Williams v Nominal Defendant and Rosekelly; Rosekelly v Nominal Defendant and Williams

[2007] NSWDC 81

CITATION:	Williams v Nominal Defendant and Rosekelly; Rosekelly v Nominal Defendant and Williams [2007] NSWDC 81
HEARING DATE(S):	4-8, 12-14 December 2006, 9 March 2007
JUDGMENT DATE:	4 May 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
CATCHWORDS:	Presence of unidentified motor vehicle - expert evidence on techniques of assessing pre-impact speeds
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Insurance Commissioner v Joyce (1948) 77 CLR 39 Joslyn v Berryman (2003) 214 CLR 552 Rickets v Laws (1988) 14 NSWLR 311
PARTIES:	Niki Williams Nominal Defendant Jodie Rosekelly
FILE NUMBER(S):	217/2005; 248/2005
COUNSEL:	217/05: Plaintiff: SJ Harben SC; PR Cummings Nominal Def: RR Stitt QC; BA Kelleher Rosekelly: SG Campbell SC; PJ Nolan 248/05: Plaintiff: PJ Kirby Nominal Def: RR Stitt QC, BA Kelleher Williams: SJ Harben SC, PR Cummings
SOLICITORS:	217/05: Plaintiff: Turnbull Hill Nominal Def: Moray & Agnew Rosekelly: Sparke Helmore 248/05: Plaintiff: Baker Love Nominal Def: Moray & Agnew Williams: Turnbull Hill

JUDGMENT

1 Niki Williams and Jodie Rosekelly were very seriously injured when the Holden utility in which they were travelling collided with a power pole on Glebe Road, Adamstown at about 12.15 am on 6 June 2002.

2 Ms Williams was driving the utility. It was owned by Ms Rosekelly who was in the front passenger seat at the time of impact.

3 Each of them has made a claim under the Motor Accidents Compensation Act 1999 for compensation in respect of their injuries.

4 Ms Williams claims against the Nominal Defendant and Ms Rosekelly.

5 Ms Rosekelly claims against the Nominal Defendant and Ms Williams.

6 Each alleges that the other is guilty of contributory negligence. The Nominal Defendant alleges that each of Ms Williams and Ms Rosekelly is guilty of contributory negligence.

7 Cross claims were brought by each of the defendants against the other in the claim made by Ms Rosekelly.

8 All of the claims of negligence and contributory negligence are denied.

9 The parties have agreed on the issue of compensation, leaving for determination the question of who was responsible for the accident.

10 In this respect the issues were:

(1) whether the driver of a second unidentified motor vehicle caused or contributed to the accident;
(2) whether there had been due inquiry and search into the involvement of a second unidentified motor vehicle;
(3) whether there was negligence on the part of Ms Rosekelly in failing to observe her obligations of supervision of Ms Williams as the holder of a learner driver’s licence;
(4) whether there was negligence on the part of Ms Williams, as the driver of the utility;
(5) whether there was contributory negligence on the part of Ms Williams or Ms Rosekelly.

BACKGROUND FACTS

11 Ms Williams and Ms Rosekelly at the time of the accident were 19 years old. They had known each other at the age of 12 or 13 years but had lost contact. They became reacquainted about two months prior to the accident when they were both working as casuals at the Exchange Hotel, Hamilton.

12 They enjoyed dancing and had developed a practice of going into Newcastle after work finished to dance, sometimes as late as 3 am.

13 Ms Williams was the holder of a learner driver’s licence. She had two lessons with a professional driving instructor and then drove her mother’s car under her mother’s supervision. She maintained, as required, a log book (Exhibit 2D-2) of her driving hours which indicated that between August 2001 and April 2002 she had received about 57 hours of training in her mother’s car.

14 Ms Rosekelly owned the Holden utility which Ms Williams was driving at the time of the accident. She also held a full driver’s licence.

15 Ms Williams had driven the utility between four and six times prior to the accident. When driving at the time of the accident, she was not displaying L-plates.

16 On the evening of 5 June 2002 Ms Williams and Ms Rosekelly were called in to work at the Exchange Hotel. Ms Rosekelly was told on arrival that she was not required. She was wearing her uniform with a jumper over the top.

17 Ms Rosekelly had one non-alcoholic drink at the Exchange Hotel before leaving with Shane McIntyre to go into Newcastle. They arranged to meet with Ms Williams when she finished work.

18 At the Lucky Country Hotel in Hunter Street, Newcastle, Ms Rosekelly drank five Cock Sucking Cowboys, a cocktail served in a 20 ml shot glass comprising three-quarters butterscotch schnapps and one-quarter Baileys Irish Cream.

19 Ms Williams met with Ms Rosekelly and Mr McIntyre at the Lucky Country Hotel where she purchased a 375 ml bottle of beer. She did not drink it all.

20 After a short period, Ms Williams, Ms Rosekelly and Mr McIntyre left the Hotel to walk across the pedestrian bridge over Hunter Street to go to Fanny’s Nightclub in Wharf Road. Ms Rosekelly had previously parked the utility in a street close to Fanny’s.

21 On arriving they parted company with Mr McIntyre. They had nothing to drink at Fanny’s. Ms Rosekelly complained of feeling too hot in the jumper she was wearing over her Hotel uniform and decided to go to her home in Adamstown to change.

22 Ms Williams drove the utility to Ms Rosekelly’s home at Adamstown where Ms Rosekelly changed and they set off to return to Fanny’s in Newcastle. Ms Williams again drove the utility.

23 In the course of the return journey and at about 12.14 am Ms Williams lost control of the utility which collided with a power pole on the northern side of Glebe Road, Adamstown, approximately five metres west of the intersection at King Street.

