mother (in her mid-forties) of two children would have enjoyed driving at excessive speed along a dangerous stretch of the Great Ocean Road, late at night is fanciful.”
44 This view is amply supported by Mr McDonald’s analysis based on Cumberland River being the site of the impact. His presumed track for the Maserati, far from depicting it being forced to the left by an oncoming vehicle on the wrong side of the road, depicts the Maserati “cutting” the final curve before impact: that is, encroaching on the oncoming lane. On the table of pre-crash data, according to the downloaded data, the engine rpm were near 5,000 three seconds out from impact. (CB 88) He recorded a deceleration from 116 kilometres per hour down to 36 kilometres per hour over 3.2 seconds. He said:
“For comparison, the rate of braking for an event such as a changing traffic signal is around 0.2g, and the maximum level of traction of a typical pavement is in the order of 0.7 to 0.8g.” (CB 42)
45 He said:
“The steering data shows a continually increasing right-steer impact from 3.6 seconds prior to impact up until 0.5 seconds prior to impact, ... Between 0.5 and 0.1 seconds prior to impact the steering remains turned largely to the right (turned between 446 and 467 degrees from the straight-ahead position), albeit with a relatively slight decrease of 21 degrees over 0.4 seconds.” (CB 43)
46 This appears to be the sort of aggressive driving typically presumed to be the realm of young men rather than mature adults. Mr McDonald did not calculate the effect of the extreme turns of the steering wheel which he recorded. He remarked, however, “It would be – well, it would be extreme if you were travelling at a high speed” (T485, L22-24), which at least at some point this vehicle clearly was. The speed a second before impact was 66 kilometres per hour. (T485, L27-29)
47 The plausibility of the view that this impact was not accurately reported to the insurer is supported by the relocation of the point of impact to the Cumberland River rather than the putative site just beyond the Mt Defiance lookout. The site depicted in photographs 574 and 575 shows a much narrower road surface, much tighter corners, and little or no “verge” between the edge of the Apollo Bay-bound traffic lane and the barrier. One could well envisage a circumstance where, at night, an Apollo Bay-bound vehicle might be surprised by an oncoming vehicle encroaching upon its lane and be forced into an impact with the roadside barrier in taking evasive action. The visibility at the Cumberland River accident site depicted at CB 566A is, however, far better for an Apollo Bay-bound vehicle. The paved area, including an adjacent “hard shoulder”, is much more extensive, and the plausibility of the impact having occurred as narrated by Mrs Virdi is much less.
48 Section 56 of the Insurance Contracts Act 1984 provides:
“56 Fraudulent claims
(1) Where a claim under a contract of insurance, or a claim made under this Act against an insurer by a person who is not the insured under a contract of insurance, is made fraudulently, the insurer may not avoid the contract but may refuse payment of the claim.
(2) In any proceedings in relation to such a claim, the court may, if only a minimal or insignificant part of the claim is made fraudulently and non‑payment of the remainder of the claim would be harsh and unfair, order the insurer to pay, in relation to the claim, such amount (if any) as is just and equitable in the circumstances.
(3) In exercising the power conferred by subsection (2), the court shall have regard to the need to deter fraudulent conduct in relation to insurance but may also have regard to any other relevant matter.”