24 Ms Williams had no memory of the evening after she left Ms Rosekelly’s home at Adamstown.

ISSUE 1 – THE UNIDENTIFIED MOTOR VEHICLE

Ms Rosekelly’s evidence

25 The result of Ms Williams’ loss of memory was that only Ms Rosekelly could give evidence concerning the involvement of an unidentified motor vehicle.

26 She stated that she had been attending to the music coming from the CD player in the utility when she looked up and remembered a flash. She said she saw a car coming out of King Street on the right.

27 Ms Williams steered the utility to the right to drive to the rear of the car.

28 Ms Rosekelly said that she was very familiar with Glebe Road and was aware that they were approaching what she described as a median strip to the east and over a crest in the road. The structure was in fact a concrete pedestrian refuge island, measured by Mr Keramidas to be 120 metres east of the intersection of Glebe Road and King Street.

29 Ms Rosekelly said that she screamed out to Ms Williams medium strip (T.456) as a consequence of which Ms Williams steered the utility to the left. The utility began to slide.

30 Ms Rosekelly said the utility was sliding in the direction of houses on the northern side of Glebe Road and she was concerned that it would run into them. She reached across Ms Williams and twice pushed on the steering wheel in an attempt to turn it to the right.

31 Her next memory was of waking up five days later in John Hunter Hospital.

32 She said the car she saw coming from King Street was small and maroon coloured and she thought it was a Toyota Corolla or like model. It had a yellow and black number plate with a dirty big rust mark (T.455) near the number plate. It was travelling very slowly, real slow (T.455) or at about 2 kph. When she first saw the car it was still partially in King Street. It travelled directly across Glebe Road so that Ms Rosekelly thought it was heading for a driveway on the opposite side of the road. However, it subsequently turned into the parking lane in Glebe Road and turned east towards Merewether.

33 She said the car was very close to them when she first saw it, so close that she thought there would be a collision. Ms Rosekelly estimated the distance at which she first saw the car by reference to the distance from where she sat in the witness box to the rear wall of the court room. This distance measures 12.6 metres. She stated that she is not good with distances. Subsequently Ms Rosekelly stated that she had stepped out the distance from when she first saw the car to King Street at about 50 paces but she could not remember the precise number of paces that she had counted. She said she had told her lawyers the number but, although called for, no written record of this instruction was produced. Ms Rosekelly did not identify the point at which she started or finished pacing out this distance.

Independent witnesses

34 Evidence concerning the presence of a maroon vehicle was given by two local residents, Mr Scorse and Mr Sheridan.

35 Mr Scorse, a professional fisherman, lived at 196 Chatham Road at the time of the accident. Chatham Road intersects with Glebe Road. Mr Keramidas measured the distance from 196 Chatham Road to the site of the accident to be 196 metres. Mr Scorse said he was sitting on his front lawn mending fishing lines when he heard a loud thud. His push bicycle was nearby and he rode it to the corner of Chatham and Glebe Roads. Before he reached the corner he saw Mr Sheridan looking out of the window of his property, 460 Glebe Road, which was on the corner of Chatham Road. He had a brief conversation with Mr Sheridan and then continued to cycle to the corner. As he did so a maroon car came very slowly around the corner and turned into Chatham Road, stopping south of the driveway to Mr Sheridan’s property. The car, he said, was a Hyundai or Mitsubishi sedan with four doors. It made a crackling sound.

36 Mr Scorse stated that to this point he had been cycling on the footpath but turned off and onto the road to avoid overhanging branches. He cycled around the maroon car. He saw a male and female in the car. Their ages he estimated to be late teens or early 20’s. He saw this couple get out of the car and walk to within 30 metres of the site of the accident. They then walked away in the direction of Merewether to the east.

37 Mr Scorse cycled a further 50 metres to the site of the accident. There were no police or ambulance officers present at this point. Mr Sheridan arrived about 30 seconds to one minute later.

38 After about five minutes, Mr Scorse went home for his cigarettes and a shirt and noted that the maroon car was still there. Mr Scorse directed traffic until the police arrived.

39 Mr Scorse said he mentioned the maroon car to a very tall police officer who had been in the first police car to arrive. He stayed at the site of the accident until after the ambulances left, a period of about 1.1/2 hours. He walked back into Chatham Road and saw a woman in her 40’s get into the maroon car, undertake a U-turn and drive to the east on Glebe Road.

40 Some months after the accident Mr Scorse’s mother drew his attention to a newspaper advertisement concerning the accident. As a result he provided a statement to solicitors for Ms Williams. He agreed that the statement was dated 18 November 2003.

41 Mr Scorse said that he remembered clearly the events of the night, although he acknowledged that, until a few days before he gave his evidence at the hearing, he had believed that the utility had been coloured black when it was in fact white.

42 Mr Sheridan on 6 June 2002 lived on the corner of Glebe Road and Chatham Road. The driveway to his property was on Chatham Road.

43 He said that shortly after midnight he heard a bang. In response he walked from his house along the fence on Chatham and onto Glebe Road by jumping over the fence. As he did this he saw Mr Scorse riding his bicycle. He saw dust in the Adamstown direction and walked towards it.

44 Ahead of him were a male and female aged in their early 20’s. He said they were running towards the site of the accident and they appeared to be scared. He had not seen these persons near the Hyundai. He spoke to them but they did not respond to him.

45 On arriving at the site of the accident he spoke with Mr Scorse. After about an hour he borrowed Mr Scorse’s bicycle to ride back to his home to get a drink. He cycled on Glebe Road, turning left into Chatham Road to his driveway. He saw a maroon Hyundai car in Chatham Road, parked between the corner with Glebe Road and his driveway.

46 Mr Sheridan said that he directed a policeman to the car and showed it to him. Mr Sheridan thought that the policeman wrote something in his notebook. He did not read or sign what had been written.

47 He remained at the accident site for about 1.1/2 or 2 hours. On returning to his home he saw an older lady drive the Hyundai away. He did not remember if he had spoken to her.