49 Mr Donald, on behalf of the defendant, relied upon the decision of the Court of Appeal in To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279. In that case the insured’s 15 year old son drove the insured vehicle without her consent and damaged it. The insured believed that these circumstances would not be insured against, and she falsely stated that the vehicle had been stolen and damaged. The insurer refused the claim. In the Court of Appeal the insured contended, as her arguments were summarised by Buchanan JA:
“… that the purpose of s.56 of the Act was to prevent a fraudulent claimant being punished by limiting the effect of fraud to reduction of the liability of the insurer by the extent to which it had been prejudiced by the insured’s fraud. Accordingly, if the insured did suffer loss covered by the policy, he or she could recover the amount of the loss notwithstanding the commission of fraud in connection with the making of the claim. The fraud itself would have no legal consequences. In every case the claim would not be payable simply because there was no loss or other event covered by the policy.” (2001) 3 VR 279, 284, [16]
50 Delivering the principal judgment, concurred in by Charles and Callaway JJA, Buchanan JA summarised the position under the common law of insurance before the commencement of the Insurance Contracts Act as follows:
“A fraudulent claimant forfeited all rights under a policy of insurance. As a matter of public policy, attributable to the need to promote honesty on the part of insured persons and proponents for insurance, whose knowledge of the relevant circumstances of the casualty as well as the nature of the risk was generally greater than that of their insurers, the courts would not aid a fraudulent claimant. The courts would not look behind fraud to see if otherwise there was a valid claim or a claim unaffected by the fraud, and no effort was made to reduce or extinguish claims only after gauging the effects of the fraud upon insurers.” (2001) 3 VR 279, 284, [14]
51 His Honour rejected the argument advanced by the insured as to the effect of s56, stating:
“I can detect no such intention in the section. In my opinion the changes to the common law position effected by s.56 are only to limit the insurer’s remedy in the event of fraud to the denial of the fraudulent claim rather than avoidance of the policy and to enable the Court to order payment where only a minimal or insignificant part of the claim, is fraudulent and it would be harsh and unfair not to pay the remainder. Otherwise the legal position remains unaltered: an insurer need not pay a fraudulent claim, whether or not there is an underlying loss which is covered by the policy. There was a moral or public policy dimension to the common law principle, which is preserved in s.56.” (2001) 3 VR 279, 284 [17]
52 His Honour seemed to accept that a claim would be fraudulent if an insured:
“... knowingly made false statements and intended to deceive the [insurer] by obtaining money which she believed she had no right to receive.” (2001) 3 VR 279, 283 [12]
53 Callaway JA added a comment which was concurred in by Charles JA, stating:
“A false statement made recklessly in the sense explained in Derry v. Peek [(1889) 14 App Cas 337] would suffice and I would leave open for some future occasion a lie that was not told for the purpose of inducing the insurer to meet the claim but was nevertheless material to the question whether, or perhaps when, a payment or other benefit under the policy would be made or conferred. It might be material in the mind of the insurer but not of the insured or it might seriously (and not just in some minor respect) affect the investigation.” (2001) 3 VR 279, 281 [4]
54 In the present case there was no discrete document within the four corners of which one could find the insurer’s claim. It was implicit, as I understood it in the way the case was conducted, that a false statement made in the course of the telephone conversation on 27 March where the claim was lodged, or in the course of interview by the insurer’s investigator Mr Bach, could render the claim fraudulent.
55 Turning to paragraph 15, the paragraph of the Amended Defence setting out the matters on the basis of which it was contended that the plaintiffs had made the claim fraudulently, the particulars alleged in subparagraph (a) that Mrs Virdi had:
“... made numerous false statements in connection with the claim, which were made by [her] knowing the statements to be false for the purpose of inducing the defendant to pay the claim, including that: ...” (CB 19)
56 The list, which appears at (i) to (vii), therefore does not purport to be exhaustive. Nevertheless, I believe I should approach the determination of this proceeding upon the basis that this list is closed. There has been no application to amend this paragraph of the Defence or to supplement the particulars. It would be wrong in those circumstances to leave the plaintiffs at risk of a finding of fraudulent conduct based upon matters not specifically pleaded but included simply on the basis of a non-exhaustive list. All of the particulars, other than particular (iv), refer to circumstances which formed part of the narrative given on behalf of the plaintiffs, explaining and being supportive of the statement that Mrs Virdi was driving the Maserati at the time of the impact which is specifically referred to at sub-paragraph (iii) of the particulars.
57 In the course of that interview Mrs Virdi was asked by Mr Bach, at question 996:
“What’s the speed limit along that section of [the] Great Ocean Road where the accident happened?”
58 Her answer was:
“Must be 60 but I was even less than that, according to me, I was quite – I was not in high speed by any chance. Quite – quite less than that [presumably 60 kilometres per hour].”
59 Mr Bach next asked, at question 997:
“All right. So, what speed were you travelling along the Great Ocean Road?”
60 Her answer was:
“I wouldn’t be more – more than 50 according to my - my thing, ‘cause I don’t drive very fast.”
61 Mr Bach then asked, at question 998:
“So, around 50 kilometres per hour?”
62 And she replied:
“Yeah.” (CB 353)
63 In her evidence to the court Mrs Virdi did not adhere to this account. In light of the data downloaded by Mr McDonald she could scarcely have done so. She agreed that she had given the answer quoted to Mr Bach (T72). Pressed on the point, Mrs Virdi told Mr Donald:
“So I’ll say it again sir, please, I had been driving in a very controlled situation. I did not see my odometer [sic scil speedometer], so exactly I can’t tell you which speed I was travelling. I was very under control of the car, so that is why I made this figure up without understanding – I did not check my odometer by any chance, because I was well under control of the car. I did brake the car before I hit the rail.” (T74, L19-26) (Emphasis added)
64 An allegation of making an insurance claim fraudulently is a very serious matter. Such a thing, if proven, could constitute a criminal offence. In these circumstances, one thinks first of Sir Owen Dixon’s seminal judgment in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour said:
“When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues.” [363]
65 Earlier in his judgment, his Honour said:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” [361-2]
66 At the close of his analysis on this subject his Honour said, “consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected”. [363]
67 This approach to fact finding is embodied in s140 of the Evidence Act 2008, which provides as follows:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
68 This section is reflective of some, if not all, of the considerations referred to by Sir Owen. Whilst, on one view, s140 might be regarded as having codified the law on the subject, many appellate decisions in jurisdictions which are governed by the Uniform Evidence Act containing s140 continue to refer to Briginshaw v Briginshaw. I will approach the issue of fact finding relative to the allegation of fraud in accordance with s140 and the principles in Briginshaw.
69 I turn first to Mrs Virdi’s statement as to the speed of the vehicle prior to the loss of control and impact with the barrier. Her statements, quoted above, to Mr Bach were plainly incorrect. They are falsified by the black box data downloaded by Mr McDonald. Conformably to the Court of Appeal’s decision in To’s case this statement will be regarded as fraudulent for the purposes of s56 of the Insurance Contracts Act if it were made deliberately or recklessly. It may be thought, based upon Mrs Virdi’s own evidence, that she made the statement at least recklessly. She said in quoted passages, and on many other occasions, that at no stage did she check the car’s speedometer (which she referred to as “odometer”). The only basis for her assertions as to speed, according to her own account in cross-examination, was a subjective feeling of control of the motor vehicle and that it was travelling at a safe speed. That could not be a proper basis for a perception that a particular speed had not been exceeded.
70 It is common experience that speed limits are varied over particular stretches of highway over time. Is it to be thought that a stretch of highway which previously had an 80 kilometres per hour speed limit, which is reduced to 60 kilometres per hour, would produce a feeling of danger or lack of control for a driver of a vehicle traversing it at 70 kilometres per hour? Again, speed limits may be applied and lowered based on considerations other than the ability of a driver on the relevant stretch of road safely to steer his or her vehicle. The limit may be imposed to facilitate crossings by pedestrians or vehicles from intersecting roads. In any event, I cannot believe that a driver of this Maserati, whether Mrs Virdi or anybody else, could have believed that 50 kilometres per hour was an accurate estimate of the speed of the vehicle before loss of control and impact.
71 In the case of Mrs Virdi herself, Mr Donald for the defendant drew attention to the following pieces of evidence relative to Mrs Virdi’s familiarity with the Maserati’s performance and handling characteristics and with high powered prestige vehicles, generally: Mrs Virdi was familiar with the propensities of high performance vehicles. (T31, L29-30) She accepted that the Maserati was a high powered vehicle. (T32, L15-16, T75, L30-31) She had driven the Maserati on normal roads subject to a 60 kilometres per hour speed limit (T32, L28-30), as well as on highways with a higher speed limit, such as 100 or 110 kilometres per hour. (T32, L31, T33, L1-7)
72 Accordingly, by March 2016, Mrs Virdi was very familiar with driving the Maserati. (T33, L12-13) She was conscious of the difference between travelling at 60 kilometres per hour as distinct from 100 kilometres per hour. (T33, L22-27, T34, L3-19)
73 It may well be that perceptions of speed may be distorted in particular circumstances. When a vehicle that has been travelling at high speed, say 100 or 110 kilometres per hour, transitions to a 60 kilometres per hour limit, it may seem to the driver or passengers that the vehicle is moving at no more than walking pace. (T489, L10-19)
74 There was no suggestion of any such transition here or that the impact occurred on a bend following a long straight section of highway where high speed could be comfortably accommodated. On the contrary, the evidence was that this section of the Great Ocean Road was “windy” throughout. On a road such as this, the real speed of the vehicle would be brought home to the driver by the frequency with which it is necessary to turn the steering wheel to maintain the vehicle on the road alignment.