48 He thought it was five years ago that he had been shown a newspaper clipping after which he provided a statement to Ms Williams’ solicitors.

49 Mr Sheridan acknowledged that his memory of the events of the night had been affected by time and that he was not absolutely certain of the timing of those events.

Police evidence

50 The identity of the police officer to whom Mr Sheridan spoke remained a mystery. Police officers Boscolo and Kaluski were the first to arrive.

51 Senior Constable Boscolo stated that he inquired of bystanders and was told that none of them had witnessed the accident. He did not recall speaking to anyone about the involvement of another motor vehicle and said that at no stage did anyone indicate to him that another vehicle had been involved in the accident. Officer Boscolo had made brief entries in his notebook (Exhibit FF) concerning the accident.

52 Constable Kaluski said he spoke only with other police officers and rescue personnel when he was at the accident site. He made no entry concerning the accident in his notebook. He said a number of other police officers were present, including Senior Constable Koppman.

53 Officer Kaluski said that on arrival he saw a number of bystanders present in their yards or on verandahs. He did not remember that there were any persons on the footpath. He denied that he had inspected a vehicle on a side street or conversed with any person concerning another vehicle. He rejected the proposition that he would not necessarily remember any such conversation, stating that he would have written down its terms.

54 Senior Constable Koppman was issued with a subpoena to attend to give evidence. He did not appear in response to the subpoena. Senior Constable Harman stated that at the time of the hearing Officer Koppman was on sick leave.

55 Senior Constable Harman had been a member of the Newcastle Crash Investigation Unit for eight months at the time of the accident. He received a message concerning the accident at about 12.30 am and arrived at the site at about 2 am. He identified police officers present at the site while he was there as Constables Boscolo, Kaluski and Koppman, Sergeant Lawson and the supervising officer, Sergeant Rowe.

56 Officer Harman said he probably spoke with all police officers present at the site and that he had recorded anything that they told him. At the site he found no objective evidence that any other motor vehicle had been involved in the accident. No witness came forward in response to police requests.

57 He was first informed about another motor vehicle by Ms Rosekelly when a statement was taken from her on 1 August 2002. He had not looked for any evidence of another motor vehicle until this statement was made.

58 Exhibit 00 comprised materials produced by the NSW Police Service in response to a subpoena which required the production of the notebooks of Officers Boscolo, Koppman and Lawson. A copy of the notebook of Officer Boscolo was provided. The Police Service advised the court that no notebook entries in respect of the accident had been made by Officers Koppman or Lawson.

59 The COPs report (Exhibit 1D-7) made no reference to the involvement of another vehicle.

Ms Rosekelly’s drawing

60 Ms Rosekelly said nothing of the involvement of another vehicle on the night of the accident. This was scarcely surprising since she was unconscious for some period after impact, trapped in the vehicle and very seriously injured. I have therefore taken no account of this factor.

61 She said that on the fifth day after the accident she first recovered some memory of how it had occurred. She did not know if she had spoken to anyone about the accident before this. At the time her parents were present and she told them about the car that had come out of a road. Her evidence concerning this conversation was:

…I described a car that came out of a road, I wasn’t sure of the name of the street at that time, I didn’t know the name of the street, but I know exactly where it was. I then described how the accident happened, like we went to the right to go around the back side of the car because the car was coming straight into the houses, then we came – I yelled, “Median strip” and I explained the whole thing. My mum was a bit – my mum asked a lot of questions and I was trying to answer the best as I could, so what I done, I drew it. I just drew what was in my mind and I gave it to my mum and my dad and I drew, then I drew the car. I remembered there was a little rust mark on the car, like I drew that. I don’t know why I remembered that, it’s just what I remember. (T.521).

62 Ms Rosekelly said that she had searched for the drawing but had been unable to find it. She stated that it had probably been discarded because it had not been considered to be significant.

63 Mr Dallas Rosekelly, Ms Rosekelly’s father, said that until the fifth day after the accident his daughter had been in pain and not coping well. Up to that date they had not discussed the accident.

64 On the fifth day she was normal and cohesive. He and Mrs Rosekelly were talking to her about her injuries when she suddenly asked for a piece of paper, stating:

“Dad get me a piece of paper, I need a piece of paper, I’ve got to draw something, I remember a car” … (T.575)

65 She then drew a sketch on the piece of paper and said that she had suddenly remembered that a vehicle came from the right and steered into the lane in which they were travelling. They steered to avoid it and she next remembered that they were wrapped around a telegraph pole, power pole (T.576).

66 As to precisely what the sketch contained Mr Rosekelly said that Ms Rosekelly did not sketch the way in which the vehicle moved or was driven. It was a drawing only of the back of the car.

67 Mr Rosekelly said that Ms Rosekelly kept the piece of paper at the side of the bed and continued to talk about the vehicle. She drew the back of it which apparently had some rust.

68 Mrs Rosekelly did not give evidence. A certificate (Exhibit QQ) of her general practitioner indicated that she suffers from a medical condition which prevented her attendance at court.

The speed of the utility at the time of loss of control

69 Three experts gave evidence of their attempts to analyse the events leading to the impact between the utility and the power pole. The speed at which the utility was travelling was relevant to the assessment of the veracity of Ms Rosekelly’s evidence of the involvement of a second vehicle. This was because, if the speed of the utility could be established, it would be possible to determine the point at which it was likely that the claimed second vehicle would have been visible to Ms Williams.

70 It was not disputed that Ms Rosekelly’s evidence was clearly wrong as to the distance between the utility and any second vehicle when first sighted. At a distance of 12.6 metres, it was agreed, a collision with the second vehicle could not have been avoided.

71 The experts, Mr Feenan, Mr Jamieson and Mr Keramidas agreed on a number of features:

(1) Tyre marks on the road leading to the point of impact with the power pole established that immediately prior to impact the utility had been sliding in an anti-clockwise direction in a movement referred to in evidence as a yaw. This movement was described by the Mr Feenan (Exhibit F) in the following terms:

To be in true yaw, the vehicle’s rear tyres must track outside the path made by the front tyres. A yaw commences when a vehicle is trying to negotiate a curved path at a speed too fast for its radius of travel. It is steering induced and can occur when a driver inputs steering intentionally, or unintentionally.

(2) To produce a yaw in an anti-clockwise direction it is necessary to steer to the left.
(3) The yaw in this case was the result of an abrupt steer to the left.
(4) The loss of control was probably due to a sudden and rapid steering motion which induced a slide. It was not expected that this rapid steering movement would occur without an external event.
(5) The tyre marks indicated that at some stage in its rotation, the driver’s side rear wheel of the utility had been 300 – 380 mm across the centre line of Glebe Road.
(6) There was no objective sign that the brakes of the vehicle had been applied.
(7) The average perception/reaction time of a driver at night is between 1.5 and 2 seconds.
(8) On impact the power pole intruded into the utility, behind the driver’s side front wheel and axle, at an angle of about 35 degrees to the driver’s door.
(9) On impact the power pole snapped at about three metres above ground. The pole was embedded in concrete below the ground. It had been erected in April 1967.
(10) The speed limit on Glebe Road was 60 kph.

72 The tyre marks on Glebe Road were marked with white paint by Senior Constable Harman by the light of a torch held by Sergeant Lawson. Officer Harman noted measurements of various features of the road in addition to the positions of the tyre marks and from these he produced a photogrammetry survey (Exhibit JJ). He said the photogrammetry plan was accurate with the exception that it showed the current power pole in a position slightly to the west of that which it replaced.

73 He and Sergeant Lawson also took photographs on the night of the accident (Exhibit DD) and the following day (Exhibit EE).

74 Officer Harman expressed the opinion that the yaw or rotational movement of the utility had commenced some distance west of the point where the first tyre mark appeared on the road. He was unable to state what that distance might have been. Mr Keramidas estimated the distance to be 12 to 15 metres further to the west of the first tyre mark.

75 Mr Keramidas explained that a vehicle could not spontaneously have reached a slip angle of 19 degrees. He further explained that, unlike a skidding tyre which is locked and heats up quickly, when a vehicle is in yaw the tyres are slipping but still rotating so that insufficient heat is initially generated to leave a mark.

76 This meant that in order to calculate the point at which action to avoid the second vehicle might have been taken, it was necessary to take into account:

o The distance covered by the tyre marks

o The distance that the vehicle was in yaw before tyre marks became apparent

o The distance covered during the perception/reaction time

o The distance covered during the manoeuvre to the right in an attempt to avoid the second vehicle

77 It was then necessary to apply those distances to the estimated speed of travel of the utility to determine the point at which it was likely that the steer to the right commenced.

78 Mr Feenan concluded that it was not possible on the available evidence to form an opinion as to the speed at which the utility had been driven prior to impact. He relied in reaching this conclusion upon the absence of evidence concerning the integrity of the power pole.

79 He also relied on the absence of information concerning crush measurements and the stiffness coefficients of that part of the utility into which the pole intruded. Speed calculations from damage to a vehicle were possible, he said, with this information.

80 Mr Feenan relied upon the photogrammetry survey to plot the point at which the wheels of the utility were tracking in line, that is, before control of the vehicle was lost. His opinion of the convergence point was plotted on figure 3 in his report to the left of the centre line of Glebe Road. From this exercise he concluded that the rotational movement of the utility had commenced to the north of the centre line of Glebe Road and that the rear driver’s side wheel had crossed the centre line in the course of that movement.

81 Mr Feenan also referred to a rule of thumb used for frontal collisions of one inch of collapse for each one mile per hour or 2.5 cm for each 1.6 kph.

82 Mr Feenan agreed that the utility had probably not been rotating rapidly as it slid towards the power pole.

83 The rule of thumb was referred to by both Mr Jamieson and Mr Keramidas. Mr Jamieson made adjustments to take account of the side impact with a power pole rather than a frontal collision and applied it to reach his conclusion as to the speed of the utility.

84 Mr Keramidas accepted that the rule, applied without adjustment, resulted in an impact speed of 38 kph. However, he said that the rule could not be applied in this way in circumstances where the result was inconsistent with the damage to the utility and with the radius of the yaw which would have been tighter if the utility had been travelling at 55 kph at the commencement of the yaw.

85 Mr Jamieson originally reported that he could not understand how Mr Keramidas had measured the radius of the yaw at 70 m in order to arrive at his estimates of speed. He subsequently learned that he had been mislead in his own calculations by figure 3 in Mr Feenan’s report which was reproduced in Mr Jamieson’s report as figure 6.

86 Mr Jamieson subsequently accepted the radius of the yaw at 70 m and agreed with the methodology applied by Mr Keramidas and with his arithmetical outcome of 82 mph at the commencement of the yaw. He pointed out that the methodology had been the chord-offset method developed by Fricke but stated that caution was required in adopting this method because:

(1) The photographs and the nature of the angled impact between the utility and the power pole indicated that the utility had been rotating rapidly anti-clockwise as it approached the pole.
(2) No account had been taken of the application of braking during the yaw process.
(3) It was inconsistent with his assessment of the impact speed.

87 Mr Jamieson accepted that the chord-offset method could be used to determine pre-impact speed if the rate of rotation of the vehicle was not rapid.

88 Mr Jamieson used photographs to estimate that the power pole had intruded into between one quarter and one third of the depth of the utility and on this basis assessed the impact speed at between 43 and 58 kph. He adopted an average of these figures of 50 kph to arrive at a speed at commencement of the yaw of 60 kph.