75 The balance of the matters which the defendant alleges as being fraudulent are features of the plaintiffs’ claim relating to the identity of the driver. This is specifically mentioned in sub-paragraph 15(a)(iii) and the other sub-paragraphs, except for the one relative to the speed of the vehicle, which all relate to alleged misstatements forming part of the integrated narrative supportive of the view that Mrs Virdi was driving the Maserati at the time of impact.
76 I have already described the series of very powerful considerations which point away from the plausibility of Mrs Virdi’s account that she was the driver. In support of her account, however, we heard evidence from her son who gave a similar account of the evening and said he was riding in the front passenger seat at the time of impact. Mr Udhav Goenka gave evidence of having driven the lead Ferrari motor vehicle on the drive to Lorne and beyond, and to collecting Mrs Virdi from the impact site and taking her home to Hall Street. His father, Mr Dipendra Goenka, gave evidence of having driven Mrs Virdi back to Wheelers Hill that night, or in the early hours of the following morning. Mrs Virdi’s daughter, Rani, gave evidence of having spent Good Friday evening home alone at Wheelers Hill.
77 Forensic scientist, Ms Spiden, gave evidence of having detected Meher’s DNA on the passenger side airbag of the Maserati. To conclude that Mrs Virdi’s claim to have been driving the Maserati at the time of impact was fraudulent would require the rejection of the evidence of the other members of the Virdi family and the Goenkas in circumstances where the only explanation for that evidence could be that it was deliberately untrue. Mr Donald conceded that his client bore the onus of proof on this issue. There was no suggestion that Ms Spiden’s evidence was other than accurate.
78 If, however, I were to conclude that the evidence of the family members was deliberately untrue, with the Maserati being held at the plaintiffs’ disposal apparently at a location in Clyde North, a family that, upon this premise, was prepared to give deliberately untrue evidence, could easily “plant” DNA in a particular part of a vehicle held under their control.
79 Mr Donald made lengthy submissions as to why the defendant said that the various family members ought not to be treated as witnesses of credit. As to Meher, he drew attention to inconsistencies in his accounts as to when he returned to Wheelers Hill on 26 March, where he told the investigator that he was home at about 8.00pm and telephone records indicated him still in Lorne until 8.12pm at least. (CB 511)
80 As to Mr Udhav Goenka, Mr Donald said his explanation as to how the Ferrari and Maserati came to drive past Lorne, as described above, was unconvincing and inconsistent. He noted Mr Udhav Goenka’s denial of using his telephone during the drive (T210, L13-15), which evidence he had to withdraw when confronted with telephone records indicating the opposite. He said that this witness used the answer “I don’t recall” or “I can’t recall” on more than 40 occasions.
81 Likewise, said Mr Donald, Mr Dipendra Goenka’s evidence was “unreliably vague”. He noted a lack of any detailed recollection of the crash scene or the presence of other vehicles. He said:
“It is not credible that such a close friend of the Virdi family would have such little interest in, and vague recollection of, the collision scene especially in circumstances where the Maserati had been involved in a serious collision on a dangerous road and was (by its positioning on the roadway) in a dangerous position and that Meher had been injured albeit suffering minor injuries.”
82 Mr Donald also attacked the credibility of the evidence given by Ms Rani Virdi. It will be recalled that her evidence was to the effect that she was home alone on Good Friday night after her brother and mother headed off to Lorne. Mr Donald cross-examined her by reference to telephone records which, he submitted, were inconsistent with this account. It was common ground that Mrs Virdi’s mobile phone did not travel to Lorne. Mr Donald noted a series of telephone calls made from Mrs Virdi’s mobile beginning at 7.44pm, and recorded at CB 479, in records obtained from mobile-phone carrier Optus, showing that at 7.44pm there was a call placed to a lady identified as ‘Delia’. She is a friend of Mrs Virdi and a contemporary of hers. The next call was recorded as being to Meher at 7.53pm, with a further call noted at 7.54pm. At 8.07pm there was a call to an individual identified as ‘Amit’, and at 9.25pm a call to ‘Ritu’, another friend and contemporary of Mrs Virdi. At 9.48pm there was a short call logged to Ms Rani Virdi. The defendant’s case, according to Mr Donald, was that these calls were made by Mrs Virdi herself, and they indicate that she remained at Wheelers Hill and did not travel to Lorne that night.