89 Mr Jamieson recorded that the tyre marks commenced at a point 25 m to the west of the power pole. Allowing for perception/reaction time of 1.5 to 2 seconds and the initial movement to the right, he assessed that the process would have commenced about 30 metres west of the visible tyre marks. This distance, he said, assuming a speed of 60 kph fitted with the proposition that an east bound driver perceived a vehicle coming out onto the road on the right.

90 Mr Keramidas’ estimate of speed of 82 kph at the commencement of the yaw lead him to the conclusion that the process commenced 100 m west of King Street and that it was therefore unlikely that it was initiated in response to the presence of another vehicle. The accident, he said, was probably the result of a steering over correction to the left at high speed.

91 The concerns expressed by Mr Jamieson with the methodology adopted by Mr Keramidas were among the many issues put to him in cross examination. They included:

(1) The danger in relying on the photogrammetry plan which, as had been pointed out by Mr Feenan, was drawn at a scale of 1:200 and likely to contain inaccuracies. Mr Keramidas stated that he had not relied upon this plan but had undertaken his own survey which, as closely as possible, had been taken from the dead centre of the white marks remaining on the road at the time of his inspection in September 2004. He accepted that he had seen no tyre marks on inspection but, acknowledging the caution required in dealing with photographs, said he had referred to photographic evidence to check the positions of the white marks on the tyre marks that existed at the time the photographs were taken. It was noted that Mr Jamieson had relied on the photographs and that both Mr Jamieson and Mr Feenan relied on the photogrammetry plan.
(2) Similarly Mr Keramidas said he had not measured the slip angles of the vehicle from the photogrammetry plan but from his computer at a scale of 1:1.
(3) He accepted that he had not taken into account the possibilities that the road had been wet at the time the utility was sliding, that braking might have occurred or that acceleration might have been applied immediately prior to the commencement of the yaw. He agreed that any of these factors could have affected his calculation. The COPs event report (Exhibit 1D-7) completed by Officer Harman stated that Glebe Road was wet. The evidence (Exhibit 1D-19) was that the weather was fine and that it did not rain on 5 or 6 June 2002. Officer Boscolo, the first police officer to arrive, stated that the road was dry. It is likely therefore that the water on the road noted by Officer Harman came from the operations of the rescue vehicles. There was no objective evidence that brakes had been applied during the yaw process. To the contrary, there was evidence of Senior Constable Harman that striation marks were noted, indicating an absence of braking. There was no evidence one way or the other concerning acceleration immediately prior to the commencement of the yaw.
(4) Mr Keramidas disagreed with Mr Jamieson and Mr Feenan concerning the stiffness of the part of the utility into which the pole had intruded. He noted that the intrusion had been into the passenger cell of the utility which he said was the stiffest part of the car. Although raised by Mr Feenan in his report as early as October 2003 as one of the features which could assist in determining the impact speed, no information was made available to the court by either plaintiff concerning the stiffness coefficients of the part of the utility into which the pole intruded.
(5) He said it was possible, but unlikely, that there had been a perception/reaction time of less than 1.5 seconds in the light of the fact that the driver, Ms Williams had been young and fit. He said her youth and fitness could have allowed for a faster perception time but Ms Williams’ inexperience would have resulted in a longer reaction time. It is noted that in his evidence Mr Jamieson accepted as reasonable a perception/reaction time of 1.5 seconds.
(6) He was taken through a number of distances which established that at a speed of 82 kph the perception point could have occurred between 70 to 94 m to the west of King Street.
(7) One of the factors affecting this calculation was extension of the yaw marks as plotted by Mr Feenan on figure 3 to his report. It was put to Mr Keramidas that this drawing was correct. He explained plausibly why it could not be correct expressing the view, also stated by Mr Jamieson, that it was not possible to initiate a yaw to the left when steering to the right. Further, Mr Feenan, in plotting the extension to the tyre marks, had not taken into account the evidence of Ms Rosekelly concerning the steer to the right.
(8) For the reasons already noted, Mr Keramidas did not accept that it was appropriate to rely upon the rule of thumb because it was inconsistent with the nature of the damage to the utility and with the radius of the yaw. At a speed of 55 kph he estimated that the radius of the yaw marks would be tighter. Mr Feenan also referred to the unreliability of any assessment of impact speed based on the application of the rule of thumb where stiffness coefficients of the vehicle involved were not available, where the impact was to the side rather than to the front of the vehicle and where the impact was with a tree or pole rather than a wider obstacle.
(9) Mr Keramidas did not accept that the rate of rotation was rapid as stated by Mr Jamieson. Acknowledging that he had originally made an error in his calculation of the slip angle, he corrected his estimate to 1/3 of a degree per metre which he said was very slow. It was also Mr Feenan’s opinion that the rate of rotation was not rapid.

92 The likely condition of the power pole was also a factor in contention. Both Mr Feenan and Mr Jamieson preferred the conclusion that that the fracture of the pole three metres above ground was likely to be the result of its age and condition. They accepted that in those circumstances the fracture could occur at an impact speed of less than 60 kph. Mr Keramidas approached this issue on the basis that the pole remained structurally sound, particularly since it was embedded in concrete, and that therefore it was unlikely that it would fracture at an impact speed of less than 60 kph.

Issue 1 – analysis and findings

93 In respect of the power pole, the only conclusion that can be drawn is that there was insufficient evidence as to its condition.

94 The version of events provided by Ms Rosekelly was clearly incorrect.

95 I was urged to reject the opinions of Mr Keramidas as unscientific because they were not based on precisely what had occurred, in particular because the exact perception reaction time and the exact point in time at which Ms Rosekelly saw the second vehicle were not known.

96 However, not only did Mr Keramidas point to problems in applying the rule of thumb, Mr Feenan, who was called on Ms Williams’ behalf, placed great emphasis upon its unreliability.

97 Mr Jamieson accepted Mr Keramidas’ method as correct and accepted his arithmetic as correct. The only difference between Mr Jamieson and Mr Keramidas arose out of their assessed rate of rotation of the utility.

98 Mr Keramidas provided measurements and calculations to demonstrate the foundation for his conclusion that the rate of rotation was slow. No similar exercise was undertaken by Mr Jamieson to support his opinion of a rapid rate of rotation. Mr Feenan stated that the utility rotated slowly.

99 I accept that it is rarely possible to reconstruct the circumstances of an accident with total accuracy. Much depends on assumption, estimate and opinion. The best that can be done is that the experts take such evidence as exists and attempt to provide a picture which is as accurate as possible.

100 In this case, Mr Jamieson relied on the photogrammetry plan at a 1:200 scale. Mr Feenan pointed to the dangers of relying on this document. Mr Keramidas acknowledged this and undertook his own survey, based on the white marks placed on the road by Senior Constable Harman. Again, concerns were raised about the precise accuracy of these marks, applied as they were under torchlight.

101 Notwithstanding these difficulties, I have more confidence in the results obtained by Mr Keramidas through his independent survey and measurements taken at a 1:1 scale.

102 His estimate of 82 kph can only be regarded as an indication of the speed of the utility at the commencement of the yaw and not as an established fact. However, I accept this estimate as the basis for my finding that, at the point where the utility was suddenly steered to the left side of Glebe Road, Ms Williams was driving it at a speed significantly higher than the speed limit of 60 kph.

103 On the basis of a speed in excess of 60 kph, I find that the distance at which Ms Williams would have perceived and reacted to any second vehicle would have been greater than 60 metres from the King Street intersection and could have been as much as 100 metres away.

104 In the course of oral submissions I expressed concern about the prospect that Ms Rosekelly could have seen details on the second vehicle such as the colour of the number plate and a rust mark close to the number plate. In response, it was submitted for Ms Williams that the evidence did not establish that Ms Rosekelly had noticed the second vehicle at the same time as Ms Williams.

105 Ms Rosekelly did make it clear that she was paying no attention to Ms Williams’ driving or to circumstances external to the utility because she was the DJ in the vehicle and was attending to the CD player. She did state, however, that she saw the second vehicle before Ms Williams initiated the steer to the right of Glebe Road and, it would appear, before or at about the same time as Ms Williams reacted.

106 I do not accept that at night from a distance greater than 60 metres it would be possible to sight the colour of a registration plate and a nearby rust mark.

107 In relation to the evidence of Mr Scorse and Mr Sheridan, the inconsistencies in their evidence are acknowledged and accepted given the time lapse between the date of the accident and dates upon which their statements were provided.

108 It was submitted that Mr Scorse had given evidence to the effect that the maroon car turned left from Glebe Road into Chatham Road. This was not his evidence. He stated (T.405):

A maroon car came around the corner at the same time I was turning onto Glebe Road, pulled up, just five metres inside the intersection.

109 At no stage was he asked about or did he indicate the direction from which the maroon car came.

110 Even were I to accept that the maroon car turned left from Glebe Road:

(1) It turned the corner after a period of time in which Mr Scorse stood, took his bicycle, rode it to the corner of Glebe Road, spoke with Mr Sheridan and started to pedal towards Glebe Road.
(2) It could have come from King Street after the impact.
(3) Pure speculation would be involved in inferring that:
(a) some guilty motive prompted the young couple to walk away from the maroon car in the direction of Merewether;
(b) the older woman who walked to the maroon car and drove it away did so in order to protect the young couple;
(c) the sound described by Mr Scorse coming from the maroon car was an indication of a mechanical defect;
(d) as a result of the defect the maroon car could travel only slowly;
(e) the capacity for slow travel accounted for its delay in arriving in Chatham Road after the accident.
(4) It was particularly difficult to draw an inference that there was a mechanical defect in the maroon car when there was no evidence that it operated other than normally when it was driven away.
(5) There are two possible explanations for the absence of a police record concerning the presence of the maroon car. One is that the police officer to whom Mr Scorse spoke was sufficiently unconvinced of its involvement in the accident to regard the presence of the vehicle as irrelevant to the police investigation. The other is that Mr Scorse is mistaken in his recollection of the events of the evening.

111 I do not accept the evidence of a drawing made by Ms Rosekelly five days after the accident. She herself stated that some weeks after the accident she had been unable to fill out a form because:

…I couldn’t use my right hand for a long time because of the lacerations under my arms, so that’s why it’s not in my writing. That’s why the signature’s a bit scribbled. (T.485)

112 I have been prepared to overlook inconsistencies in the evidence of independent witnesses on the basis that they provided statements some time after the accident. I am not prepared to take the same approach to the considerable inconsistencies in the evidence of Ms Rosekelly and her father in relation to the hospital drawing.

113 Ms Rosekelly stated that she told her parents about the circumstances of the accident and that in response to the many questions asked by her mother, she drew it and then drew the car. Mr Rosekelly stated that she suddenly asked for a piece of paper and drew only the rear of the car.

114 The evidence concerning the drawing of the car is rejected.

115 For these reasons, I have not been satisfied on the balance of probabilities that a second car caused or contributed to the accident.

116 There will be a verdict for the Nominal Defendant on both claims.

117 As a consequence, the cross claims in proceedings 248 of 2005 will be dismissed.

ISSUE 2 – DUE INQUIRY AND SEARCH

118 I will determine this issue in the event that these claims proceed further.

119 Evidence of the inquiries made by those representing Ms Williams and Ms Rosekelly is contained in the affidavits of Ms Crouch (Exhibit PP) and of Mr Foggo (Exhibit RR). The statements of Mr Scorse and Mr Sheridan were said to have resulted from the press advertisements published on behalf of Ms Williams.