83 Ms Rani Virdi said that she made each of these calls on her mother’s mobile phone, despite having her own phone in the house at Wheelers Hill. She said use of her mother’s phone was a mere matter of convenience. The calls to two women of her mother’s age were, according to her, directed to their daughters, who were Rani’s friends. The call to Rani herself, she said, was made by mistake as she was “clearing” her mother’s mobile. Rani said that Amit, apart from being a key employee in the Virdi family’s business, was the “Godfather” and friend and that she had telephoned him that night. Mr Donald submitted that these explanations were not credible. He noted that the call records for Ms Rani Virdi’s phone for the corresponding month, March/April 2016, which were part of the Court Book, did not disclose calls to either Delia or Ritu or their daughters. As to the call logged to Rani herself, he said that a mistaken call in the circumstances described by Rani would flash on the face of the calling phone, and the call would have been cancelled before it was answered or went to voicemail.
84 Mr Donald also cross-examined Ms Rani Virdi as to her own phone records for that evening, noting that one call made from her own phone at 9.46pm was, according to the billing record (CB 505), recorded as having been “pinged” from a tower at Narre Warren North. Mr Donald said that this tower was some 19 kilometres distant from Wheelers Hill. He relied on evidence from a representative of Optus, Mr Finlay, to the effect that mobile calls are picked up and relayed by the closest available tower. The closest tower may be fully committed at the time a call is made, and so the call might be “pinged” by a more distant tower. Mr Finlay said it was highly unlikely, in an area with a large number of towers such as Wheelers Hill, that a call from Wheelers Hill would be picked up and pinged from as remote a tower as Narre Warren North. If that view were accepted, it would indicate that Ms Rani Virdi, despite her evidence, likely left the Wheelers Hill residence on Good Friday evening 2016 and was not “home alone” for the entire night as she said she was. Mr Donald also relied on a “P” Plate photographed in April 2016 on the dashboard of the Maserati. (CB 76)
85 If we were confined to the evidence of Mrs Virdi, it would be unclear whether the Maserati travelled to Lorne via the seaside route through Anglesea or the inland route via Deans Marsh. Mrs Virdi could give no account of the various towns or townships through which the vehicle travelled that night. These matters, and the general issues as to the plausibility of the plaintiffs’ case as to what happened on the night of 25 March 2016, would all favour the view that the plaintiffs’ witnesses had given untrue evidence which should be rejected, and that, insofar as the plaintiffs’ claim is based upon Mrs Virdi being the driver of the Maserati on 25 March 2016, the claim is fraudulent. Against that must be set the steadfast way in which each of the witnesses gave their evidence, and the fact that Mr Spizzica, the tow-truck driver, was told on the night of 25 March that “Mum was driving” (T190, L5). There was no clear evidence as to how the “P” Plate came to be on the dashboard weeks after the accident.
86 With the onus of proof lying upon the defendant, and informed by the considerations derived from Sir Owen Dixon’s judgment in Briginshaw and s140 of the Evidence Act, such as the operation of the presumption of innocence and the need for exact proofs in circumstances such as these, despite grave doubts, I am ultimately not satisfied that the defendant has discharged the burden of proving that the plaintiffs’ claim was fraudulent insofar as it was based upon the assertion that Mrs Virdi was driving the Maserati on the night of 25 March.
Wilful or reckless act?
87 The defendant’s policy stated that if the driver of the vehicle “were engaged in a wilful or reckless act while driving the vehicle…we will refuse any claim”. (CB 226) The defendant also sought to deny liability based on this ground.
88 Both parties contended that the true construction of this provision of the policy would be elucidated by reference to the decision of the Full Court of the Supreme Court in Albion Insurance Company Limited v Body Corporate Strata Plan No 4303 [1983] 1 VR 339. In that case, a plaintiff had obtained judgment against the body corporate for negligence relative to injury which he suffered upon the collapse of a stairway railing forming part of the common property of the relevant subdivision. The body corporate obtained a judgment by way of indemnity against its liability to the plaintiff against its insurer. The insurer appealed to the Full Court. The policy included a condition to the effect that the insured “shall take all reasonable precautions to prevent bodily injury … and shall take reasonable measures to maintain all premises, furnishings, fittings, appliances and plant in sound condition …”.