120 In addition, the Police Service sought information through media sources for the purposes of its investigation.

121 The Nominal Defendant criticised these efforts to locate witnesses to the accident on the basis that attempts should have been made to track down the maroon car by knocking on doors in King Street and further to the east in Glebe Road. Nor had inquiries been made of the Roads and Traffic Authority concerning the ownership of cars fitting the description given by Ms Rosekelly.

122 There was evidence of an investigator’s report attached to Mr Foggo’s affidavit which included the negative results of door knocking in King Street and Glebe Road in the immediate vicinity of the accident.

123 It is always possible after the event to identify other steps that could have been taken. The test however is whether the search has been due.

124 I am satisfied that such searches as were undertaken were sufficient to meet the requirements of due inquiry and search. I would not have decided these claims against Ms Williams and Ms Rosekelly on the basis that the searches were less than perfect.

ISSUE 3 – NEGLIGENCE ON THE PART OF MS ROSEKELLY

Ms Rosekelly’s knowledge of Ms Williams’ licence status

125 At the time of the accident Ms Williams held a learner driver’s licence. Ms Rosekelly denied that she had been aware that Ms Williams held less than a full driver’s licence.

126 Ms Rosekelly said that the issue was never discussed with Ms Williams. She said she observed Ms Williams to be a safe, competent driver when she allowed her to drive the utility.

127 Ms Williams claimed that she told Ms Rosekelly before driving the utility for the first time that she was a learner driver. Her evidence of the conversation was to the following effect (T.26/27):

Jodie: Would you like to drive?

Niki: Jodie, I’ve only got my L’s.

Jodie: That’s all right, I’m on my blacks.

128 There was also evidence of Ms Williams and her stepfather, Mr Graham, of a tirade delivered two to three weeks prior to the accident in which he said to Ms Rosekelly:

Let Niki stand on her own two feet, get her own licence, be independent and stop being her personal minder and taxi 24/7. (T.424)

129 Ms Rosekelly agreed that the incident reported by Ms Williams and Mr Graham had in fact occurred. She said she did not remember any reference to a licence during the course of the conversation.

130 It was not submitted on Ms Rosekelly’s behalf that I should reject the evidence of Ms Williams and Mr Graham. Rather, it was said that Ms Rosekelly’s knowledge of the status of Ms Williams’ licence was irrelevant. However, to the extent that it may be relevant, this evidence is accepted for the following reasons:

(1) While neither Ms Williams or Ms Rosekelly was a particularly impressive witness, I have no reason to reject the evidence of Mr Graham. The fact that he did not recall the details of all surrounding circumstances does not, in my view, provide a reason to reject the essential part of his evidence.
(2) Other evidence suggested that Ms Rosekelly had a degree of pride in the utility and in her driving experience and capacity at 19 years of age. These factors render it improbable that she would fail to question the licence status of another 19 year old.

131 I find that Ms Rosekelly on 6 June 2002 was aware that Ms Williams was the holder of a learner driver’s licence.

Duty of Care

132 It was argued on behalf of Ms Rosekelly that mere knowledge that a person is not licensed is insufficient to found an obligation in the nature of a duty of care. It was accepted that Rickets v Laws (1988) 14 NSWLR 311 established the principle that both a driving instructor and pupil may at once be drivers for the purposes of the Motor Accidents Compensation Act 1999 and that this principle extends to a person in a vehicle in the capacity of a supervising driver for the purposes of transport regulations.

133 It was argued that for this principle to apply it was necessary to establish that there existed on the part of the non-driver:

(1) knowledge of the inexperience and lack of competence of the actual driver; and
(2) consent to act as the supervising driver.

134 On this basis it was submitted that the issue was whether the level of Ms Williams’ competence as a driver was such that no supervision was required so that when Ms Rosekelly travelled as a passenger she was not undertaking a supervisory role.

135 There was evidence of Ms Rosekelly, Mrs Williams and Ms Williams herself to the effect that she was competent to drive. Ms Williams said that at the time of the accident she believed she was ready to take her driving test and to secure her provisional licence. Ms Rosekelly assessed Ms Williams as a safe, confident and good driver who did not speed.

136 It was submitted, and I accept, that Ms Williams’ agreement with the proposition that her driving the utility when she was a learner driver was dangerous was made with the benefit of hindsight.

137 The submissions, however, do not fit well with the evidence of Ms Williams that she did in fact receive some driving instruction from Ms Rosekelly. Further, there was evidence of Ms Rosekelly that she would have intervened if a driver of her utility was driving too fast or otherwise in a fashion she considered to be inappropriate.

138 There was no evidence that Ms Williams had ever driven any vehicle without an accompanying fully licensed driver. There was no evidence that she had driven the utility unless accompanied by Ms Rosekelly.

139 This evidence, in my view, represented more than an indication of Ms Rosekelly’s stated tendency to be a back seat driver who gave driving advice to everyone, including her father.

140 I find that the evidence established that Ms Rosekelly was aware of Ms Williams’ inexperience and of her need for instruction and supervision. I find further that she undertook the role of supervisor when Ms Williams was driving the utility.

Acceptance of the role of supervisor

141 The issue in this case was whether on this occasion Ms Rosekelly had relinquished that role because she was aware that she was intoxicated by alcohol and not capable of performing it. The issue was not whether Ms Williams accepted responsibility for driving the utility without supervision.

142 This proposition arose out of the exchange between Ms Williams and Mrs Rosekelly immediately before leaving on the return journey to Newcastle when Mrs Rosekelly called out: Jodie, you’re not driving and Ms Williams responded: No, I’m driving, I’ll look after her. (T.34)

143 The problem with this proposition was that both Ms Williams and Ms Rosekelly denied that this exchange had anything to do with the extent to which Ms Rosekelly was affected by alcohol. Further, while the results of the blood test (Exhibit 1D-14) taken from Ms Rosekelly one and a half hours after the accident indicated that at the time of the accident her likely blood alcohol level was 0.114 (Exhibit 1D-16), Ms Rosekelly herself denied that she was affected by alcohol to any significant degree.

144 Having regard to Ms Rosekelly’s evidence of her own assessment of the extent to which she was intoxicated, there is no reason to conclude that she considered that she was so affected by alcohol that she should relinquish that role or that she did in fact relinquish it.

Alcohol

145 The question was raised in the context of whether it was obvious to Ms Williams that Ms Rosekelly was severely affected by the effects of the alcohol that she had consumed prior to the accident.

146 Dr Starmer reported that the effects would have been obvious.

147 Ms Williams was employed in the restaurant and bar at the Exchange Hotel and had undertaken a course in the responsible service of alcohol which included instruction on recognition of the visible signs of intoxication.

148 Further, Ms Williams ultimately conceded that what she told a medical practitioner, Dr Cotton, was true, namely that she had been aware on the night of 5/6 June 2002 that Ms Rosekelly was pissed (T.198/199). She also agreed that Ms Rosekelly was unfit to drive because of the amount of alcohol that she had consumed.

149 I was referred to the statement of Dixon J in Insurance Commissioner v Joyce (1948) 77 CLR 39 at 57 that a passenger who:

… knowingly accepts the voluntary services of a driver affected by drink … cannot complain of improper driving caused by his condition because it involves no breach of duty.

150 It was pointed out that Justice McHugh stated in Joslyn v Berryman (2003) 214 CLR 552 at [29] that it was still open to a driver to defend a claim on the basis of no duty to a passenger who accepts a lift with a driver knowing that the driver is seriously intoxicated.

151 On this basis it was submitted that Ms Rosekelly owed no duty of care to Ms Williams as her supervisor at the time of the accident.

152 The issue therefore was whether Ms Williams knew that Ms Rosekelly was so seriously intoxicated that she was not capable of supervising her driving.

153 Ms Williams’ evidence was that she considered persons to be severely affected by alcohol if they were falling down, unable to stand straight, slurring their speech or spilling drinks. There was no evidence of conduct of this type by Ms Rosekelly prior to the accident. Mrs Rosekelly clearly appreciated that Ms Rosekelly should not drive the utility. There was no evidence that, having been assured that she was not driving, she considered her so grossly affected that she should not be going out at all.

154 In the circumstances, I am not satisfied that it was established that Ms Williams at the age of 19 years had sufficient experience of life to appreciate that, although Ms Rosekelly was not fit to drive, she was not capable of performing her function as her driving supervisor.

Breach of Duty

155 It was argued that there had been no breach of duty on Ms Rosekelly’s part because there was no action that she could have taken, as supervisor, to prevent the accident.

156 I agree that the vague snippets referred to by Ms Williams and Mrs Williams were insufficient to establish that Ms Rosekelly interfered in the driving of the utility before it commenced its slide into the power pole.

157 The experts agreed that Ms Rosekelly’s attempts to turn the steering wheel to the right after the slide had commenced had no effect on the path of travel of the utility.

158 There was therefore no evidence of any direct intervention by Ms Rosekelly in the driving of the utility leading to the impact with the power pole.

159 There were, however, three aspects of the evidence that I regarded as indicative of a failure on Ms Rosekelly’s part to perform her supervisory role:

(1) She admitted that she did not give any attention to that supervisory role. Rather she adopted the role of DJ and attended to the CD player.
(2) She allowed Ms Williams to drive at a speed in excess of the 60 kph limit.
(3) She screamed a warning concerning the median strip at a point where there was adequate distance to allow Ms Williams to slow and pass it without incident.

160 It is highly probable that it was this scream that prompted the inexperienced Ms Williams to oversteer the utility to the left.

161 I find that Ms Rosekelly was in breach of her duty of care to Ms Williams in failing to perform her obligations to Ms Williams as her driving supervisor.

ISSUE 4 – MS WILLIAMS’ NEGLIGENCE

162 Ms Williams relied solely on the presence of a second unidentified motor vehicle in defending the claim brought by Ms Rosekelly.

163 Having rejected that scenario, the inevitable conclusion must be that Ms Williams failed to control the utility.

164 I have already noted that there was insufficient evidence to find that there was interference by Ms Rosekelly with the steering wheel before the utility began to slide.

165 The experts agreed that the anti-clockwise slide was the result of a sudden steer of the utility to the left.

166 Ms Williams was unable to supply a reason for this sudden steer.

167 I have already stated my conclusion that it was probably the result of the warning screamed by Ms Rosekelly concerning the upcoming median strip. This warning was given at a time when Ms Williams was driving the utility at an excessive speed.

168 In the circumstances, I find her in breach of her duty of care to Ms Rosekelly.

ISSUE 5 – CONTRIBUTORY NEGLIGENCE

169 It follows from my findings of primary negligence that each of Ms Williams and Ms Rosekelly bear responsibility in contributory negligence for the damage they suffered.

170 Ms Williams, as the driver of the utility, was in a position to cause greater harm. I have therefore assessed her contributory negligence at 60% and that of Ms Rosekelly at 40%.

ORDERS

171 Verdict for the Nominal Defendant in each of proceedings 217 of 2005 and 248 of 2005.

172 The cross claims in proceedings 248 of 2005 are dismissed.

173 Verdict for Ms Williams in proceedings 217 of 2005. The judgment sum is to be reduced by 60% to take account of her contributory negligence.

174 Verdict for Ms Rosekelly in proceedings 248 of 2005. The judgment sum is to be reduced by 40% to take account of her contributory negligence.

175 The proceedings in each claim are stood over to a date to be fixed to deal with issues of costs and for the entry of final orders.

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