89 On appeal, and at trial, the insurer contended that the body corporate had breached the condition. The principal judgment on appeal was delivered by McGarvie J. Young CJ delivered a short concurring judgment and Anderson J concurred with both the Chief Justice and McGarvie J. Reliance had been placed on a judgment of Diplock LJ in Fraser v B M Furman (Productions) Ltd [1967] 1 WLR 898 relative to an employer’s liability policy which included a somewhat similar provision. McGarvie J said, of the provisions in the body corporate’s policy:
“… by their ordinary meaning would require the insured to take such precautions as should reasonably be taken so as not to be negligent or in breach of duty as an occupier of premises, to a person sustaining bodily injury. That construction would be repugnant to the commercial purpose of the contract of insurance for the reasons advanced by Diplock, LJ Another possible construction is that the condition requires the insured to take such precautions as the insured realizes should reasonably be taken to prevent bodily injury. That construction would also be repugnant to the commercial purpose of the contract. Frequently an occupier of premises recognizes a danger and resolves to take specific reasonable precautions but, through delay or neglect, has not done so before bodily injury occurs. It would cut a great swath from the practical adequacy of cover under a public liability policy if the condition deprived such an insured of the right to indemnity. If the purpose of the condition were to protect the insurer where the failure to take reasonable precautions was not due to causes such as delay or neglect, but due to a deliberate decision to expose himself to the risk of bodily injury occurring, because he did not care whether it occurred or not, that would be consistent with the commercial purpose of the insurance contract. An insurer, insuring an insured against liability for breach of duty causing bodily injury, naturally seeks to limit the indemnity to liability for the actions or inactions of the insured while the insured is motivated by the ordinary human desire to prevent bodily injury to others. The very existence of the insurance cover which removes from the insured the financial responsibility for paying damages, may lead a callous insured person to have no concern whether others sustain bodily injury. Diplock, LJ said that the purpose of the condition in the policy before him was "to ensure that the insured will not, because he is covered against loss by the policy refrain from taking precautions which he knows ought to be taken": at ([1967] 1 WLR) p. 906; ([1967] 3 All ER) at p. 61. It would be consistent with the commercial purpose of the contract if such a condition also deprives of insurance cover an insured person who deliberately leaves a recognized danger in existence in the vindictive hope that someone who uses the premises will sustain bodily injury.” ([1983] 2 VR 339, 344)
90 On the following page, his Honour said:
“The test which Diplock, LJ propounded is not whether the insured who recognizes a danger, takes no measures or takes measures which he knows to be inadequate to avert it. The test is whether the insured deliberately courts the danger by refraining from taking any measures or by taking measures which he knows to be inadequate to avert it. The word "deliberately" indicates intentional, considered action or inaction. The verb "court" suggests action or inaction which invites the danger of accident. The test requires more than a recognition of the danger and failure to take any measures or any measures known to be adequate to avert it. It requires that this be due to a deliberate decision to court the danger.” (Ibid, 345)
91 Mr Donald contended, and Mr McDermott denied, that the driver deliberately courted danger in the way in which the Maserati was driven in the final seconds before impact. Mr Donald referred to a passage later in his Honour’s judgment in Albion at 345, where McGarvie J said, “Megaw, J. held that a party who was grossly careless could act recklessly without actual recognition of the danger: Shawinigen Ltd. v Vokins and Co. Ltd., [1961] 1 WLR 1206; [1961] 3 All ER 396”. However, at [1983] 2 VR 345-6 McGarvie J said, “In my respectful opinion there is no place in the relevant principle of construction for either the word "reckless" or the concept of recklessness”. I therefore put this concept to one side.
92 In final submissions, Mr McDermott said:
“A misplaced confidence in your vehicle’s ability to stay safely on the road in my view does not satisfy McGarvie’s test of intentional, considered action. Now we have an unreasonable acceleration after coming around a bend followed by urgent braking. Acceleration is a straight stretch of road.
Now indeed people should travel at the speed limit, but if your view is an overconfidence in this vehicle, unlike other vehicles will see me through. I, my son and the vehicle will come to no harm. I don’t believe that I am courting a danger that will result in what ultimately happened.” (T594, 15-26)
93 Mr McDermott said that accident reconstructionist, Mr McDonald, conceded in cross-examination that “it was the change of direction that lost control of the vehicle, that the speed obviously – the catalyst was the change of direction”. (T595, L11-13) Mr McDermott continued, “it’s the overreaction and the correction of steering that lead to the loss of control”. (Ibid, L30-31)
94 He said it would be sufficient for the plaintiff to avoid a denial of liability under this condition, even absent a finding of an oncoming vehicle on the wrong side of the road:
“It just needs to be that you’ve accelerated, your car’s – you’re under control, you’re comfortable in the driving of your car, you’re confronted with a situation which has caused a reaction that caused an overreaction which has resulted in the loss of control. This is a very small timeframe from doing something so untoward as accelerating on a straight stretch.” (T596, L5-12)
95 Mr Donald referred me to the evidence as to Mrs Virdi’s experience as a driver of high performance cars in general, and the Maserati in particular, which has already been referred to above. He summarised the conditions obtaining on the night of 25 March, including the winding road and the speed limit of 80 kilometres per hour, and Mrs Virdi’s knowledge that the road “is a road with a steep cliff … cut into a mountain on the right side …the steep embankment on the left … (T65, L19-29, CB 573, 574)
96 He referred to Mr McDonald’s evidence that negotiating the bend crossing the Cumberland River would be uncomfortable at the speed the Maserati was travelling. (T501, L23-31, T502, L1-16) He said that the court should accept McDonald’s conclusion that loss of control and subsequent impact was caused by “excessive speed for the intended travel path”. (CB 54)
97 Mr Donald submitted that Mrs Virdi’s evidence that she was “comfortable” when driving the Maserati ought not to be accepted:
“Even if one assumes the manifestly false scenario of the oncoming vehicle, the speed and other circumstances of the driving of the Maserati gave the driver no opportunity to assess and avoid the situation which had arisen.”
98 According to Mr Donald, the danger could have been averted simply by slowing down, “the fact that the Maserati accelerated to an eventual speed of 39kph above the speed limit is strong evidence that a recognised danger was courted by the action of acceleration”.
99 In construing this provision, it is necessary to avoid the vice identified by the Full Court in the Albion Insurance case of adopting a construction that renders the policy of insurance nugatory. Persons take out comprehensive motor insurance policies precisely to be protected from the consequences of their own ordinary negligence. In general terms, one must accept Mr McDermott’s contention that a mere misjudgement of speed which leads to an impact ought not be regarded as a wilful or reckless act for the purposes of this exclusion cause. The question is whether that principle can be seen to be applicable to the facts of the present case.
100 One may consider a classic instance where an exclusion such as the present would not apply might be where a vehicle travelling at high speed on a straight stretch of highway approaches a bend. The driver misjudges the degree of deceleration required to navigate the bend and an impact occurs. In that case, there is nothing deliberate. No “courting” of danger in accordance with the formulation of McGarvie J.
101 As the accident path delineated at Court Book 566A demonstrates, the scenario here was very different. There were advisory speed limits of 45 kilometres per hour at one point and 35 kilometres per hour at another point. The black box data shows the problem derived from accelerating out of the curve described by the road approaching the bridge over the river and then braking and overcompensating upon the approach to the next curve as the road resumed its path parallel to the coast.
102 The plaintiffs do not suggest that the driver, whoever that was, was unaware of the speed limits, both mandatory and advisory. I have already explained why I do not accept any contention that the driver could somehow be inadvertent as to the excessive speed of the vehicle at this point.
103 Mr McDermott calculated the curve radius of the first curve, the one out of which the Maserati was accelerating, at 77 metres, with the critical speed as 86 kilometres. That latter expression is “the maximum speed at which a vehicle could travel on that radius without sliding off the curve and losing control”. (T476, L30, T477, L1)
104 Mr McDonald, after referring to the advisory speed sign, said:
“The vast majority of road users will travel relatively close to the curve advisory. There’s a tendency for many to travel maybe five or up to ten over the curve advisory speed. But to travel at something like the critical speed is the sort of behaviour you’d seen [scil see] on a racetrack rather than on a public road.” (T478, L8-14)
105 The date which he extracted from the black box shows that, accelerating out of the curve, “critical speed” was exceeded. This shows a pattern of aggressive driving without proper regard to the road conditions, the mandatory or advisory speed limits. If I were wrong as to the operation of the exclusion based on s56 of the Insurance Contracts Act, the claim should fail on the ground of wilful or reckless act. The driver wilfully adopted the speed and modes of driving which led to the impact and, for the reasons given, must have been aware of the danger – but courted it anyway.
106 My refusal to find that a person other than Mrs Virdi was the driver of the Maserati at the relevant time necessarily excludes any denial of liability based upon the Maserati being driven by a probationary driver.
Conclusion
107 There should be judgment for the defendant.
108 Costs are reserved.
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